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Citation No. 2004TCC746
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Docket: 2003-4056(IT)I
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BETWEEN:
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BETTY ELILA DOUGHERTY,
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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
(Delivered
orally from the Bench at
Saint
John, New Brunswick on July 12, 2004)
Margeson J.
[1] The
matter before the Court for decision at this time is that of
Betty Elila Dougherty and Her Majesty the Queen.
[2] The
sole question before the Court is whether or not the Appellant has established
on the balance of probabilities that she was the eligible individual during the
period from July 1999 to 2002 under section 122.6 of the Income Tax Act
("Act"). Was she the "eligible individual" with
respect to the qualified dependant during the period in question?
[3] In
the years in question section 122.6 of the Act read as follows:
"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;
[4] Part
6302 of the Regulations sets out the factors which the Court must
consider in deciding whether or not the person has bet the definition of "eligible individual".
6302. For the purposes of paragraph
(h) of the definition of "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, education, 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
hygenic [sic] 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.
[5] The
whole case then boils down to whether or not the Appellant has met the burden
of showing that she was the "eligible individual" during the period
in question, bearing in mind that the Court Order provided that the child was
entitled to go with either parent, and he did, according to his evidence.
[6] The
evidence was very contradictory. The evidence of the mother of the child (the
Appellant) is completely at odds with the evidence of the father of the child.
[7] The
Court thought that the conflict might be resolved by the evidence of the child,
but it was not. The evidence of the child was different from the evidence of
the other two parties and indeed contradicted not one but both of the parties.
It can be of little assistance to either one.
[8] The
father is not before the Court as the Applicant or the Appellant. The Court
need not decide whether the father was the "eligible individual" or
not. It has to decide whether the Appellant has established on the balance of
probabilities that she was the "eligible individual" during the
period in question. But in doing so, it has to consider the evidence of the
father, the mother, the child and all of the documentary evidence which has
been given.
[9] The
documentary evidence is inconclusive, indeed part of it is at odds with the
other parts of it. For instance, the calendars that were introduced by both
parties are contradictory, one to the other. The Court considers the calendars
produced by the father and kept by him in his own handwriting. The Court
considers the calendars kept by the mother in her own handwriting. They both
said that they completed them at the time that the incidents occurred and yet
they are at odds with each other. Either somebody fudged the calendars or they
made incorrect entries in the calendars because they both cannot be right. They
are contradictory as is the evidence of the father and the mother. Further, the
evidence of the son has contradicted the evidence given by the father and it
has contradicted the evidence given by the mother. It does not resolve the
issue of the accuracy of either calendar.
[10] The Court considers other pieces of evidence such as the addresses on the
letters that were sent to the son. In some cases the evidence indicates that
the address of the son was the mother's address. In other cases the evidence
indicates that the address of the son was the father's address. The indicated
address depended upon where the son was at any given time. The Court cannot
draw any conclusive finding from a letter written to the son at the father's
address any more than it can draw any conclusive finding from a letter that was
written to the son at the mother's address.
[11] Counsel for the Appellant has put the matter squarely, in his
argument, that the burden is on the Appellant to establish on a balance of
probabilities that she was the "eligible individual" during the
period in question. He says that she has met that burden.
[12] He admits that the evidence of the ex-husband and wife are contradictory.
He agrees that the evidence is not reconcilable, and the Court agrees with him.
[13] He has concluded that Jeffrey's evidence was the middle ground and
does not aid either of the parties nor does it aid the Court in determining the
question of whether or not the Appellant was the primary caregiver.
[14] Counsel for the Appellant said that there is authority for the proposition
that such a finding requires that the primary care giver must provide the care
for more than 50 percent of the time. That is not the same as the majority of
the time or a substantial or reasonable portion of the time. The primary
caregiver has to be the person who provides the care more than 50 percent of
the time.
[15] Therefore, the burden on the Appellant is to satisfy the Court on the
balance of probabilities that she was the primary caregiver for more than
50 percent of the time.
[16] If the Court accepts her evidence, she was; if the Court accepts the
evidence of the husband she was not. If the Court accepts the evidence of the
son, it cannot decide either way. The Court cannot decide that she was because the
son said that they each gave 50 percent of the care. They each provided primary
care for him as referred to in the Regulations, 50 percent of the time.
[17] The Court is satisfied that during the period of time that the
Appellant and the ex-husband provided the care that they fulfilled all of these
requirements. That still begs the question as to whether or not the Appellant
has established on a balance of probabilities that she was the primary
caregiver for more than 50 percent of the time.
[18] With respect to the evidence given by the ex-husband, and the evidence
given by the Appellant, there is very little to choose between them. They both
gave evidence on basically the same issues and both provided documentary
evidence that they said they had prepared. They both had a letter saying that
the son was living with them. One said that he spent all of his time with his
mother or the majority of the time with his mother and another letter said that
he spent the majority of the time with his father and it suggested that the
father was the primary caregiver.
[19] The Court pays little attention to those letters and the calendars in
that respect, because they are at odds, first of all, with the son's general
testimony, and they are also at odds with the son's testimony that each of the
parents provided 50 percent of the care for him.
[20] The Court is satisfied that there was great pressure on the child. He
was treading very softly and he was being very careful not to side with one
party or the other. If either party goes away from this court thinking that the
son sided with one or the other they are wrong because he did not. He said what
he thought was right under the circumstances.
[21] Each party will probably believe that perhaps he was not being
absolutely straightforward. But the Court is satisfied that on the basis of his
evidence he was trying to be straightforward. He was of the firm conviction
that during the period in issue both the father and the mother provided the
primary care on an equal basis. The Court has to accept his testimony in that
respect. The testimony of the father and of the mother is completely
contradictory and there is no independent evidence to verify one or the other.
[22] There were apparently other people who knew what was going on in this
case. Relatives were referred to and neighbours were referred to. The mother
referred to neighbours who knew what was going on. The father referred to other
documents which he might have produced such as letters from doctors that might
have corroborated him when he said that he provided the majority of the visits
to the doctor but he did not produce them and the relatives and neighbours were
not called to testify. The son said that each of his parents took him their
50 percent of the time.
[23] If it were the determining factor and there was no evidence given by
the son to tilt the scale, the Court would find that the husband's evidence was
a little more direct, a little more complete, a little more conclusive and a
little more substantial. Overall, his evidence was probably more believable but
the evidence of both was contradicted by the evidence of the son.
[24] The end result is that the Court is not satisfied that the Appellant
has met the burden on her of establishing that during the period July 1999 to
July 2002 inclusive, the period in question, that she was the primary caregiver
or was the eligible individual during that period of time under the appropriate
legislation.
[25] Counsel for the Respondent says that that is the issue. The child
splits the case right down the middle. He submits that Jeffrey had pressure put
on him by both parties.
[26] The Court is satisfied from his evidence that he does not really
remember the oath that he was supposed to have signed. The Court is not
satisfied that it was necessarily signed by him in the presence of a
commissioner. He said that he never visited a commissioner's office. The Court
is not satisfied as to when it was actually signed.
[27] The Court is not satisfied as to when the other letters were signed.
There is a real basis there for the Court to have some considerable concern
about these documents. The Court does not believe that they are all that they
purport to be.
[28] In any event the Court is not satisfied on the balance of
probabilities that the Appellant was the eligible individual and was the
primary caregiver during the period in issue.
[29] The Court is not finding that the husband was the primary caregiver or
that anyone else was. The Court finds that the Appellant has not proved that
she was the primary caregiver.
[30] Now, looking at the case law, the case cited to the Court was that of Nelson v. RR. This case is
different from the case at bar because in that particular case Judge Campbell
(as she then was) decided that she was going to split the child tax benefit because
the divorced parents had both rather evenly contributed to the care and
upbringing of the children. In that particular case the Applicant was not
claiming the child tax benefit for both of the children anyway; he was only
claiming it for one and he was content to have his wife receive the benefit for
one child. That can be done. You could have a different primary caregiver for
one and another primary caregiver for a different child. You might have a
different primary caregiver for different periods of time.
[31] But there was no evidence before this Court to enable it to conclude
on a balance of probabilities that the mother was the primary caregiver for a
definite period of time, or that the father was the primary caregiver for
another period of time because the son's testimony is contrary to such a
conclusion. He said that during the whole period of time the mother and father
provided equally. He went two weeks with one and then he went two weeks with
the other. The father contributed equally to his sports activities. The father
contributed equally to his expenses. The mother contributed equally to the
house. They both had a room in their own house, for him and all of the other
factors were 50/50.
[32] The Court is unable to concede to counsel for the Appellant's request
in that regard, that it divide up the eligibility for a certain period of time
for each one because the Court does not have sufficient evidence which would
enable it to do that.
[33] At the end of the day then, the Court must dismiss the appeal and
confirm the Minister's assessment.
Signed at Ottawa, Canada, this 18th
day of November 2004.
Margeson
J.
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