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Citation: 2005TCC29
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Date: 20050216
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Docket: 2004-910(IT)I
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BETWEEN:
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LINDA SEYMOUR,
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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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____________________________________________________________________
For the Appellant: The Appellant herself
Counsel for the Respondent: Emmanuelle Faulkner
____________________________________________________________________
REASONS FOR JUDGMENT
(Delivered orally from the Bench at
Montreal, Quebec, on November 25,
2004)
McArthur J.
[1] These are appeals in respect of
determinations by the Minister of National Revenue that the
Appellant had received overpayments of child tax benefits for the
base taxation years 1999, 2000 and 2001 in the amounts of
$1,144.24 (October 2000 to June 2001), $2,071.67 (July 2001 to
June 2002) and $1,909.22 (July 2002 to June 2003), respectively,
as well as overpayments of goods and services tax credits for the
2001 and 2002 taxation years in the amounts of $112.00 and
$28.50, respectively.
[2] The Appellant and Danny Confalone
were married in 1985 and had two children, Michael born in 1986
and Amanda born in 1987. The Appellant and Danny have been living
separate and apart since prior to 1999. Both parties claim to be
the eligible individual with respect to Michael during the
relevant periods. The Appellant admits that Michael was living
with his father five days per week during the periods because his
father lived closer to the school Michael attended. However, the
Appellant states that she is the eligible individual for her son
because (a) her former spouse could not receive the child tax
benefits because he did not file income tax returns; and (b) she
and Danny decided that she would receive the benefits and she
would pay for her son's clothing, school, bus pass, and other
expenses.
[3] The evidence was contradictory as
to who paid for Michael's expenses and as to whether the
Appellant saw Michael every weekend or every fourth weekend. Be
that as it may, it is clear that Michael was living with his
father during the periods in issue. The question of residency is
very clear in section 122.6 of the Income Tax Act
with respect to child tax benefits and "eligible individual" is
described as follows:
122.6 In this subdivision,
"eligible individual" in respect of a qualified dependant at
any time means a person who at that time
(a) resides
with the qualified dependant,
(b) is the
parent of the qualified dependant who primarily fulfils the
responsibility for the care and upbringing of the qualified
dependant,
(c) ...
[4] Counsel for the Respondent
provided the following decisions in respect of child tax benefits
and eligible individual: Bachand v. Canada, 2004TCC1,
Burton v. Canada, [1999] T.C.J. No. 833, and Loyer v.
Canada, [2001] T.C.J. No. 71. In Bachand, O'Connor J.
stated:
... The benefit is payable to an "eligible individual". In
order to qualify as an eligible individual, the individual
at that time must (a) reside with the qualified dependant; and
(b) be the parent who primarily fulfils the responsibility for
the child's care and upbringing. In this appeal, it is necessary
for the Appellant to demonstrate that both of the above
requirements have been met.
In Burton, Sarchuk J. stated:
... I can only conclude that the Appellant during the
relevant period resided with Cory Garrard and therefore, cannot
be said to have "resided with the qualified dependants" as that
term is used in section 122.6 of the Act.
In view of my conclusion with respect to this requirement, I need
not consider whether the Appellant was the individual who was
primarily responsible for the care and upbringing of the
qualified dependants. ...
And in Loyer, Lamarre J. stated:
To satisfy the definition of "eligible individual", a taxpayer
must meet two cumulative conditions, namely residing with the
qualified dependant and primarily fulfilling the responsibility
for the care and upbringing of the qualified dependant.
It is possible for a taxpayer to be considered the primary
caregiver yet not be the eligible individual because he or she
did not meet the residency requirements.
[5] During the periods in issue, the
Appellant's son Michael resided with his father and for that
reason, I dismiss the appeals.
Signed at Ottawa, Canada, this 16th day of February, 2005.
McArthur J.
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