Docket: 2001-3668(IT)I

BETWEEN:

LUCETTE FAUCHER,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent. [OFFICIAL ENGLISH TRANSLATION]

____________________________________________________________________

Appeal heard on March 3, 2003, and judgment delivered orally from the bench on March 4, 2003, at Québec, Quebec

Before: The Honourable Judge François Angers
Appearances
Counsel for the Appellant:	Jean H. Lemire
Counsel for the Respondent:	Marie-Aimée Cantin

____________________________________________________________________

JUDGMENT

          The appeal from the determination of the child tax benefit with respect to the 1999 base taxation year, for the period from February to June 2001, is dismissed in accordance with the attached Reasons for Judgment.

Signed at Ottawa, Canada, this 5th day of May 2003.

"François Angers"

J.T.C.C.

Translation certified true

on this 6^th day of July 2004.

Sophie Debbané, Revisor

Citation: 2003TCC281

Date: 20030505

Docket: 2001-3668(IT)I

BETWEEN:

LUCETTE FAUCHER,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

[OFFICIAL ENGLISH TRANSLATION]

REASONS FOR JUDGMENT

Angers, J.T.C.C.

[1]      This is an appeal under the informal procedure concerning the child tax benefit. Was the appellant the person who primarily fulfilled the responsibility for the care and upbringing of her daughter Karen, according to the definition of "eligible individual" that is found in section 122.6 of the Income Tax Act (the "Act") for the period from February to June 2001?

[2]      A notice of determination dated February 20, 2001, of the Minister of National Revenue (the "Minister") informed the appellant of the Minister's refusal to grant the tax benefit for the period at issue. The facts on which the Minister relied in making the redetermination with respect to the tax benefit were all admitted by the appellant, with the exception of the fact that the appellant had assumed custody of her daughter from July to October 2000.

[3]      The appellant is the mother of Karen Faucher Enright, born on December 11, 1986. Her father is Patrick Enright. The parents have been separated since 1994. As of October 2000, the parents shared custody of their daughter. They completed the form "Application for the Canada Child Tax Benefit". The appellant completed hers in September 2000 and the father completed his in October 2000. From July 2000 to January 2001, the Minister paid the appellant the child tax benefit. The father received it beginning in February 2001, that is, at the start of the period at issue. No additional information was provided to the objections officer by the appellant when the case was reviewed. The forms were not filed in evidence.

[4]      Both parents testified. The appellant took care of their daughter and had custody of her until 1999. Subsequently, the father had custody of Karen for approximately one year, that is, until March 2000. On that date, Karen returned to live with her mother until October 3, 2000, the date on which an interim order was issued by the Superior Court of Quebec granting joint custody of Karen on a trial basis, beginning on October 8. In the preamble to the order, it states that Karen's dearest wish is to live with each parent on alternate weeks.

[5]      On December 18, 2000, a consent order was issued according to which the parties agreed to shared custody so that Karen would live with each parent on alternate weeks. The order provided that, in 1999 and for three months in 2000, Karen was in her father's custody, while for nine months in 2000 she was in her mother's custody. Clause 4 of the agreement states that, notwithstanding the shared custody, the appellant primarily fulfils the responsibility for the care and upbringing of the child, in accordance with the provisions of section 122.6 of the Act. Concerning this last clause, the father testified that he had given his agreement to it but said that the facts would be considered and that some other person would one day have to make that decision. He provided no other explanation of what he meant by this statement.

[6]      Each parent explained how he or she had played a role in the daughter's development, well-being and upbringing and each attempted to further his or her cause while trying, naturally, to slightly besmirch the other's contribution. In the course of this exercise, each parent made criticisms about the other that did not always prove to be true. I shall limit myself to an example from the appellant's testimony. When the father was not present, she said that he probably was not aware that his daughter was using contraception, whereas he had clearly testified that he knew about this. Nonetheless, there is no doubt that they are both credible witnesses, but their perception and interpretation of the events of the other's life in relation to their daughter differs depending on which one is testifying. On the whole, each appears to make a significant contribution so that the issue in the case at bar is far more a question of the degree of responsibility that an eligible individual must fulfil for the care and upbringing of the dependant.

[7]      The definition of "eligible individual" reads as follows:

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 (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 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 circumstances set out in regulations made by the Governor in Council on the recommendation of the Minister of Human Resources Development, and

(h)         factors to be considered in determining what constitutes care and upbringing may be set out in regulations made by the Governor in Council on the recommendation of the Minister of Human Resources Development.

[8]      In the case at bar, and as I have noted, each parent seems to meet the factors referred to above. They both appear to provide their daughter with the care and upbringing that a parent of a qualified dependant is required to provide, although the contribution may vary somewhat between the parents, depending on the way each sees things. On the basis of the evidence as a whole, nothing convincing emerged that would enable me to vary the Minister's determination. Differences in the number of days that Karen spent with either parent, the number of visits to the doctor with one parent or the other or the number of times that each drove the child to her activities do not suffice, in my opinion, to tilt the balance in favour of the appellant. I believe that the father's contribution, both academically and personally, was sufficiently meaningful, according to the criteria, to enable me to find that the Minister's determination, which favoured the father, was reasonably well founded.

[9]      The appeal is therefore dismissed.

Signed at Ottawa, Canada, this 5th day of May 2003.

"François Angers"

J.T.C.C.

Translation certified true

on this 6^th day of July 2004.

Sophie Debbané, Revisor