Date: 19991201
Docket: 98-1219-IT-I
BETWEEN:
VALERIE D. BURTON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Sarchuk J.T.C.C.
[1] By way of Child Tax Benefit Notice dated May 20, 1997, the
Minister of National Revenue (the Minister) determined that the
Appellant was in receipt of a child tax benefit overpayment in
the amount of $4,323.89 for the period from October 1996 to April
1997 being in respect of the base taxation year 1995. The
Appellant, Valerie Burton, has appealed from this determination
on the basis that she was an eligible individual in respect of
the qualified dependants during this period and, more
specifically, that she was a person who at the relevant time
resided with and was the parent of the qualified dependants who
primarily fulfilled the responsibility for their care and
upbringing.
Facts
[2] The Appellant and her former spouse, Blair Burton, are the
natural parents of seven children, Amanda, Candy, Jason, Ellery,
David, Trevor and Kevin, all of whom were, during the period in
question, qualified dependants. Until the beginning of October
1996, the family resided together in Kelwood, Manitoba. From 1980
when they were married to August 1995 when the youngest child
began to attend school, the Appellant was a homemaker. In 1995,
she went back to work on a fulltime basis. On or about October 9,
1996, the Appellant and her former spouse separated and she left
the Kelwood residence. She initially moved to St. Rose, where she
was employed, and stayed with a friend for two weeks before
moving into rented quarters for approximately one month. The
Appellant then moved in with Cory Garrard with whom she has
"cohabited since that time".
[3] The Appellant testified that during this period she
returned to the family home in Kelwood on almost a daily basis
after the end of her work day and did the cooking, cleaning,
laundry, the chauffeuring of the boys to hockey games and looked
after them when they were ill. Her former spouse agreed that she
performed some of these tasks but not to the extent nor on the
daily basis as asserted by her. It was evident from their
testimony that there was a substantial degree of animosity
between them and each went to some lengths in attempting to
embellish their contribution to the care and attention provided
to the children. I think it is only proper to mention that the
hostility between the two parties was exacerbated by the fact
that the individual with whom the Appellant is cohabiting
represented her in this appeal.
[4] Towards the end of the benefit period in issue, the
Appellant and her former spouse met with a mediator principally
for the purpose of limiting the amount of time that the Appellant
would spend at the family home. She observed that "things
were going on exactly as before except I did not sleep
there" and "we came to the point we had to draw a
line". In Blair Burton's words the situation had reached
the point where she was there too often and he "didn't
want her around". They ultimately agreed that her attendance
at the Kelwood residence would be limited to:
" ... two evenings per week, overseeing their
after-school routine until 8 p.m. on one of the evenings (with an
overnight at her home and driving them to school the next
morning) and until 10 p.m. on the second evening. In addition,
the children will spend every second weekend with their mother.
The remaining time the children will be in their father's
care."
Issue
[5] The sole issue in this appeal is whether Valerie Burton
was an eligible individual in respect of the qualified
dependants. The relevant portion of the definition of eligible
individual in section 122.6 reads:
122.6. In this subdivision,
“eligible individual” 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,
...
[6] There are two questions of fact to be determined in this
appeal. First did the Appellant, during the relevant period,
reside with the qualified dependants and second, was she the
parent who primarily fulfilled the responsibility for their care
and upbringing.
Conclusion
[7] 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 her children. 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.
[8] With respect to the first question, there are virtually no
cases in which the circumstances are even remotely similar that
deal substantively 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
[9] 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".
[10] On the evidence before me, it is not possible to conclude
that the Appellant "resided in the same house or lived in
the same house with" the qualified dependants. When the
Appellant testified that she commenced cohabitation with Garrard,
she surely must have meant that they not only lived together
"as to people living in one house" but also "as
husband and wife". I can only conclude that the Appellant
during the relevant period resided with Cory Garrard and
therefore, cannot be said to have "resided with the
qualified dependants" as that term is used in section 122.6
of the Act.
[11] 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 the qualified dependants. The appeal is
dismissed.
Signed at Ottawa, Canada, this 1st day of December, 1999.
"A.A. Sarchuk"
J.T.C.C.
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