Citation: 2005TCC252
Date: 20050425
Docket: 2004-2996(IT)I
BETWEEN:
DONNA BARNES,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Angers, J.
[1] The Minister of National Revenue (“the Minister”) reviewed
the appellant’s entitlement to the Canada Child Tax Benefit for the period from
July 2002 to February 2004 inclusive (“the period at issue”). The Minister
determined that the appellant was not the eligible individual during the period
at issue and assessed an amount of $1,711.28 for the recovery of the
overpayment of benefits the appellant received during the period at issue, throughout
the 2001 and 2002 base years. The appellant filed a valid Notice of Objection
and the Minister confirmed the assessment on June 1, 2004. The appellant hereby
appeals that determination.
[2] Teri Leigh Sharpe is the qualified dependant for the
period at issue, which ends on her 18th birthday. She was therefore
16 years old at the beginning of the period. The appellant is Teri’s
grandmother.
[3] Teri’s parents were separated in 1991 and both have had
joint custody. Her father Earl has the day-to-day care and control of her and
her mother has access rights. Until February of 2002, Teri resided with her
father and stepmother in Charter’s Settlement near Fredericton, New Brunswick. At that time, a
dispute arose between Teri, her father, and stepmother, which resulted in
Teri’s moving in with her grandparents who live in Cambridge-Narrows, about an
hour’s drive from Fredericton. The appellant made the arrangements
for Teri to transfer to the Oromocto High
School from the Fredericton High School. Her belongings were sent over to the appellant’s house
and Teri was given her own room. The appellant attended to all of Teri’s needs,
and with the help of her husband and another person, provided her with
transportation to and from school.
[4] The end of the 2002 school year is the beginning of the
period at issue. The only issue to be decided is whether the appellant is the
eligible individual in respect of Teri during the period in question. The
definition of eligible individual is found in section 122.6 of the Income
Tax Act (the “Act”) and reads:
“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) is resident in Canada or, where the person is the
cohabiting spouse or common-law partner of a person who is deemed under
subsection 250(1) to be resident in Canada throughout the taxation year that
includes that time, was resident in Canada in any preceding taxation year,
(d) is not described in paragraph 149(1)(a) or (b),
and
(e) is, or whose cohabiting spouse or common-law partner is,
a Canadian citizen or a person who
(i) is a permanent resident within the meaning of subsection 2(1) of
the Immigration and Refugee Protection Act,
(ii) is a temporary resident within the meaning of the Immigration
and Refugee Protection Act, who was resident in Canada throughout the 18
month period preceding that time, or
(iii) is a protected person within the meaning of the Immigration
and Refugee Protection Act,
(iv) was determined before that time to be a member of a class
defined in the Humanitarian Designated Classes Regulations made under the
Immigration Act,
and for the purposes of this definition,
(f) where a qualified dependant resides
with the dependant's female parent, the parent who primarily fulfils the
responsibility for the care and upbringing of the qualified dependant is
presumed to be the female parent,
(g) the presumption referred to in
paragraph (f) does not apply in prescribed circumstances, and
(h) prescribed factors shall be
considered in determining what constitutes care and upbringing;
[5] Section 6302 of Part LXIII of the Regulations made under
the Act reads as follows:
6302. 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.
[6] In order to be an eligible individual, the two most determinative
factors are whether that person resides with the qualified dependant and
whether it is the person who primarily fulfills the responsibility for the care
and upbringing of the qualified dependant at any given time. The factors set
out in section 6302 of the Regulations are of assistance in determining what
constitutes care and upbringing of a qualified dependant.
[7] The case that comes most commonly before this Court
involves a determination as to which parent is the eligible individual. This
particular case involves a maternal grandmother and the child’s stepmother. In
addition, we have a 16-year-old qualified dependant whose level of dependency
is somewhat limited. The evidence also reveals that there was a serious
communication gap between the maternal grandparents and the father and
stepmother throughout the period at issue, a problem that has persisted to this
day.
[8] The battle over who is the eligible individual has widened
the gap such that it makes it very difficult for this Court to rely on the
evidence of the family members, including that of the father. Each witness
tends to either exaggerate or colour their version of the facts to favour their
role as the primary caregiver. As for Teri, she is unfortunately caught in the
middle of all of this and has no real advantage as to the outcome of the appeal.
[9] Teri moved in with her grandmother in February 2002. At
the end of the 2002 school year, in mid June, Teri got a job picking
strawberries in Jemseg, New Brunswick. She did that for three
to four weeks and during that time continued to reside at her grandmother’s residence.
Her grandfather would provide her with transportation to get to and from work.
Teri spent the rest of her summer babysitting her half-sister at her mother’s
place and returned to live at her grandmother’s house at the start of the
school year. She continued her schooling at the Oromocto High School and her grandfather and other individuals drove her to and
from school each day. Her grandmother provided her with all her needs.
[10] In November 2002, Teri got a part-time job in Fredericton. At first, she worked only on
Wednesday nights and stayed over at her father’s residence. On week-ends, she would
visit with either her mother or father. Just before Christmas, Teri began
working weekend shifts but not on a regular basis initially. She would stay at
her father’s residence when working and depending on where she stayed over, transportation
was provided by her father, mother or grandfather. Her clothes were kept at her
grandmother’s house although she kept some at both her father’s and her mother’s
residences. Her school material and computer were kept at her grandmother’s
house.
[11] This situation went on until June 2003. Teri got herself
another job in Fredericton. At first, she worked two to three
shifts per week and mostly on weekends. She stayed at her mother’s place since
she also babysat her half sister. In September 2003, she went back to school
and returned to live with her grandparents.
[12] Teri found out in late September 2003 that she was
expecting. She stayed in school and continued her part time job until the
middle of December. She gave birth on January 5, 2004. During the Christmas
break, she spent a week at her mother’s place and the rest of the time at her
father’s place. She also spent more time with her father and stepmother before
giving birth because her grandparents were ill with the flu. After giving
birth, Teri went back to her grandparents.
[13] Teri considered her residence to be that of her
grandparents during the period at issue and I accept that as a fact. Although
she may have spent time with her mother and father, I find that, for all
intents and purposes, Teri has resided with the appellant during the entire
period. The fact that Teri had to sleep over at different places to allow her
to have jobs or that she stayed temporarily at her father’s place so that she
could work part time is not sufficient to eliminate the fact that the
appellant’s home washer permanent place of residence.
[14] As mentioned earlier, all testimony has been somewhat
tainted or coloured to favour the appellant or the stepmother. Teri has the
least to gain in all of this and I accept her testimony to be the most
truthful. I have carefully examined Exhibit A-3, which is a letter that Teri
signed and forwarded to Revenue Canada to help clarify the issue as to who was to receive the Canada Child Tax
Benefit. I find the content of that letter far too precise and detailed to be
the work of Teri alone nor do I think that her father wrote it. I believe that
her stepmother had a lot more to do with it than she admitted at the hearing since
she had a lot to gain from it.
[15] I believe that the appellant and Teri’s father and
stepmother have all contributed equally in providing Teri with the medical care
she needed and in providing her with transportation. At her age, she was quite
capable of doing many things on her own, thereby having fewer needs than those
in the factors this Court must consider. All those involved seem to share the transportation
costs and the medical expenses such that factors (c) and (d) are equally shared
by the appellant and the stepmother.
[16] As for the period of time when Teri had to attend prenatal
classes and deal with the issue whether to put her child up for adoption, the
assistance provided by her stepmother is a valuable consideration in weighing
the evidence under factor (g). I must look at the overall picture and not just
a short period of time as the factor refers to the provision, generally, of guidance
and companionship. One factor stood out during the testimony of the stepmother
is when she said that the entire hearing was about money. In fact, one could
detect from her evidence that money was a serious concern for her. The money
received from the Canada Child Tax Benefits was deposited in a bank account for
Teri’s education. Teri is enrolled at St. Thomas University and has not yet received that money.
[17] I find that factors (a) and (b) in particular, as well as
(d), (e) and (g) favour the appellant. When Teri moved out in February 2002 to
reside with the appellant, it was a permanent move. The appellant became her
lifeline and provided Teri with a place that she could call home under any
circumstances. This gave Teri a secured environment in which she could reside
and receive what could still be provided in care at her age. The appellant
provided that care without financial assistance from either Teri’s mother or
father. Although everyone cared for Teri and provided assistance, I find that
the appellant was the primary caregiver throughout the period at issue.
[18] The appeal is allowed and the determination is sent to the
Minister for redetermination on the basis that the appellant is entitled to the
Canada Child Tax Benefit for the period at issue.
Signed
at Edmundston, New Brunswick, this 25th day of April 2005.
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