[OFFICIAL ENGLISH TRANSLATION]
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Citation: 2004TCC290
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Date: 20040719
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Docket : 2003-3981(IT)I
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BETWEEN:
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SYLVIE BOUTIN,
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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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[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Bédard J.
[1] These are appeals under by the
informal procedure in respect of the Canada Child Tax Benefit
(CCTB) for the 1999 and 2000 base taxation years.
[2] On January 20, 2003, the Minister
of National Revenue (the "Minister") served the
appellant with notices of reassessment in respect of the CCTB for
the 1999 and 2000 base taxation years.
[3] These notices claimed CCTB
overpayments from the appellant in the amounts of $2,081.00 and
$790.66 in respect of the 1999 and 2000 base taxation years
respectively.
[4] In establishing and maintaining
the notices of reassessment in respect of the CCTB for the base
taxation years at issue, the Minister relied on the following
facts set out at paragraph 4 of the Reply to Notice of
Appeal:
a) the
appellant and Mr. Yvan Gauthier are the parents of a daughter,
named Priscilla, born on October 21, 1984;
b) Mr. Yvan
Gauthier has been cohabiting with Ms.
Évelyne Loiselle since January 1997;
c) Mr. Yvan
Gauthier was awarded custody of his daughter Priscilla under a
Court judgment dated January 18, 2001, in which the Honourable
Judge Guy Daigle approved an agreement, dated that same day,
which was reached and signed by the parties, which stated that
the child had been living with her father since March 2,
2000.
d) pursuant to
approval by a Special Registrar, Ms. Ghislaine Champoux, the
appellant obtained legal custody of her daughter Priscilla under
the terms of a Court judgment dated December 13, 2001;
e) prior to
the period at issue, the appellant was always considered the
parent who was primarily responsible for the care and upbringing
of her daughter Priscilla;
f) the
Minister's review demonstrated the following:
i) the
child Priscilla was not living with the appellant during the
period at issue;
ii) the
documentation provided by the parties, with the aim of
demonstrating that they were the parent primarily responsible for
the care and upbringing of the child Priscilla, did not argue in
favour of the appellant because, among other reasons, several of
the documents submitted did not relate to the period at
issue;
g) the
Minister considered that the appellant was not the parent who was
primarily responsible for the care and upbringing of her child
Priscilla for the period from July 2000 to October 2001
inclusive, in respect of the 1999 and 2000 base taxation
years.
[5] The only question at issue is
whether the Minister was wrong in deciding that the appellant was
not an eligible individual for the periods at issue.
[6] The definition of "eligible
individual" in subsection 122.6 of the Income Tax Act
(the "Act") was worded as follows at the
time:
"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 fulfills the responsibility for the care and upbringing
of the qualified dependant,
(c) is resident in Canada or, where the person is
the cohabiting spouse of a person who is deemed under subsection
250(1) to be resident in Canada throughout the taxation year that
includes that time, was resident in Canada in any preceding
taxation year,
(d) is not described in paragraph
149(1)(a) or (b), and
(e) is, or whose cohabiting spouse is, a Canadian
citizen or a person who
(i) is a
permanent resident (within the meaning assigned by the
Immigration Act),
(ii) is a visitor in
Canada or the holder of a permit in Canada (within the meanings
assigned by the Immigration Act) who was resident in
Canada throughout the 18 month period preceding that time, or
(iii) was determined
before that time under the Immigration Act, or regulations
made under that Act, to be a Convention refugee,
and for the purposes of this definition,
(f) where the qualified dependant resides with
the dependant's female parent, the parent who primarily
fulfills 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.
[7] For the application of paragraphs
(g) and (h) of the definition of "eligible
individual" under section 122.6 of the Act, sections
6301 and 6302 of Part LXIII of the Income Tax Regulations
(the "Regulations") stipulate as follows:
NON-APPLICATION OF PRESUMPTION
6301. (1) For the purposes of paragraph
(g) of the definition "eligible individual" in
section 122.6 of the Act, the presumption referred to in
paragraph (f) of that definition does not apply in the
circumstances where
a) the
female parent of the qualified dependant declares in writing to
the Minister that the male parent, with whom she resides, is the
parent of the qualified dependant who primarily fulfills the
responsibility for the care and upbringing of each of the
qualified dependants who reside with both parents;
b) the
female parent is a qualified dependant of an eligible individual
and each of them files a notice with the Minister under
subsection 122.62(1) of the Act in respect of the same qualified
dependant;
c)
there is more than one female parent of the qualified dependant
who resides with the qualified dependant and each female parent
files a notice with the Minister under subsection 122.62(1) of
the Act in respect of the qualified dependant; or
d) more
than one notice is filed with the Minister under subsection
122.62(1) of the Act in respect of the same qualified dependant
who resides with each of the persons filing the notices if such
persons live at different locations.
(2) For greater certainty, a person who files a notice referred
to in paragraph (1)(b), (c) or (d) includes
a person who is not required under subsection 122.62(3) of the
Act to file such a notice.
FACTORS
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.
[8] We will concern ourselves here
only with the conditions established under paragraphs (a)
and (b) of the definition of "eligible
individual" in section 122.6 of the Act. The aim is
therefore to determine:
i) whether the
appellant was residing with her child Priscilla during the period
from July 2000 to October 2001 inclusive;
ii) whether the appellant
was the parent who was primarily responsible for the care and
upbringing of Priscilla during this period.
The facts
[9] The appellant, her ex-husband Mr.
Yvan Gauthier, their child Priscilla, the mother and sister of
the appellant, and the spouse of Mr. Yvan Gauthier
testified.
[10] The evidence revealed that:
(i) from June 2000 on, Priscilla
was living full time with her friend, Patrick Labrecque, even
though she was 16 years old and even though her father had legal
custody of his daughter;
(ii) Priscilla left her friend
Patrick in summer 2001; she then spent several days living with
her mother and her father before moving in full time with another
friend, Rocky;
(iii) at the end of August 2001, she
moved back into her father's house; after a few days, the
atmosphere between them deteriorated; she then went to reside
with her aunt, Nathalie Boutin, for two weeks, and then with
Denise St-Pierre, a friend of her mother's;
(iv) in October 2001, Priscilla and
the appellant lived with the appellant's mother;
(v) from November 2001 on, the
appellant rented an apartment and Priscilla moved in with
her.
[11] As Lamarre J. stated in Loyer v.
Canada, [2001] T.C.J. No. 71 (Q.L.), at paragraph 14:
To satisfy the definition of "eligible individual",
a taxpayer must meet two cumulative conditions: namely residing
with the qualified dependant and primarily fulfilling the
responsibility for the care and upbringing of the qualified
dependant.
[12] The concept of "residing with the
qualified dependant" has been defined on many occasions by
the case law. The following is a brief review of the case
law.
[13] In Eliacin v. Canada, [1993]
T.C.J. No. 144 (Q.L.), [1993] 2 C.T.C. 2635 (T.C.C.), at
pages 2637 and 2638, Rip J. explained:
It may be said in light of this case law that the words
"to reside with" have a broader definition and do not
mean to live in a domestic relationship; they only mean to live
in the same house as someone else. It also appears that
Parliament should have used the word "cohabit" to
denote the act of living as husband and wife.
The Act uses only the words "reside with". The word
"cohabitation" does not appear in the Act, and is of no
relevance to the purposes of this appeal. Thus, the English case
law does not help us.
The word "résider" ([TRANSLATION]
"reside") is defined by Le Petit Robert 1 as
follows:
[TRANSLATION]
"Be established customarily in a place; to have one's
residence there... "
In English, The Shorter Oxford English Dictionary defines the
word "reside" as:
« ... 2. To dwell permanently or for a considerable time,
to have one's settled or usual abode, to live, in or at a
particular place.
The word "with", when used in the phrase "the
... spouse ... resided with the taxpayer" in
paragraph 63(3)(d), means two things: first, the spouse
must reside customarily in the same building as the appellant,
and, second, there must be a domestic relationship between the
two spouses and their children.
[14] In Burton v. Canada, [1999]
T.C.J. No. 833 (Q.L.) and Gibson v. Canada, [1999] T.C.J.
No. 834 (Q.L.), Sarchuk J. restated in part this passage from
Eliacin and added:[1]
I observe as well Black's Law Dictionary refers to
"residence" as "personal presence at some place of
abode with no present intention of definite and early removal and
with the purpose to remain for an undetermined period, not
infrequently, but not necessarily combined with design to stay
permanently".
[15] In S.R. v. Canada, [2003] T.C.J.
No. 489 (Q.L.), Bonner J. stated at paragraph 12:
The word "reside" with as used in the section 122.6
definition of the term "eligible individual" must be
construed in a manner which reflects the purpose of the
legislation. That legislation was intended to implement the child
tax benefit. That benefit was introduced in 1993 with a view to
providing a single nontaxable monthly payment to the custodial
parent of a child. That payment was intended to benefit the child
by providing funds to the parent who primarily fulfilled the
responsibility for the care and upbringing of the child. The
threshold test is whether the child resides with the parent.
Physical presence of the child as a visitor in the residence of a
parent does not satisfy the statutory requirement. The word
"resident" as used in s. 122.6 connotes a settled and
usual abode. The arrangement made between the Appellant and her
former spouse with regard to S.F. recognized a need to separate
S.F.'s settled and usual abode from that of T.
This passage was recently restated by O'Connor J. in
Bachand v. Canada, [2004] T.C.J. No. 26 (Q.L.), at
paragraph 5.
[16] Lastly, in Callwood v. Canada,
[2004] T.C.J. No. 95 (Q.L.), at paragraph 10, Woods J.
stated:
Although the circumstances that gave rise to this appeal are
unfortunate, I cannot agree with the interpretation of the word
"reside" that is suggested by Mr. Callwood. The word
"reside" generally means "to live in the same
house as:" Burton v. R., [2000] 1 C.T.C. 2727
(T.C.C.). In the context of the child tax benefit, this court in
other cases has held that residence is to be determined on a
monthly basis and that "reside" is to have its ordinary
meaning, not an expanded meaning from other statutory definitions
that are enacted for different purposes: Armstrong v. R.,
[1999] 4 C.T.C. 2719 (T.C.C.).
[17] Since the evidence shows that Priscilla
resided with friends from July 2000 until the end of September
2001, I am of the opinion that the appellant was not the eligible
individual during this period, as the condition set out at
paragraph (a) of the definition of "eligible
individual" in section 122.6 of the Act was not met.
However, since the evidence shows that Priscilla was residing
with her mother in October 2001 and that her mother was, during
this month, the parent who primarily fulfilled the responsibility
for the care and upbringing of Priscilla, I am of the opinion
that the appellant was the eligible individual during this period
of one month, as the conditions set out at paragraphs (a)
and (b) of the definition of "eligible
individual" in section 122.6 of the Act were met.
Signed at Ottawa, Canada, this 19th day of July, 2004.
Bédard J.
Certified true translation
Colette Beaulne
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