Citation: 2005TCC572
Date: 20050902
Docket: 2005-670(IT)I
BETWEEN:
RÉJEANNE MORIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Garon D.J.
[1] These are appeals from determinations by the Minister of National Revenue ("the Minister") dated June 18, 2004 in which the base taxation years at issue are 2001 and 2002. Through these determinations, the Minister established that the appellant was not the eligible individual in respect of her son, Guy Morin-Paquette, for the period starting in June 2003 and finishing at the end of September of the same year. The Minister set the overpayment at $861.67.
[2] The appellant, Alain Paquette and their son, Guy Morin-Paquette, all testified at the hearing.
[3] Based on the testimony of the appellant and her son Guy and the documentary evidence, I accept the following facts.
[4] On February 14, 2002, Alain Paquette was awarded legal custody of his son, Guy Morin-Paquette, through a judgment homologating an agreement that gave him custody.
[5] The son, who turned 17 in September 2003, began living with his mother on May 25, 2003. According to him, he made that decision because of the unhealthy atmosphere that existed at his father's home. He referred to what he called quarrels between him, his father and his father's spouse and also between his father and his father's spouse, both of whom, he said, took drugs or narcotics.
[6] During the period at issue, the son attended an educational institution in Rouyn-Noranda and took a school bus in Rollet to get to and from school. Rollet is a small municipality in which his father and his mother lived in different places. The distance between Rollet and Rouyn-Noranda is about 50 to 60 kilometres. Guy Morin-Paquette did not think fit to notify the school authorities of his new address when he began living with his mother permanently, since there was only one month left before the end of the school year.
[7] Even before he started living with his mother permanently, Guy Morin-Paquette often went to her home, and he regularly ate his meals there. Even before May 25, 2003, he rarely ate dinner at his father's home, [translation] "three or four times . . . over a year or two".
[8] The son had health problems in August 2003; he had mononucleosis. The appellant took care of her son during that time. Her son saw a doctor three times in August 2000, and each time his mother accompanied him, as shown by Exhibit A-2. It was the appellant who obtained the medication her son needed during that period. She also provided him with clothing and room and board. The son had a room at his mother's home before the period at issue. His father's spouse occasionally made him lunch during the winter of 2002-2003. After May 25, 2003, he went to visit his father once or twice a week, except during the summer of 2003, when he did not go.
[9] The appellant filed a motion dated September 2, 2003 (Exhibit A-1) in the Superior Court, district of Rouyn-Noranda, for the purpose, inter alia, of obtaining legal custody of her son. The motion was not contested by the father. On September 26, 2003, the Superior Court rendered a judgment (Exhibit A-1) awarding the appellant custody of her son. The following extracts from the judgment are relevant:
[TRANSLATION]
[3] The applicant stated that the minor child has been living with her since May 25, 2003. She said that the relationship between the child and his father has deteriorated, and she gave several examples.
[4] Guy Morin-Paquette is now 17 years old, and he admitted that he has lived with his mother since May 25. He admitted that his relationship with his father has deteriorated, and he also gave a few examples. He would like his mother to have custody of him now.
[10] Explanations were provided concerning Exhibit I-1, which indicates that the son [translation] "was picked up and dropped off at the home located at 835 Route 101 North in Rollet". This was his father's residence. The document in question was drawn up at the beginning of the 2002-2003 school year. The son testified that he had told the bus driver, who lived in Rollet and knew him, to let him out at his mother's home or his father's home and to pick him up at the specified location the next day. He also occasionally got off the bus at the home of his paternal grandmother, who lived on the same road in Rollet as Alain Paquette and the appellant. Only 10 to 12 students used the school bus in Rollet.
[11] Alain Paquette never went to the parents' meetings organized by the administrators of the school attended by his son.
[12] Mention was also made of the fact that some of Guy Morin-Paquette's personal effects had been moved from his father's home to the home of his paternal grandmother. He explained that he had gradually transported certain items, such as radios and musical instruments, from his father's home to his mother's. He also said that some other items, like a desk, a bench with weights and a television stand, had been moved to the home of his paternal grandmother.
[14] Alain Paquette stated under oath that his son had lived with him during the period at issue and had gone to his mother's home occasionally. With respect to the appellant's motion to vary custody, he stated that he had not read it. At another point, he said that he had not seen it. He had only a very vague recollection of the Superior Court's two-page judgment of September 26, 2003. He said that his son had gone to his grandparents' home more often than his mother's during the period at issue. According to Alain Paquette, he was on good terms with his son during the period in question. He also confirmed his son's assertion that he had had drug problems for a while. He then refused to answer the other questions asked by the appellant's counsel.
Analysis
[15] It follows from the foregoing that the only issue is whether the appellant was an "eligible individual" as that expression is defined in section 122.6 of the Income Tax Act ("the Act"). The relevant part of the definition is reproduced below:
122.6
"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,
. . .
and for the purpose of this definition,
(f) where the 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;
[16] Section 6302 of the Income Tax Regulations establishes the factors referred to in paragraph (h) of the definition of "eligible individual" in section 122.6 of the Act.
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.
[17] The specific issue is whether the son, Guy Morin-Paquette, resided with his father or his mother from June 1, 2003 until the end of September of the same year.
[18] The appellant and her son clearly stated that he had lived with her during that period, whereas Alain Paquette categorically stated the opposite. These contradictory statements raise a credibility issue.
[19] I have carefully reviewed the behaviour of these three persons. The testimony of the appellant and her son seems quite credible to me. I note in particular that the son answered all the questions clearly and categorically, without hesitating. I do not find it surprising that the son, who was almost 17 years old, moved in with his mother at the end of May 2003 and that a few weeks later she took steps to seek legal custody of him from the Superior Court. This conduct strikes me as plausible in the circumstances.
[20] Alain Paquette's version reveals contradictions concerning his knowledge of the motion to institute proceedings of September 2, 2003 and the judgment of September 26, 2003 on that motion. Some of his answers were evasive. During his testimony, he was also insolent and aggressive.
[21] I therefore conclude that the son, Guy Morin-Paquette, resided with his mother during the relevant period. The appellant thus satisfies paragraph (a) of the definition of "eligible individual" in section 122.6 of the Act. Although this is not absolutely necessary, I will add that the appellant maintained a secure environment in which she and her son resided. It was also the appellant who took the necessary steps when her son had to go see a doctor during his illness in August 2003.
[22] Accordingly, I conclude that the determinations made by the Minister under the Income Tax Act must be referred back to him for reconsideration and redetermination on the basis that the appellant is the eligible individual for the purposes of section 122.6 of the Act in respect of Guy Morin-Paquette for the period of June 2003 to September of the same year. As a result, the appeals from these determinations are allowed.
Signed at Ottawa, Canada, this 2nd day of September 2005.
Alban Garon
Translation certified true
on this 7th day of October 2005.
Audra Poirier, Translator
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