Date: 19991201
Docket: 98-168-IT-I
BETWEEN:
JANINE GIBSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Sarchuk J.T.C.C.
[1] By Child Tax Benefit Notices dated September 19, 1997, the
Minister of National Revenue (the Minister) informed the
Appellant that with respect to the 1995 and 1996 base taxation
years it had been redetermined that she was entitled to receive a
child tax credit in the amount of $239.60 and nil,
respectively.
[2] In redetermining the Appellant's entitlement to the
child tax benefit for the 1995 and 1996 base taxation years, the
Minister made the following assumptions of fact:
(a) in conformity with section 122.6 of the Act, the
1995 "base taxation year" means the months of July 1996
to June 1997, inclusively;
(b) in conformity with section 122.6 of the Act, the
1996 "base taxation year means the months of July 1997 to
June 1998, inclusively;
(c) the Appellant was a single individual, who, at all
relevant times until April 4,1998, had one (1)
"qualified dependant" born on April 4, 1980, namely
Andrew Grant, (the "Child");
(d) by virtue of a Divorce Judgment dated October 15, 1987,
The Court of Queen's Bench of Alberta, Judicial District of
Calgary, adjudged that the Appellant's former spouse, namely
Gordon Grant, shall have custody of the Child;
(e) since August 1995, the Appellant ceased to reside with the
Child;
(f) at all relevant times, the Appellant was not an
"eligible individual" of the Child; (sic)
and
(g) the Appellant was entitled to receive Child Tax Benefits
in the amounts of $239.60 and $0.00, with respect to the 1995
"base taxation year" and 1996 "base taxation
year", respectively.
[3] The Appellant was the sole witness. She testified that in
1987, her estranged spouse, who was then living in Brooks,
Alberta, was granted full custody of their seven year old son,
Andrew. In or about 1995, when Andrew was 14, the relationship
between him and his father became strained and he sought to spend
more time with the Appellant. Andrew had spent Christmas,
Thanksgiving and during the school summer break with the
Appellant and although he enjoyed the visits, he did not have
many friends there because since the age of six, he had been
attending school, first in Brooks, Alberta, and then in North
Vancouver, B.C. However, the difficulties between father and son
persisted and ultimately when Andrew was 15, the parents agreed
that he would live with the Appellant. At that time, it was also
agreed that the child tax credit would be transferred from his
father to the Appellant.
[4] The Appellant testified that she is an organic crop
consultant and lives in an alternative community known as the
Northern Sun Farm Co-op near Steinbach. They are environmentally
based, obtain their power from solar panels and do without many
of the amenities such as running water, etc. The Appellant
observed that Steinbach is somewhat of a conservative area and
while in general, the community has been supportive of the Co-op,
Andrew's schooling was a problem. More specifically, while
Andrew enjoyed living on the farm "per se" he
did not feel comfortable attending the local schools. He
transferred from the Steinbach school to a school at Grunthal
with no appreciable change in his attitude and as a result, he
was ultimately registered for home schooling. The problem
persisted and it became apparent that Andrew wanted to return to
North Vancouver and attend the Sea Cove School where he had a
large number of friends. Although his father resided in the
Vancouver area, Andrew refused to return to his residence as a
result of which an arrangement was made to place him in "a
board and room situation in a rooming house" so that he
could attend the school of his choice. During this period, the
Appellant and her former spouse assisted Andrew with his rent and
other expenses. She further testified that Andrew's father
suggested that the Appellant should declare Andrew as a dependant
and receive the tax credit for Andrew's benefit. It is with
respect to this period of time that the issue in question
arose.
[5] It is the Appellant's position that she was the person
who was primarily responsible for the care and upbringing of
Andrew during the relevant "base taxation years". The
Appellant also maintains that Andrew did not reside with his
father during that period of time.
Conclusion
[6] Sections 122.6 to 122.64 of the Income Tax Act (the
Act) were enacted in 1992 in order to consolidate the
existing benefits available with respect to dependant children.
This benefit is payable in respect of "qualified
dependants". A qualified dependant must be under 18 at the
relevant time which was indeed the case with Andrew. The benefit
is payable to an "eligible individual". In order to
qualify as an eligible individual, the individual at that time
must (a) reside with the qualified dependant; (b) the parent who
primarily fulfils the responsibility for the child's care and
upbringing. In this appeal, it is necessary for the Appellant to
demonstrate that both of the above requirements have been
met.
[7] With respect to the question whether the Appellant during
the relevant period resided with the qualified dependant I must
observe that there few cases that substantively deal with the
definition of the phrase "resides with the qualified
dependant". However, the phrase "resides with" was
considered by Rip J. in Eliacin v. Canada.[1] The issue in that case was
whether the Appellant was entitled to deduct child care expenses
under section 63, an entitlement which was only available to her
if the child "resided with" her. Since the question for
determination in Eliacin is identical to that before me
the following comments of Rip J. are relevant to this appeal:
Counsel for the respondent relied on Thomson v. M.N.R.,
[1946] S.C.R. 209, [1946] C.T.C. 51, 2 D.T.C. 812, a judgment of
the Supreme Court, which affirmed the principle that a taxpayer
may have more than one residence. In my view, this judgment in no
way applies to the facts of the instant appeal.
Paragraph 63(3)(d) uses the words “... the ...
spouse ... resided with the taxpayer ...”. In
Thomson, it was discussed whether the taxpayer had
resided in Canada.
Le Petit Robert 1 defines the word “avec”
(“with”) as follows:
1. (Indicates relation: simultaneous physical presence; moral
agreement between a person and someone or something). In the
company of (someone). See prefix “co-”. “To go
walking with someone.” “My greatest pleasure is to go
out with you.” “He always has his dog with
him.” To be with someone: “in his or her
company”. “They are always with each other.”
See “auprès (de)”. “She was then with a
very rich man.” Flaubert: “she lived with
him....”
The same dictionary states that the word
“à” (“in”) means “position
in a place”.
In English, there is also a difference between the words
“in” and “with”. The Shorter Oxford
English Dictionary on Historical Principles defines the word
“in” to mean “... the preposition expressing
the relation of inclusion, situation, position, existence, or
action within limits of space ....” The word also means
“... within the limits or bounds of, within (any place or
thing) ....”
The Shorter Oxford English Dictionarydefines the word
“with” as follows:
II. Denoting personal relation, agreement, association, union,
addition. ... 13. Following words expression accompaniment or
addition, as associate, connect, join, marry, share, unite vbs..
19. Expressing association, conjunction, or connection in
thought, action or condition ... 25. Indicating an accompanying
or attendant circumstance, or a result following from the action
expressed by the verb.
The English courts have had to define the words
“reside with” which appear at subsection 1(4) of the
Summary Jurisdiction (Separation and Maintenance) Act,
1925, (15 & 16 Geo. 5, c. 51). That subsection provides that
a maintenance order is not executory if the woman “resides
with” her husband. The words “reside with” were
defined as meaning “residing in the same house as”
(see Evans v. Evans, [1948] 1 K.B. 175, at page 182). or
“living in the same house with” (see Hewitt v.
Hewitt, [1952] 2 Q.B. 627, at page 631). ...
It may be said in light of this case law that the words
“to reside with” have a broader definition and do not
mean to live in a domestic relationship; they only mean to live
in the same house as someone else. ...
Emphasis added
[8] 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".
[9] It is not possible in the circumstances of this case to
conclude that the qualified dependant, Andrew, "resided
with" the Appellant. Accordingly, the Minister's
determination that the Appellant was not entitled to the child
tax benefit for the 1995 and 1996 base taxation years was
correct. In view of my conclusion with respect to this
requirement, I need not consider whether the Appellant was the
individual who was primarily responsible for the care and
upbringing of Andrew in that period of time. The appeals are
dismissed.
Signed at Ottawa, Canada, this 1st day of December, 1999.
"A.A. Sarchuk"
J.T.C.C.
Email this Content