Citation: 2005TCC509
Date: 20050815
Docket: 2004-349(IT)I
BETWEEN:
HÉLÈNE PICARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Deputy Judge Garon
[1] This is an appeal from a determination by the Minister of National Revenue ("the Minister") dated July 18, 2003, in which the base year in issue is 2001. By this determination, the Minister found that the Appellant was no longer eligible for the Child Tax Benefit for her daughter Jenny-Eve Drolet in respect of the period commencing in September 2002 and ending in June 2003. He also determined that the Appellant had received a $2,036.67 overpayment.
[2] The Appellant and her ex-spouse, Sylvain Drolet, testified at the hearing. Both of them are teachers.
[3] The Appellant testified that she continued to have custody of her daughter Jenny-Eve during the period in issue even though she acknowledges that on August 15, 2002, she left the family residence in Rouyn-Noranda where she had been living with her daughter. Commencing August 15, the Appellant went to live in an aboriginal community several hundreds of kilometres from Rouyn-Noranda for the purposes of employment in Kangiqsujuaq, a community in what is commonly known as the Far North. She returned to Rouyn-Noranda for only two weeks during the period in issue for the Christmas holidays.
[4] As for her daughter, Jenny-Eve, she continued to live in the family residence in Rouyn-Noranda with her father, who had moved in at the beginning of the period in issue.
[5] According to the Appellant's testimony, Sylvain Drolet was not on good terms with his daughter, who was 16 years old at the time in question.
[6] The Appellant stated that despite the physical distance, she continued to provide guidance to her daughter, and to counsel her and look after her psychological and other needs. She claims that she even made arrangements with another family in Rouyn-Noranda in case her daughter had problems with her father and it was no longer appropriate for her to live with him. The Appellant claims that she ensured that all her daughter's needs were met during this period of September 2002 to June 2003.
[7] The Appellant primarily fulfilled the responsibility for the expenses necessary to ensure her daughter's well-being. However, the father covered the telephone, electrical and food expenses. It should also be specified that Appellant and her ex-spouse jointly owned the family residence during the period in issue. The Appellant later became the sole owner.
[8] The evidence also discloses that the father made the meals for himself and his daughter. The daughter occasionally prepared her own meals. The father looked after his daughter's transportation so that she could participate in certain social, sporting and other activities. However, her friends or their parents often provided such transportation.
[9] The Appellant argued that she primarily fulfilled the responsibility for the care and upbringing of her daughter even though she was physically far away.
[10] Counsel for the Respondent, relying on sections 122.6 and 122.61 of the Income Tax Act and section 6302 of the Income Tax Regulations, submitted that the Appellant was not the eligible individual during the period in issue.
Analysis
[11] In light of the foregoing, the only issue is whether the Appellant was an "eligible individual" within the definition of this term in section 122.6 of the Act. The relevant portion of this definition is reproduced below:
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,
. . .
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;
[12] Section 6302 of the Income Tax Regulations sets out the factors referred to in paragraph (h) of the definition of "eligible individual":
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.
[13] Based on the evidence, it is indisputable that, despite the considerable distance between herself and her daughter during the period in issue, the Appellant was largely responsible for her daughter's upbringing. Indeed, before leaving for the Far North, she made certain arrangements to maintain a safe environment for her daughter while she was away, and even took measures in case the arrangements in place, which involved Jenny-Eve's father, proved inappropriate. Apart from the three aforementioned categories of expenses which the Appellant's ex-spouse looked after, it was the Appellant who was responsible for defraying all expenses. She followed her daughter's activities closely and communicated with her by telephone as needed.
[14] However, there is one factor, referred to in the definition of "eligible individual", which the Appellant did not meet during the relevant period: the requirement in paragraph (a) of the definition of "eligible individual" that the eligible individual reside with the qualified dependent. The evidence clearly shows that the mother did not reside with her daughter Jenny-Eve during the roughly 10-month period in issue. This is not a situation in which the word "resides" in paragraph (a) of the definition of "eligible individual" can be interpreted broadly, as it can be where the concept of "residence in Canada" is involved, for example. In the context of section 122.6, physical presence on the premises is required. In this regard, it is interesting - albeit not decisive because it is a regulatory enactment - to note the French wording of paragraph 6302(g) of the Income Tax Regulations, which states that one consideration for the purposes of the definition of paragraph (h) of the definition of "eligible individual" is "le fait d'être présent auprès d'elle", [being physically present for the person] where the person to whom the word "elle" refers is clearly the dependent.
[15] The circumstances in which the Appellant found herself bear partial resemblance to the facts in Walsh v. Canada, [2001] T.C.J. No. 11 (QL), which was decided by this Court. In Walsh, the mother devoted considerable care to the children, their studies and their recreational activities, despite being physically separated from them in that she resided 180 kilometres from the place in which the children lived with their father. Despite this, the Court held that the children spent the majority of their time with their father, and that the provision in issue relates to a quantitative measurement of time rather than a qualitative assessment of the capabilities of both parents in carrying out the functions set forth in section 6302 of the Income Tax Regulations, supra.
[16] I therefore find that the Minister's determination that the Appellant was not entitled to the Child Tax Benefit for the period in issue is well-founded. I must therefore dismiss the Appellant's appeal from this determination.
Signed at Ottawa, Canada, this 15th day of August 2005.
"Alban Garon"
Certified true translation
on this 6th day of March, 2006.
Garth McLeod, Translator
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