[OFFICIAL ENGLISH TRANSLATION]
Date: 20010924
Docket: 2001-616(IT)I
BETWEEN:
YVES ALLARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Lamarre Proulx, J.T.C.C.
[1] This is an appeal under the
informal procedure from a child tax benefit determination made on
December 13, 1999, for the period of July 1999 to
June 2000.
[2] The issue is who, during that
period, was the eligible individual or the parent who primarily
fulfilled the responsibility for the care and upbringing of the
children within the meaning of section 122.6 of the Income Tax
Act ("the Act") and sections 6300 and 6302
of the Income Tax Regulations ("the
Regulations").
[3] The Minister of National Revenue
("the Minister") based the determination on the facts
set out as follows in paragraph 5 of the Reply to the Notice of
Appeal ("the Reply"):
[TRANSLATION]
(a) the appellant
and Guylaine Asselin (hereinafter the "former spouse")
got married on September 7, 1996.
(b) they had three
children together: Naomi, who was born on May 30, 1997,
Jordan, who was born on June 10, 1995, and Audréane, who
was born on April 21, 1992;
(c) a fourth minor
child, Ludovik, who was born on July 7, 1989, is from a previous
relationship, but the appellant has always acted as that
child's father;
(d) on August 27,
1998, the appellant and the former spouse stopped living
together;
(e) on December 16,
1998, both parties signed a consent to corollary relief in the
Superior Court;
(f) in a
divorce judgment rendered by the Honourable Mr. Justice Jean Guy
Dubois of the Superior Court of Quebec on
January 27, 1999, that Court ratified the parties'
consent to corollary relief of December 16, 1998, and
ordered the parties to comply with that agreement;
(g) according to the
consent to corollary relief of December 16, 1998, it was agreed,
inter alia, that:
(i) the two
parties had and were to have joint custody of their four minor
children, with each parent having them in alternate weeks
starting from the time the parties separated, that is, the
beginning of August 1998;
(ii) during the
weeks when the appellant had custody, the former spouse was to
look after the minor children Naomi and Jordan in the daytime
until January 1999, when she was to be going back to school;
(iii) starting in January
1999, each party was to look after the children and be
responsible for child care costs during the weeks when he or she
had custody;
(iv) the appellant was to
pay $304.16 a month in support for the minor children; the said
amount was to be indexed on January 1 of each year in accordance
with article 590 of the C.C.Q.;
(v) family
allowances and tax deductions were to be shared equally by the
parties;
(vi) the appellant
undertook to pay for clothing for Audréane and Jordan; the
former spouse undertook to pay for clothing for Naomi and
Ludovik;
(vii) under the divorce
judgment, the former spouse was to give the appellant half of the
family allowances and tax deductions, and the two parties signed
an agreement stating that the former spouse was to write cheques
for the difference between the amounts of the family allowances,
including baby bonuses from the provincial government, and the
support amounts for the months of February to June 1999;
(viii) around March 10, 1999,
the appellant applied to the Minister to have the Canada Child
Tax Benefit paid to him for six months and to the former spouse
for the following six months;
(ix) based on a review of
the information obtained from the questionnaires filled out by
the appellant and the former spouse, the Minister determined that
the appellant was not eligible for the CTB for the four minor
children because he was not the parent primarily responsible for
their care and upbringing. A notice of determination was sent to
the appellant on December 13, 1999;
(x) on November 21,
1999 [sic], the appellant filed a notice of objection to
the notice of determination of December 13, 1999;
(xi) on March 31, 2000,
the Minister confirmed the notice of determination on the ground
that the appellant had not shown that he was the "eligible
individual" within the meaning of section 122.6 of the
Act for the period of July 1999 to June 2000;
(xii) the former spouse
therefore continued to receive the CTB for the other children for
the entire period encompassed by the 1998 base taxation year.
[4] Section 6302 of the
Regulations reads as follows:
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.
[5] Both parents testified. Based on
the evidence that was heard, it seems to me that the period at
issue must be divided into two parts. The first part ended in
December 1999. In January 2000, Ms. Asselin started a one-year
Emploi-Québec training program in computer
technology. The courses were given from 8:00 a.m. to
4:30 p.m.
[6] During the first period, Ms.
Asselin did not work outside the home. She even said that she was
the one who looked after the two youngest children in the daytime
during the weeks when her former husband had custody.
[7] On August 2, 1999, Ms. Asselin
filled out the child tax benefit questionnaire filed as Exhibit
I-5. The period to which the questionnaire applies started
on August 27, 1998, and the period at issue started in July 1999.
The appellant's questionnaire is dated July 16, 1999. The
questionnaires therefore relate to the first part of the period
at issue.
[8] In view of the answers given on
the questionnaires and in light of the parents'
testimony, the Minister's decision that the children's
mother was the eligible individual seems to be the only
reasonable conclusion for that first part of the period at
issue.
[9] However, with regard to the second
part, when Ms. Asselin was taking a full-time training program,
it is my view that the appellant was the one who looked after the
children the most. There is no doubt that he was more interested
in the children's extracurricular activities, that he took
those activities more seriously and that he was more available
for the children generally. This does not mean that the mother
did not look after her children properly, but, since it is
necessary to decide who primarily took care of them, it is my
opinion that it was their father for that period.
[10] The appeal is allowed and the matter is
referred back to the Minister for reconsideration and
reassessment on the basis that the appellant was the eligible
individual or the parent who primarily fulfilled the
responsibility for the care and upbringing of the children within
the meaning of section 122.6 of the Act during the part of
the period at issue that started in January 2000
Signed at Ottawa, Canada, this 24th day of September 2001.
J.T.C.C..
Email this Content