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Citation: 2005TCC158
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Date: 20050307
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Dockets: 2004-2968(IT)I
2004-2969(IT)I
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BETWEEN:
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LOUISE BÉLISLE,
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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
Tardif J.
[1] This case involves two appeals. The first
appeal concerns the redeterminations regarding the Canada Child Tax Benefit
(the "CCTB") and the second appeal concerns the redeterminations
regarding the Goods and Services Tax Credit (the "GSTC"). The appeals
were heard on common evidence.
[2] The issues are:
Docket 2004-2968(IT)I:
The issues are whether, for the 2000 and 2001 base taxation
years,
(a) the Appellant was the individual eligible to
receive the CCTB for her daughter, Marilyn, for the period from July 2001 to
June 2002, for the 2000 base taxation year, and from July 2002 to June 2003,
for the 2001 base taxation year;
(b) the Minister was justified in determining that the Appellant had
received an overpayment of $2,372.00 and $203.67 for the 2000 and 2001 base
taxation years, respectively.
Docket
2004-2969(IT)I:
The issues are whether, for the 2001 and 2002 base taxation
years,
(a) the Appellant was the individual eligible to
receive the GSTC for her daughter, Marilyn, for the specified months of July
and October 2002, as well as the specified months of January and April 2003 for
the 2001 taxation year, and for the specified months of July and October 2003,
as well as the specified months of January and April 2004 for the 2002 taxation
year;
(b) the Minister was justified in determining that the Appellant
received an overpayment of $325.00 and $80.14, for the 2001 and 2002 taxation
years, respectively.
[3] To make and justify the assessments under
appeal, the Minister of National Revenue (the "Minister") assumed the
following facts:
Docket
2004-2968(IT)I :
(a) The Appellant has a daughter, Marilyn, born on July 7, 1984; (admitted)
(b) The Appellant has always been eligible to receive the CCTB for her
daughter, Marilyn; (admitted)
(c) On May 29, 2001, Marilyn applied for the CCTB for her child, born
on May 12, 2001; (no knowledge)
(d) On the form "Canada Child Tax Benefit Application" Marilyn
indicated that she had moved on June 30, 2000; (admitted)
(e) Marilyn's CCTB Application was processed according to the normal
procedures and her child was entered in to the computer system on June 13,
2001; (no knowledge)
(f) No change was made to the Appellant's file regarding the CCTB at
that time; (no knowledge)
(g) The Appellant's file does not mention any communication between her
and a representative of the Minister regarding the effect of the changes
mentioned in subparagraph (e) above; (denied)
(h) Further to a project of the Validations and Controls Section,
Headquarters, the Minister's representative noted that since Marilyn had become
a parent on May 1, 2001, and had moved out, the Appellant was no longer
eligible to receive the CCTB for her daughter, Marilyn, as of that date;
(i) A letter to that effect, dated August 18, 2003, was sent to the
Appellant; (admitted)
(j) On September 19, 2003, the Minister determined that the Appellant
was no longer the individual eligible to receive the CCTB for her daughter,
Marilyn, for the period from July 2001 to June 2002 for the 2000 base taxation
year, and the period from July 2002 to June 2003 for the 2001 base taxation
year, and determined that the Appellant had received an overpayment of
$2,372.00 and $203.67 for the 2000 and 2001 base taxation years, respectively.
Docket
2004-2969(IT)I :
(a) The Appellant has a daughter, Marilyn, born on July 7, 1984; (admitted)
(b) The Appellant has always been eligible to receive the GSTC for her
daughter, Marilyn; (admitted)
(c) On May 29, 2001, Marilyn applied for the CCTB for her child, born
on May 12, 2001; (admitted)
(d) On the form "Canada Child Tax Benefit Application" Marilyn
indicated that she had moved on June 30, 2000; (admitted)
(e) Marilyn's CCTB Application was processed according to the normal
procedures and her child was entered in to the computer system on June 13,
2001; (no knowledge)
(f) No change was made to the Appellant's file regarding the GSTC at
that time; (no knowledge)
(g) The Appellant's file does not mention any communication between her
and a representative of the Minister regarding the effect of the changes
mentioned in subparagraph (e) above; (denied)
(h)
Further
to a project of the Validations and Controls Section, Headquarters, the
Minister's representative noted that since (no knowledge)
(i) Marilyn moved on June 20, 2001;
(ii) Marilyn was an eligible individual for the specified months of July
and October 2002, as well as the specified months of January and April 2003 for
the 2001 taxation year, and for the specified months of July and October 2003
as well as the specified months of January and April 2004 for the 2002 taxation
year;
The Appellant was no
longer eligible to receive the GSTC for her daughter, Marilyn, for the
subsequent taxation years;
(i) On August 29, 2003, the Minister determined that the Appellant was
no longer the individual eligible to receive the GSTC for her daughter,
Marilyn, for the specified months of July and October 2002, as well as the
specified months of January and April 2003 for the 2001 taxation year, and for
the specified months of July and October 2003 as well as the specified months
of January and April 2004 for the 2002 taxation year, and determined that the
Appellant had received an overpayment of $325.00 and $80.14 for the 2001 and
2002 taxation years, respectively.
[4] The Appellant, whose financial means were very
limited, lived with her daughter, Marilyn, who was then 16 years old; Marilyn
gave birth to Maxime on May 12, 2001; she then decided move in with her
common law spouse, the child's father.
[5] The relationship with her mother was and
remained excellent. The mother and daughter regularly spoke and visited each
other.
[6] The Appellant testified that she had made every
effort to inform the competent authorities of the change of address. According
to her, a person in authority representing the Minister told her at the time
that she was entitled to the CCTB and the GSTC and could continue to receive
them. She thus continued to receive the CCTB and the GSTC.
[7] She stated that all the money received was used
to buy clothing, medication, food, the essentials for her daughter, Marilyn.
Marilyn confirmed, in her testimony, her mother's statements, adding that it
was often for the essentials that should could not pay for given her young
family's difficult financial situation; her spouse worked, but earned minimum
wage.
[8] Those are roughly the relevant facts submitted
in support of the two appeals.
[9] I have no doubt that the money in question,
following the redeterminations, was wisely spent and that the expenses were
incurred in the interest and for the well-being of her daughter and her
grandson, Maxime.
[10] The nature of the expenses, as well as the way
in which the money was spent, makes the Appellant's case sympathetic.
Unfortunately, I do not believe that this is enough to get around the residence
criteria and this is certainly not enough to meet the numerous conditions
required to determine the validity of the Appellant's appeals, namely that,
during the periods at issue, she assumed responsibility for the care and
upbringing of Marilyn.
[11] After the move, despite her young age, Marilyn
henceforth had her own family home. As of that moment, she absolutely no longer
resided at her mother's home, even though the emotional connections were very
strong.
[12] Although the Appellant was very concerned with
the well-being of her daughter and her grandson, and although she offered her
moral support, advice and financial support, the requirements regarding care
and upbringing set out in section 122.6 are much more rigid and restrictive
conditions than that which existed between the Appellant and her daughter.
[13] One thing is certain, it is clearly not possible
to determine that the following two conditions were met, namely that the
Appellant
(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;
[14] First, there is no ambiguity as to the
residence. Second, although a minor, Marilyn, through the birth of Maxime and
the choice of living with her spouse, the child's father, showed her capacity
to be independent, which is not to say that she no longer needed the advice and
support of her mother.
[15] The criteria set out in section 6302 of the
Regulations for determining what constitutes the care and upbringing of a
qualified dependant are numerous, but also very specific. They are the
following:
(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.
[16] Furthermore, Marilyn chose, with or without her
mother's consent, to live her own life, according to her own expectations and
especially according to her own notions, and all that in a context where the
relationship with her mother remained harmonious and very respectful.
[17] The Appellant submitted that she had informed
the tax authorities of her change of address and the change of address of her
daughter, Marilyn. In light of the testimony of the person responsible for the
Appellant's files during the objection, there was reason to believe that she
contacted the wrong place or confused certain steps.
[18] Although the Appellant's case evokes compassion,
unfortunately I cannot allow the appeal solely because of a possible error or
the fact that it is a touching case.
[19] I have no doubt that the money paid to the
Appellant without her being entitled to it was useful and necessary with regard
to the circumstances. I also have no doubt that the money was used to subsidize
the numerous specific, costly and essential needs of a new mother breast
feeding her child and who wanted to feed it well by consuming food that is
healthy, but unfortunately often more expensive.
[20] However, there is not doubt that she no longer
lived with her mother. Even though the relationship was excellent, even though
the evidence showed that Marilyn still had a significant need for her mother
and that her mother was not only receptive but highly cooperative, I still
cannot find that she lived with her mother.
[21] The Appellant's daughter lived with her spouse
and their child, Maxime, and thus lived in an independent family unit even
though it is clear that she needed both material and human assistance from her
mother and got it. Even though part of the money received, maybe even all of
it, was invested in the numerous needs of her daughter, a young mother, that
does not straighten out the situation.
[22] Unfortunately, those facts do not make it
possible to allow the Appellant's appeals because the conditions set out by the
legislator have not been met.
[23] Although my jurisdiction is limited to
determining whether the assessment was valid, I strongly suggest that those who
will be responsible for recovering the money at issue take into consideration
the fact that the evidence clearly establishes that the Appellant did not have
the ability to repay the money that was plainly used to meet essential needs.
[24] The Appellant submitted that my judgment in Desbiens
v. Canada, 2004 T.C.C. 162, [2004] T.C.J. No.
116 (Q.L.), was relevant and made it possible to allow her appeal.
[25] I do not believe that this interpretation is
admissible because it is a very special case.
[26] The young girl showed a lot of
maturity, giving herself the mission of protecting and supporting her father
who at the time had multiple problems that concerned her. She thought that her
presence had healing effects on her father. Lastly, the evidence indicated that
it could not be determined that she lived continuously and exclusively with her
father.
[8] The appellant has never hidden the fact that Laurie lived partly
with her father, yet the appellant has not cut her ties with her daughter. On the
contrary, she has shown considerable flexibility and maturity by respecting her
daughter's decision to maintain a presence with her father, who is not very
reliable and is somewhat irresponsible.
. . .
[11] The evidence showed that the minor child, Laurie, resided as much
with the appellant as with her father. Furthermore, this is not just a simple
statement by the appellant; this fact is supported by the various documents,
which clearly indicate that Laurie had the same address as her mother, the appellant.
[12] The appellant testified in a completely flawless manner. She
explained the context and the specific circumstances that had led to Laurie
living occasionally with her father. Although she had been only 15 years of
age, a number of evidentiary elements seemed to show that she had acted as her
father's guardian rather than the reverse.
[13] One thing is certain: throughout the entire reference period, the
appellant demonstrated a nearly daily presence and a completely unquestionable
interest in her daughter's well-being.
[27] In the instant case, the situation is totally
different. The evidence not only shows that there was a disruption, but also a
sort of reorientation of Marilyn's life in the sense that she decided to make a
new home with her child and spouse, the father of that child.
[28] Clearly, that was a radical change in relation
to her young age. Marilyn undoubtedly needed the advice, support and
cooperation of her mother, who seemed very receptive to those new needs.
[29] As to the Appellant's argument that an employee
had told her that she was entitled to the income tax credits, the evidence in
that regard is deficient, even somewhat unlikely given the explanations of
Jean-Marc Jacob, who explained that the information service on that subject
deals with specific files hence the fact that it was very unlikely that a
person in that service misinformed the Appellant on that matter, even more so
because it was a very simple and unambiguous, even basic, question.
[30] It is not necessary to pursue the analysis of
that argument of bad advice or the possible error because even if that had been
shown, it would not have had any effect on the validity of the appeal.
[31] The Honourable Justice Bowie of this Court, in Kennedy
v. Canada, [2001] T.C.J. No. 486 (Q.L.), clearly expressed the state
of the law on that matter:
17 . . . Putting this argument at its highest, I am
prepared to assume that the Minister's officials in fact advised the Appellant
through this document, that her pension income entitled her to the credit that
she claims. Such advice, if given, would have been patently wrong, but
erroneous advice whether it comes from officials of the Minister, the Minister
himself, or some private source, simply cannot change the law as written by
Parliament and raise an entitlement to tax credits which in reality is not
found in the words of the Act: see: M.N.R. v. Inland Industries Limited.
[32] In conclusion, I would like to reiterate my
recommendation that the very special facts of this case with regard to the
potential recovery measures be taken into account, even though the appeals must
be dismissed.
[33] For all of those reasons, the appeals
must be dismissed.
Signed at Ottawa, Canada, this 7th day of March 2005.
Tardif
J.
Translation
certified true
on this day 19th
day of August 2005.
Aveta Graham,
Translator
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