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Citation: 2003TCC649
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Date: 20030902
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Docket: 2003-602(IT)I
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BETWEEN:
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S. R.,
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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
Bonner, J.
[1] This is an appeal from a
determination of a deemed overpayment of child tax benefit under
s. 122.61 of the Income Tax Act (the
"Act") with respect to the years 1998, 1999 and
2000.
[2] The issue is whether the
Appellant, S. R., was, during the period, an "eligible
individual" in respect of her son S. F. That turns on
whether the Appellant "resided with" her son during the
period.[1] The term
eligible individual is defined in s. 122.6 of the Act.
That provision reads in part:
"eligible individual" in respect of a qualified
dependant at any time means a person who at that time
(a) resides with the qualified dependant,"
[3] The Minister of National Revenue
(the "Minister") acted on the basis of the following
findings or assumptions of fact:
"a) the
Appellant and the Spouse have three children, namely, J., born on
1981, S. F., born on 1983 and T., born on 1985, collectively
(the "Children");
b) in 1998,
1999 and 2000 (the "Period") the Appellant lived at
Langley, BC;
c) the Spouse
lived at Surrey during the period;
d) T. resided
with the Appellant during the Period;
e) On December
7, 1995 the Provincial Court of British Columbia ordered (the
"Order") by Consent:
(i) the
Appellant and the Spouse had joint custody of the Children;
(ii) the Appellant
and the Spouse had joint guardianship of the Children;
(iii) the Appellant and
the Spouse had liberal and generous access to the Children;
(iv) J. was to reside with
the Spouse; and
(v) S. F. and
T. were to reside with the Appellant;
f)
notwithstanding the Order, S. F. resided with the Spouse
during the Period; and"
[4] The Minister was wrong in relation
to the address set out in paragraph b) above for part of the
period but the error is not material to the outcome.
[5] The Appellant contended that
S. F. resided with her because he lived with her four days a
week and with his father only three days a week. She testified
that S. F. lived with her all his life until December 1996
and that he then commenced to go back and forth between her home
and that of her former spouse, S. F.'s father.
[6] The departure from the residence
arrangements called for by the Provincial Court Order was the
result of an agreement made by the Appellant with her former
spouse. That agreement was a response to S. F.'s abuse
of his sister T. S. F.'s parents were not prepared to
leave him alone in the house with his sister. Accordingly, it was
decided that S. F. would go to live with his father and that
his elder brother, would go to live with the Appellant and T.
[7] According to the Appellant S.F.
travelled between his father's home and her home following
the implementation of the December 1996 arrangements. He had a
room, clothing and games in both homes. She said that holidays
were shared.
[8] At the request of Revenue Canada,
the Appellant completed and signed a questionnaire on December
31, 2001. The questionnaire stated in part:
"Did you have any children under 19, who at any time from
January 1999 to present, did not live with you?
Yes X
No _____
If yes, state the name and date of birth of each child and the
reason for the absence from home in the space below:
FIRST CHILD
Name (first and
last)
S. F.
Date of birth
(year/month/day)
83
Date child left your home (year/month/day)
[unclear]
Reason for absence from your
home
Changed boys homes because both sons had emotional problems in
homes.
What was or will be the duration of the
absence?
Forever
If your child resided or is now residing with another
individual or agency who fulfils the responsibility for the care
and upbringing of the child, indicate that person's name or
agency by completing the area
below.
Joint Custody
Name
Spouse
Address
Surrey, B.C.
Social insurance number (if available)
______________
Spouse claims GST for S. F., I claim child tax since
1995."
[9] In evidence given at the hearing
of the appeal, the Appellant attempted to reconcile the apparent
conflict between what she said in the questionnaire and her
assertion that S. F. lived with her on the average of four
days per week and with his father only three days per week even
though T., from whom S. F. was to be separated lived with her
mother. The Appellant's explanation, in essence, was that it
was safe for S.F. to be present in the house with T. if either
she or her older son J. was present; that J. was in the house
Saturday and Sunday and that she was in the house on her two days
off work which fell during midweek. The Appellant explained that
S. F. "stayed with her" four days a week although
he did not "live with her" four days a week.
[10] Evidence was given by the
Appellant's former spouse. He confirmed that S. F. moved
in to live with him in January 1996. He said that S. F.
stayed with his mother on weekends and sometimes a couple of days
during the week as well. He said that S. F. would spend the
evening at his mother's if she was off during the week.
S. F. testified that he "visited" his mother when
she had time off and on weekends. He said that he spent three
days a week with his mother and four days a week with his
dad.
[11] I am inclined to prefer the evidence of
S. F. to that of his mother. The Appellant was not an
objective witness. She showed a tendency to exaggerate the number
of days which S. F. spent at her home. It is clear that
S. F. was permitted to visit the Appellant's home only
when either she or S.F.'s older brother was present. Although
S. F. kept clothes and other possessions and had a place to
sleep at his mother's residence the threat which he posed to
T. led to the formation of an arrangement which imposed on
S. F. the status of a person permitted to visit in his
mother's residence in limited circumstances only.
[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.
[13] For the foregoing reasons, the appeal
will be dismissed.
Signed at Toronto, Canada, this 2nd day of September 2003.
Bonner, J.
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