[OFFICIAL ENGLISH TRANSLATION]
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Reference: 2004TCC162
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Date: 20040305
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Docket: 2002-4788(IT)I
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BETWEEN:
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LOUISE DESBIENS,
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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
Tardif J.
[1] This is an appeal from
determinations regarding the 1998, 1999, and 2000 base years.
[2] The appeal stems from Canada Child
Tax Benefits redeterminations for which notices were sent to the
appellant on July 19, 2002; the Minister of National Revenue
("the Minister") revised to nil the benefits already received by
the appellant for the 1998, 1999, and 2000 base years with regard
to her daughter Laurie for the period from October 1999 to
June 2002 inclusive.
[3] Following the issuing of notices
of redetermination of Canada Child Tax Benefit dated July 19,
2002, against the appellant with regard to the 1998, 1999, and
2000 base years, the Minister established the following amount as
an overpayment:
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a) 1998 -
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$1,203.75
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b) 1999 -
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$1,872.53
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c) 2000 -
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$2,172.00
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$5,248.28
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[4] While maintaining the right to
complete and qualify certain assumed facts, the appellant made
the following admissions:
a) The
appellant and Steve Tremblay are the parents, among other things,
of a daughter named Laurie, who was born on June 17, 1984.
b) In February
2002, the father, Steve Tremblay, filed achild tax benefit
application, claiming a change of recipient with regard to his
daughterLaurie for a retroactive period beginning on
September 30, 1999, the date the couple separated.
c) On April
26, 2002, the Minister sent the appellant and Steve Tremblay a
questionnaire to determine which parent was eligible to receive
benefits for the child, Laurie.
d) In her
response to the questionnaire sent by the Minister on
April 26, 2002, the appellant declared, among other things,
that her daughter Laurie no longer lived with her but was living
with her father since their separation.
e) Laurie
Desbiens-Tremblay, the appellant's daughter, ceased to be a
qualified dependent in July 2002.
f) With
regard to his daughter Laurie, Steve Tremblay was presumed by the
Minister to be the person who primarily fulfilled the
responsibility for her care and upbringing for the period from
October 1999 to June 2002 inclusive.
[5] The appellant explained at length
that she had never stopped looking after and ensuring the
well-being of her daughter Laurie even after her separation from
the father, Steve Tremblay.
[6] She said she had spent much more
than the amount of the benefits received for her daughter's
well-being. She submitted conclusive documentary evidence that
clearly established that she had spent significant amounts
because of her strong interest and deep concern that her daughter
lack nothing.
[7] Overall, her testimony repeated
the information and points communicated to the Canada Customs and
Revenue Agency in response to a letter dated April 26, 2002, sent
to determine whether she was entitled to receive benefits. I
think it is important to set out some of the excerpts set forth
by the appellant. (Exhibit I-1)
[TRANSLATION]
[...]
RESIDENCE
1. Did the
aforementioned children live with you during the period at issue?
(No)
2. Did the
aforementioned children also live with someone else during that
period? (Yes)
If you answered yes, please explain.
Laurie lives with her father, Steve Tremblay, but I was the
one who looked after her education, clothing, and medical and
dental care. This was the same before our separation, and I had
specified this on the agreement written after our separation.
According to the agreement, I was to partially provide for the
monetary and other needs of my daughter Laurie (medication,
education, clothing, etc.). Since our separation, I have provided
fully for her needs.
[...]
CARE AND UPBRINGING
2. How have
you ensured that your children live in a safe home?
I visit her at least twice a week to ensure that everything is
going well, she is not lacking food, and the home is clean and
safe. If I had noticed anything negative, let me assure you that
if the situation was not corrected . . . (see Appendix 1,
Question 2)
3. What have
you done to obtain regular medical care for your children and
provide transportation so that they receive this care? State what
you do when other medical care is needed.
I have made regular dentist appointments because my children
suffer from dentinogenesis imperfecta . . . I have always looked
after going to the dentist with them, and it is always me who
pays the transportation expenses.
[...]
5. When your
children were sick, what did you do?
I consulted a doctor with Laurie when she needed it, and if she
needed medication, I got it for her. When she needed me, I took
her to my home until she got better. When she was sick, her
father would call me so that I would go take care of her.
[...]
Appendix I
P. 3 Care and Upbringing
Q. 1 During the day she calls me
regularly, and in the evenings I call her to find out how her day
and her studies are going. It is very important to me that my
daughter be successful.
On days when she does not have school, I call her later to find
out if everything is going OK for her at home, and if she wants
to come see me, I go and pick her up.
Q. 2 I wanted to take my daughter with
me. I want to let you know that I paid part of the rent for 355
Côte Ste-Anne in 2000. I am sending you the receipt and the
cheques I had to write . . .
Q. 4 I got my daughter a job at the
same place I work. In that way I can know and see more often what
her psychological condition is, because I think she is very
vulnerable, and I try to take care of her as much as possible. I
look after taking her to work and other places.
Q. 7 I believe I am her confidante,
and she does not hesitate to ask me for guidance when certain
situations occur. I encouraged her to take her driving course and
get her driver's license, which I paid for.
I got her a small job with me, and I am very proud to work with
my daughter.
She is currently studying nursing, and I encourage her daily
in her studies and her life.
She knows she can count on her mother at any time.
Appendix 2
P. 4
Q. 8 I have always looked after
dentist and doctor appointments. I was always the one who went to
school for parent meetings, and I have always looked after
homework and lessons . . .
When I left her father, Steve Tremblay, on September 1, 1999, he
was under heavy medication for depression. At that time, I gave
Laurie the choice to come live with me. She was 15 years old at
that time, so I think she was capable of deciding who she wanted
to live with.
Nevertheless, I told her I would always look after her physical
and mental well-being, and that is what I have done ever
since.
Laurie has never lacked anything, because I myself went to check
if she needed anything, and a number of times I had to go grocery
shopping (unfortunately, I did not keep those bills), and at the
beginning of the separation, I went to help Laurie take care of
the house to teach her how to get organized, because at that
time, her father was not fit to show her owing to his
psychological condition.
[...]
In June 2000 I helped Laurie pack and move, and I found places in
my family to store their furniture because they had rented a
furnished apartment.
In April 2002, I took the steps to find suitable housing for
Laurie and her father. He did not go to visit the housing I had
found them; I was the one who had to go take Laurie to see the
housing. Then I went with her father to sign the lease. (I had
found them housing two streets over from my home, so I could make
sure my daughter would be OK.) I am now looking for a stove and a
fridge for them; I have not found anything yet, but I will
continue looking.
I assure you that, even though Laurie is going to turn 18 in
June, I will continue to see that she does not lack anything. I
have always done so, and I will continue to be a listening ear
for her.
P.S. I am enclosing her tuition invoices, regular and other, in
Exhibit 5.
[8] The appellant has never hidden the
fact that Laurie lived partly with her father, yet the appellant
has not cut her ties with her daughter. On the contrary, she has
shown considerable flexibility and maturity by respecting her
daughter's decision to maintain a presence with her father, who
is not very reliable and is somewhat irresponsible.
[9] Subsection 122(6) of the Act
reads 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,
(c) is resident in Canada,
(d) is not described in paragraph 149(1)(a) or
149(1)(b), and
(e) is, or whose cohabiting spouse or common-law
partner is, a Canadian citizen . . .
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 122.6
eligible individual (f) does not apply in prescribed
circumstances, and
(h) prescribed factors shall be considered in
determining what constitutes care and upbringing.
[10] Section 6302 of the Income Tax
Regulations ("Regulations"), which is in Part LXIII of
the Regulations, contains a list of factors to be considered in
determining what constitutes care and upbringing of a qualified
dependant. It reads as follows:
6302. Factors - 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.
[11] The evidence showed that the minor
child, Laurie, resided as much with the appellant as with her
father. Furthermore, this is not just a simple statement by the
appellant; this fact is supported by the various documents, which
clearly indicate that Laurie had the same address as her mother,
the appellant.
[12] The appellant testified in a completely
flawless manner. She explained the context and the specific
circumstances that had led to Laurie living occasionally with her
father. Although she had been only 15 years of age, a number of
evidentiary elements seemed to show that she had acted as her
father's guardian rather than the reverse.
[13] One thing is certain: throughout the
entire reference period, the appellant demonstrated a nearly
daily presence and a completely unquestionable interest in her
daughter's well-being.
[14] The appellant did expressly state on
the questionnaire that her daughter resided with her father, but
is that sufficient to find that her appeal should be
dismissed?
[15] I acknowledge that I have been greatly
torn over the consequences of my response. Had it not been for
the appellant's lengthy explanations and numerous nuances given
on the questionnaire and the appendix, I would have had to
dismiss the appeal.
[16] However, in light of these
explanations, it seems that the minor child did not reside
exclusively with her father; from time to time, she also resided
with her mother, who was entitled to view, on a daily basis, the
housing occupied by her ex-husband; she had even taken
various steps to ensure that they would have decent housing, and
that a telephone line would be installed there to ensure
constant, daily supervision. My understanding of the residence
criterion does not require exclusivity; moreover, nothing
indicates that a qualified dependant cannot reside in two
locations, particularly when the two residences in question are
the father's residence and the mother's residence.
[17] For these reasons, the appeal is
allowed, and the assessments are vacated.
Signed at Ottawa, Canada, this 5th day of March 2004.
Tardif J.
Certified true translation
Colette Dupuis-Beaulne
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