[OFFICIAL ENGLISH TRANSLATION]
Citation: 2005TCC720
Date: 20051103
Docket: 2005-2227(IT)I
BETWEEN:
MICHELLE LAPIERRE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Dussault J.
[1] These are appeals from determinations by the Minister
of National Revenue (the “Minister”) dated June 18 and May 20, 2004, according
to which the appellant is not entitled to the Canada Child Tax Benefit with
respect to her son Mathieu Giard for the base years 2001 and 2002 relative to
the period from August 2002 to June 2004.
[2] The basis of the determinations is outlined in
sub-paragraphs a) to d) of paragraph 5 of the Reply to the Notice of Appeal
which read as follows:
[TRANSLATION]
(a) The appellant and Jean-François Giard are the parents of
Mathieu Giard born on March 23, 1988 and of Audrey Anne Giard born on May 18,
1989;
(b) Following the appellant’s and Mr. Giard’s separation, the
couple’s children resided with the appellant until the month of July, 2002;
(c) Pursuant to the court order of July 31, 2002, Mathieu went
to live with his father while Audrey Anne stayed with the appellant;
(d) Mathieu resided with his father during the entire period in
dispute.
[3] The appellant contests subparagraphs c) and d). She
was the only witness.
[4] The appellant explained that in spite of the interim
order of temporary measures set down on July 31, 2002, which determined that
the child Mathieu Girard’s residence was with his father, she herself was
always available to receive Mathieu at her residence where she kept a room for
him so that, as she stated, Mathieu could come to her residence as often as he
wished and that he actually did go regularly both during the week and on
weekends.
[5] The appellant stated that in April 2003, she wanted to
request Mathieu’s custody anew but since the child’s father did not attend
court, the July 31, 2002 order was maintained. In July 2003, Mathieu was struck
by bone cancer and the appellant devoted more time to take care of him both at
the hospital as well as at her residence and had to be frequently absent from
work to do so. From the beginning of November 2003 to the beginning of June
2004, the appellant was on sick leave, and thus had more time to take care of her
son at the hospital during his treatments and at her residence during his
convalescence. In fact, she filed as evidence a letter from her employer and
from a work colleague confirming her frequent absences and her work stoppage to
take care of her son.
[6] The appellant stated that Mr. Giard, the child’s
father was initially in agreement with her receiving the Canada Child Tax
Benefit with respect to both children even though the July 31 court order had
determined Mathieu’s residence to be with him. She also emphasized that the Tax
Benefit she received with respect to Mathieu was used to maintain living
accommodation that allowed for him to have his own room when he came to her
residence and to cover the additional costs necessary to take care of him, especially
during his illness. However, she acknowledged that Mathieu was living mainly at
his father’s residence. On the other hand, she stated that it was not only
every second weekend that she had cared for him but that Mathieu had come
regularly to her residence.
[7] Counsel for the respondent insists on the fact that
the two orders about temporary measures, namely that of July 31, 2002 (Exhibit
I-1) and that of April 15, 2003, (Exhibit I-2), determine that Mathieu’s
residence was set down to be with his father.
[8] The interim order of temporary measures of July 31
reads as follows as to Mathieu Giard’s residence:
[TRANSLATION]
“The court determines that Mathieu Giard’s
residence will be with his father.”
[9] The only relevant clause of the April 15, 2003 order
reads as follows:
[TRANSLATION]
“[…] Reserves the applicant’s rights to apply for
access to the minor child Mathieu.”
[10] As can be seen, neither of the orders determines the
appellant’s access to her son Mathieu. Counsel for the respondent also relies
on the appellant’s testimony as well as the documents filed in evidence by her
to conclude that the child Mathieu Giard lived mainly with his father.
[11] The appellant testified that she had always been
available to receive her son at her residence, that he could come there as
often as he wished and that in fact he had come regularly during the week and
on weekends. She also explained that she had had to be absent from her work
frequently to take care of him during his illness, either at the hospital or at
her residence, and that she had been even more available for this purpose
during her work stoppage from November 2003 to June 2004.
[12] For the purposes of the Canada Child Tax Benefit, the
definition of “eligible individual” found in Section 122.6 of the Income Tax
Act (the “Act”) sets out a certain number of conditions that an
individual must satisfy at “a given time”. For purposes of calculating the
Benefit pursuant to subsection 122.61(1), account is to be taken of the
eligible dependents with respect to which a person is the eligible individual
at the beginning of each month. That is the “given time” referred to in the
definition of “eligible individual” in Section 122.6 of the Act. So the determination as to
whether an individual satisfies the conditions set out in the definition is
made on the basis of the situation prevailing at the beginning of each month.
The first condition for an individual to be considered an “eligible individual”
is stated in paragraph (a) of the definition of this expression which requires
that this individual “reside with the dependent”. It is with respect to this
condition only that the Minister made the determinations in issue.
[13] Although residence is the fundamental concept applied
to determine if a person is subject to income tax under the Act, that
term is nonetheless not defined therein and it is the courts that have
attempted to establish its scope. Essentially a question of fact, a person’s
residence in a given place is determined by a certain number of criteria of
time, object, intention and continuity that do not necessarily always carry the
same weight and which can vary according to the circumstances of each case. (see Thomson v.
M.N.R., [1946] S.C.R. 209). All things considered, residence implies a certain
constancy, a certain regularity or else a certain permanence according to a
person’s usual lifestyle in relation to a given place and is to be
distinguished from what might be called visits or stays for specific purposes
or of a sporadic nature. When the Act sets as a condition to reside with
another person, I do not consider it appropriate to attribute to the verb “to
reside” a meaning which deviates from the concept of residence as it has been
developed by the courts. To reside with someone is to live or stay with someone
in a given place with a certain constancy, a certain regularity or else in an
habitual manner.
[14] It is in fact in such terms that the condition “to
reside with a dependent” has been analyzed (see, inter alia, S.R. v.
Canada, [2003] T.C.J. No. 489 (QL), Bachand v. Canada, [2004] T.C.J.
No. 26 (QL) et Boutin v. Canada, [2004] T.C.I. No. 379 (QL)).
[15] Relative to this condition of residing with the
dependent, nothing in the appellant’s testimony nor in the documents submitted
in evidence is really precise as to the frequency and duration of her son’s
stays at her residence, so that one cannot conclude that she actually was
residing with her son Mathieu at the beginning of each month during the period
from the month of August 2002 to the month of June 2004.
[16] As a result,
the appeals are dismissed.
Signed
at Ottawa, Canada, this 3rd day of November 2005.
« P. R. Dussault »
on this 10th day
of February 2006.
Jean Mongenais, Translator
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