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Citation: 2005TCC27
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Date: 20050106
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Docket: 2004-1165(IT)I
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BETWEEN:
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JOSÉE ROY,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
(Delivered orally on December 3, 2004, at Québec,
Quebec.)
Lamarre
Proulx J.
[1] This is an appeal from a determination of
child tax benefit with regard to the Appellant’s son André.
[2] The Minister of National Revenue (the
"Minister") determined that, for the period from February to June
2003, the Appellant was not the eligible individual with regard to her son
André.
[3] The facts relied on by the Minister to make
that determination are described in paragraph 5 of the Reply to Notice of
Appeal (the "Reply") as follows:
[translation]
(a) The Appellant is
the mother of André born on July 9, 1986;
(b) During the period
at issue, André lived with his father, Guy Marcoux, whose residence was located
near the school attended by André;
(c) During the period
at issue, André visited his mother on weekends and pedagogical days;
(d) The Minister
determined that the Appellant was not the eligible individual with regard to
her son André for the period beginning in February 2003 for the 2001 base
taxation year, in accordance with section 122.6 of the Income Tax Act
(the "Act");
(e) Subsequently, at
the end of the school year, André went back to live with the Appellant and the
Minister determined that the Appellant was the eligible individual from July
2003 for the 2002 base taxation year.
[4] The Appellant denies paragraphs 5(b) and
5(c).
[5] The Appellant submitted, as Exhibit A-1, a
divorce decree and an agreement on corollary relief. That agreement states that
the Appellant has custody of her two minor children André and Jessica.
[6] She submitted certain documents as Exhibit
A-2. One of those documents shows that during the period at issue, she paid
$60.07 in tuition fees. The other documents are outside the period. She
explained that André came to her home every weekend, that it was because
André's school was much closer to his father's home, that both parents thought
it was a good idea that he live with his father during the school year. She
testified that André left on Sunday with the frozen food she had prepared, that
she was the one who washed his clothes and that, when all is said and done, she
continued to be primarily responsible for his care.
[7] She admitted having signed a settlement
agreement on January 27, 2003, in which the parties agreed that André would
live with his father during the week. That agreement was filed as Exhibit I-1.
With respect to meals, she indicated that from February 2003, André left her
place with less food.
[8] André's father, Guy Marcoux, testified. He
stated that he prepared his son's meals during the week, that they went for
walks, bike rides, and sometimes went to the movies or to a restaurant. He also
stated that he often drove his son to the Canadian army reserve centre on
weekends.
[9] He bought him work boots and some other
items. He admits that André's clothes were at Ms. Roy's place and that André
only brought with him what he would need for the week. He also admits that
André liked going back to his Mother's place on the weekends because his
friends lived in that neighbourhood.
[10] The father went at least twice to meet with
school officials concerning some problems that André was having.
Analysis and conclusion
[11] The definition of "eligible
individual" in section 122.6 of the Income Tax Act (the
"Act") requires that the individual reside with the dependant and
that the individual is the person who primarily fulfils the responsibility for
the care and upbringing of the dependant.
[12] Counsel for the Appellant stressed that the
Appellant's son André had not stopped living with the Appellant. He kept his
room, his personal effects were there and he had his friends all around him.
His staying with his father was merely an arrangement like if André had a been
boarder at his father's place during the week.
[13] That is an interesting argument. In some
ways, André could be considered to have continued residing with his mother. It
may be a case of dual residence.
[14] In those circumstances, it is necessary to
determine which individual primarily fulfils the responsibility for the care
and upbringing of the dependant. Accordingly, it is necessary to consider the
factors set out in section 6302 of the Income Tax Regulations, which
reads as follows:
6302 Factors —
For the purposes of paragraph (h)
of the definition "eligible individual" in section 122.6 of the Act, the
following factors are to be considered in determining what constitutes care and
upbringing of a qualified dependant:
(a) the supervision
of the daily activities and needs of the qualified dependant;
(b) the maintenance
of a secure environment in which the qualified dependant resides;
(c) the arrangement
of, and transportation to, medical care at regular intervals and as required
for the qualified dependant;
(d) the arrangement
of, participation in, and transportation to, educational, recreational, athletic
or similar activities in respect of the qualified dependant;
(e) the attendance
to the needs of the qualified dependant when the qualified dependant is ill or
otherwise in need of the attendance of another person;
(f) the attendance
to the hygienic needs of the qualified dependant on a regular basis;
(g) the provision,
generally, of guidance and companionship to the qualified dependant; and
(h) the existence
of a court order in respect of the qualified dependant that is valid in the
jurisdiction in which the qualified dependant resides.
[15] The fact that a child lives with one of his
or her parents five out of seven days is usually an indicator that, with
respect to daily activities, it is that parent who is most responsible for the
child's care. It is the father who, from February to June 2003, had that role.
[16] During those five
days, it was the father who at his own expense provided housing and food.
Therefore, that cannot be compared to a boarding school.
[17] During the week the father provided
companionship to his son. They ate their meals together, they took walks, went
to the movies and to restaurants.
[18] Even on the weekends, he often drove André
to his reserve activities.
[19] He arranged for a claim slip for André for
health purposes.
[20] As a result, I find, based on the evidence
submitted, that during the period at issue, from February to June 2003, the
father was primarily responsible for the care of his son André.
[21] Accordingly, the appeal is dismissed.
Signed at Ottawa, Canada, this 6th day of January 2005.
Lamarre
Proulx J.
Translation
certified true
on this 8th day of
April 2005
Aveta Graham,
Translator
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