|
Citation: 2003TCC745
|
|
Date: 20031202
|
|
Docket: 2003-1897(IT)I
|
|
BETWEEN:
|
|
MARIO POINT,
|
|
Appellant,
|
|
and
|
|
|
|
HER MAJESTY THE QUEEN,
|
|
Respondent.
|
|
|
REASONS FOR JUDGMENT
Bédard J.
[1] These
are appeals under the Informal Procedure with respect to the Canada Child Tax
Benefit (CCTB) for the 1999, 2000 and 2001 base years.
[2] On
January 20, 2003, the Minister of National Revenue (the Minister) issued to the
Appellant Notices of Redetermination in respect of the CCTB for the 1999, 2000
and 2001 base years.
[3] The
Notices claimed from the Appellant overpayments of the CCTB in the amounts of
$173.42, $2,372 and $1,222.04 for the 1999, 2000 and 2001 base years,
respectively.
[4] In
making and confirming the Notices of Redetermination with respect to the CCTB
for the base years at issue, the Minister relied on the following facts set out
in paragraph 4 of the Reply to the Notice of Appeal:
[TRANSLATION]
a) The Appellant
and Johanne Auger (former spouse) have been separated since 1996;
b) Their union
produced two children: Marie-Ève on April 12, 1986, and Alexandra on May 5,
1992;
c) During the
years at issue, the former spouse continued to claim the CCTB for her two
children, Marie-Ève and Alexandra;
d) On April 15,
2002, the Appellant filed the form RC-66, “Canada Child Benefits Application”,
for his daughter Marie-Ève, indicating on the form that on May 13, 2001, he
became the eligible individual to receive the CCTB;
e) On May 31,
2002, a request for clarification was sent to the Appellant to verify his
eligibility to receive the CCTB;
f) In
responding to the request, the Appellant said that his daughter, Marie-Ève, had
been living with him permanently since May 13, 2001;
g) The
Appellant’s former spouse claimed their daughter, Marie-Ève, still lived with
her on a regular basis and provided the relevant document attesting to the fact
that during the years at issue, she was the eligible individual who primarily
fulfilled the responsibility for the care and upbringing of her daughter;
h) The Appellant
did not submit a single document showing that during the years at issue, he was
the eligible individual who primarily fulfilled the responsibility for the care
and upbringing of his daughter, Marie-Ève;
i) For the 1999
base year, from July 2000 to June 2001, the Minister made an overpayment of the
CCTB to the Appellant with respect to June 2001, in the amount of $173.42, when
he was not the eligible individual;
j) For the 2000
base year, from July 2001 until June 2002, the Minister made an overpayment of
the CCTB to the Appellant in the amount of $2,372 when throughout that period,
he was not the eligible individual;
k) For the 2001
base year, from July 2002 to June 2003, the Minister made an overpayment of the
CCTB to the Appellant in the amount of $1,222.04, with respect to July to
December 2002, when he was not the eligible individual.
[5] The
only issue is determining if the Minister was mistaken in deciding the
Appellant was not the eligible individual for the years at issue.
[6] The
definition of “eligible individual” in section 122.6 of the Income Tax Act
(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 or, where the person
is the cohabiting spouse or common-law partner 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 149(1)(b), and
(e) is, or whose cohabiting spouse or
common-law partner is, a Canadian citizen or a person who
(i) is a permanent resident within the meaning
of subsection 2(1) of the Immigration and Refugee Protection Act ,
(ii) is a temporary resident within the meaning
of the Immigration and Refugee Protection Act , who was resident in
Canada throughout the 18 month period preceding that time, or
(iii)
is a protected person
within the meaning of the Immigration and Refugee Protection Act ,
(iv)
was determined before
that time to be a member of a class defined in the Humanitarian Designated
Classes Regulations made under the Immigration Act,
and for the purposes 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;
[7] For
the purposes of paragraphs (g) and (h) of the definition of
“eligible individual” in section 122.6 of the Act, sections 6301 and 6302 of
Part LXIII of the Income Tax Regulations (the Regulations) provide the
following:
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 fulfils 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
are concerned only with the conditions established in paragraph (b) of
the definition of “eligible individual” in section 122.6 of the Act, namely,
that the parent of the qualified dependant must be the person who “primarily
fulfils the responsibility for the care and upbringing
of the qualified dependant”.
[9] The
Appellant, Johanne Auger and their daughter, Marie-Ève, all testified.
[10] It was admitted that the Appellant and Ms. Auger were not divorced;
they were separated and there was no order, judgment or written agreement with
respect to Marie-Ève’s custody.
[11] Even though the Appellant’s testimony and Ms. Auger’s testimony were
sometimes contradictory with respect to Marie-Ève’s principal residence, the
daughter lived mainly with her father. Marie-Ève indicated in her testimony
that during the school year, she lived mainly with her father and spent every
other weekend with her mother. In the summer months, she testified that she
divided her time equally between her parents.
[12] Therefore, we can conclude that Marie-Ève did not live exclusively
with her mother, which means that the presumption in paragraph (f) of
the definition of “eligible individual” in section 122.6 of the Act does not
apply.
[13] When this is the case, the issue of determining which parent primarily
fulfilled the responsibility for the care and upbringing of the “qualified
dependant” during the years at issue must be determined pursuant to the factors
listed in section 6302 of the Regulations.
[14] Ms. Auger testified that she paid for all her daughter’s clothing,
medical expenses, medication and dental fees. She also said she took her
daughter to the doctor and to the hospital when she required urgent care. In
support of her testimony, she submitted in a bundle, as Exhibit I-4, a series
of receipts and letters or confirmation.
[15] She also submitted, as Exhibit I-3, Marie-Ève’s report cards for the
2000-2001 and 2002-2003 school years, which indicate that Ms. Auger is the
recipient of the report cards. She also submitted, as Exhibit I-2, a letter
from Marie-Ève’s school identifying Ms. Auger as the Marie-Ève’s sole guardian
for the 2001-2002 school year.
[16] However, the Appellant did not submit any documentary evidence showing
that during the years at issue, he was the “eligible individual” who primarily
fulfilled the responsibility for the care and upbringing of his daughter,
Marie-Ève. Moreover, he testified that he fed his daughter when she lived with
him and gave her pocket money. With respect to Marie-Ève’s report cards, he
testified also being the recipient as of September 2001 without actually
providing any documentary evidence in this regard.
[17] In reviewing the factors listed in section 6302 of the Regulations, I
only received vague or noncommittal answers from the Appellant most of the
time.
[18] In light of the factors that must be examined, which are based on
care, attention and participation, as well as the evidence submitted, which is
insufficient in many respects, I must conclude that the Appellant did not
sufficiently prove, on a balance of probabilities, that he met the conditions
established in paragraph (b) of the definition of “eligible individual”
in section 122.6 of the Act, namely that he was, for the years at issue, the
parent who primarily fulfilled the responsibility for the care and upbringing
of his daughter, Marie-Ève.
[19] As a result, the appeals are dismissed.
Signed at Ottawa, Canada, this 2nd day of December
2003.
Bédard
J.
Translation certified
true
on this 30th day of
March 2009.
Bella Lewkowicz, Translator
Email this Content