Loyer v. The Queen, docket 2000-1860-IT-I (Informal Procedure)

Date: 20010201

Docket: 2000-1860-IT-I

BETWEEN :

LUCIE LOYER,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Lamarre, J.T.C.C.

[1]      These are appeals from determinations by the Minister of National Revenue ("Minister") that the appellant was not entitled to the Canada Child Tax Benefit from September to November 1998 inclusive (1997 base taxation year) and July to November 1999 inclusive (1998 base taxation year) in respect of her son Patrick, who was born in August 1983.

[2]      In making his decision, the Minister considered that, although Patrick was a "qualified dependant", the appellant was not an "eligible individual" within the meaning of section 122.6 of the Income Tax Act ("Act"). The Minister therefore concluded that she was not entitled to the Canada Child Tax Benefit for the purposes of the calculations to be made in that regard under section 122.61 of the Act. According to the allegations in the Reply to the Notice of Appeal, the Minister assumed that, during the periods under appeal, Patrick did not reside with the appellant and she was not the parent who primarily fulfilled the responsibility for his care and upbringing.

[3]      I have heard the testimony of the appellant and her former spouse, Guy Corbeil, who is Patrick's father. They have been divorced since February 1994. At that time, Mr. Corbeil was granted legal custody of Patrick and the appellant was granted legal custody of her younger son.

[4]      In August 1998, Patrick had an accident and had to spend 52 days in hospital as a result. He got out of the hospital near the end of September 1998 and, according to the appellant's testimony, stayed with his father for just one night. She said that Patrick moved in with her and stayed there until December 1, 1998. The appellant claimed that she then sold her property because she had lost her job and that Patrick therefore went to live with his paternal grandmother from December 1, 1998, until July 1, 1999, when he resumed living with his mother. He left his mother's home on December 1, 1999, after his father made a furnished apartment available to him.

[5]      The appellant stated that she went to see her son every day while he was in the hospital and even brought him his meals. After Patrick got out of the hospital, she and Guy Corbeil were called to his school because their son was having serious problems there.

[6]      Patrick quit school when he was 16 years old and worked at his father's garage. The appellant signed the authorization for him to obtain his temporary driver's licence.

[7]      According to Guy Corbeil, Patrick lived with the appellant for only a few weeks in 1999 and otherwise stayed either with his father or with his paternal grandparents. Patrick's grandmother was the one who took him to his many doctor's appointments. Mr. Corbeil said that Patrick did not get along with his younger brother, who was living with his father by that time. Moreover, Patrick did not accept the strict schedule imposed by his father. That was why he did not always stay with him.

[8]      However, Mr. Corbeil said that Patrick spent 90 percent of his time at the garage with him. According to Mr. Corbeil, Patrick ate lunch and dinner with him. He paid all of Patrick's day-to-day expenses.

Analysis

[9]      Only an eligible individual within the meaning of section 122.6 of the Act is entitled to receive the Canada Child Tax Benefit. "Eligible individual" is defined as follows in section 122.6:

Subdivision a.1 - Canada Child Tax Benefit

SECTION 122.6: Definitions.

            In this subdivision.

"eligible individual" - "eligible individual" in respect of a qualified dependant at any time means a person who at the 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 . . .

            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 prescribed circumstances, and

            (h) prescribed factors shall be considered in determining what constitutes care and upbringing . . . .

[10]     Sections 6301 and 6302 of the Income Tax Regulations ("Regulations") provide as follows:

PART LXIII

Child Tax Benefits

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

. . .

(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.

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 hygenic 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.

[11]     It is not in dispute that Patrick was a qualified dependant. It also appears that both parents applied for the Canada Child Tax Benefit in respect of Patrick. This is not disputed by the appellant. It therefore follows that the presumption set out in paragraph (f) of the definition of "eligible individual" in section 122.6, namely that the female parent is presumed to be the one who primarily fulfils the responsibility for the child's care and upbringing where the child resides with her, does not apply here given what is provided for in paragraph 6301(1)(d) of the Regulations.

[12]     Moreover, in Canada v. Marshall, [1996] F.C.J. No. 431 (QL), the Federal Court of Appeal held that only one parent can qualify as an eligible individual within the meaning of the Act. According to that court, section 122.6 makes no provision for prorating between two parents who claim to be eligible parents during a given period.

[13]     Since the parents are not in agreement, I must therefore fall back on the factors set out in the Act to determine which parent was the eligible individual during the periods at issue. It should be noted that the eligible individual may change during a period because the assessment is made "at any time", which means the month for which the benefit is paid (see Bouchard v. Canada, [1997] T.C.J. No. 183 (QL)).

[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.

[15]     The first question that arises here is with whom Patrick resided during the periods at issue. In Eliacin v. Canada, [1993] T.C.J. No. 144 (QL), it was held that the words "to reside with" mean to live in the same house as someone else. The word "résider" [reside] is defined by Le Petit Robert 1 as follows:

[TRANSLATION]

1. To be established customarily in a place; to have one's residence there . . . .

[16]     In Burton v. Canada, [1999] T.C.J. No. 833 (QL), at paragraph 9, Judge Sarchuk of this Court also referred to the definition of "residence" found in Black's Law Dictionary:

                        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 undetermined period, not infrequently, but not necessarily combined with design to stay permanently".

[17]     Moreover, it seems to be established in law that a person can reside in more than one place at a time (see Thomson v. M.N.R., [1946] S.C.R. 209; Canada v. Marshall, [1996] T.C.J. No. 457 (QL)).

[18]     In the case at bar, what I gather from each person's testimony is that Patrick had places at both his parents' homes and went to stay with his mother, his father or his grandparents as he wished or as the mood struck him. Mr. Corbeil's testimony shows that Patrick did not like the house rules very much and did not get along very well with his brother, who lived with his father during the periods at issue. This does not necessarily mean that Patrick did not reside with his father. During the same periods, the appellant also had a home for Patrick where he could stay when he liked.

[19]     I therefore consider that each parent resided with Patrick within the meaning of the Act. Since I believe that Patrick resided with both the appellant and his father, the eligible individual will be determined on the basis of which parent primarily fulfilled the responsibility for Patrick's care and upbringing during the periods at issue, in light of the factors set out in section 6302 of the Regulations.

[20]     I am dealing here with a 16-year-old who quit school. Both of his parents said that they visited him regularly while he was in the hospital. His grandmother was the one who subsequently took care of his visits to the doctor's. Both parents acknowledged that Patrick spent his days at his father's garage. However, his father claimed that Patrick regularly ate dinner either with him or at his grandmother's house, while the appellant claimed that Patrick was often at her home in the evening. Patrick's father was the one who paid his day-to-day expenses and his medical expenses resulting from the accident. The appellant claimed that she or Patrick's grandmother did his laundry.

[21]     In a case such as this one, it is very difficult to decide who primarily fulfilled the responsibility for the care and upbringing of a teenager who ultimately did as he pleased. However, after considering everything, I am of the opinion that the Minister's determination in favour of the father was nonetheless reasonable. The appellant said that Patrick's father had legal custody of him. According to Mr. Corbeil's uncontradicted testimony on this point, he was the one who spent every day with Patrick at the garage. I therefore consider that Patrick's father was the one who mainly provided for his daily needs. In light of the factors set out in section 6302 of the Regulations, it is my view that the Minister's determinations should be upheld.

[22]     The appeals are therefore dismissed.

Signed at Ottawa, Canada, this 1st day of February 2001.

"Lucie Lamarre"

J.T.C.C.

Translation certified true

on this 29th day of May 2002.

Stephen Balogh, Revisor

[OFFICIAL ENGLISH TRANSLATION]

2000-1860(IT)I

BETWEEN:

LUCIE LOYER,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeals heard on November 23, 2000, at Ottawa, Ontario, by

the Honourable Judge Lucie Lamarre

Appearances

For the Appellant:                      The Appellant herself

Counsel for the Respondent:      Charles Camirand

                                                Ion Stancu (Student-at-law)

JUDGMENT

          The appeals from each of the determinations by which the Minister of National Revenue denied the appellant the Canada Child Tax Benefit in respect of her son Patrick for the periods of September to November 1998 inclusive (1997 base taxation year) and July to November 1999 inclusive (1998 base taxation year) under sections 122.6 and 122.61 of the Income Tax Act are dismissed.

Signed at Ottawa, Canada, this 1st day of February 2001.

"Lucie Lamarre"

J.T.C.C.

Translation certified true

on this 29th day of May 2002.

Stephen Balogh, Revisor

[OFFICIAL ENGLISH TRANSLATION]