Dion v. The Queen, docket 98-2682-IT-I (Informal Procedure)

Date: 19991019

Docket: 98-2682-IT-I

BETWEEN:

NICOLE DION,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Lamarre Proulx, J.T.C.C.

[1] This is an appeal respecting the calculation of tax benefits for the 1995 and 1996 base years.

[2] The point for determination is who, the appellant or Alain Rajotte, primarily fulfilled the responsibility for the care and upbringing of their child, Gaël, during the periods from July 1996 to June 1997 and from July 1997 to June 1998, within the meaning of the definition of "eligible individual" in section 122.6 of the Income Tax Act (the "Act").

[3] The facts on which the Minister of National Revenue (the "Minister") relied in making his decision are set out in paragraph 7 of the Reply to the Notice of Appeal (the "Reply") as follows:

[TRANSLATION]

(a) during 1996 and 1997 and until June 1998, the appellant and her former spouse, Alain Rajotte, had elected domicile at different addresses;

(b) the appellant and her former spouse are the parents of a son named Gaël born in April 1995;

(c) in response to the applications for child custody by each of the respective parents, the Honourable Judge Jean Archambault granted shared custody of the minor child, Gaël, on August 1, 1996;

(d) the child was to live at the father's home for one week and at the appellant's home the following week;

(e) in September 1996, the father, Alain Rajotte, applied for the child tax benefit for his son Gaël for the base year 1995;

(f) as a result of a joint custody review conducted in December 1996, the father was deemed to be the person primarily fulfilling the responsibility for the care and upbringing of the child;

(g) on January 20, 1997, the Minister issued a notice of child tax benefit determining in respect of the 1995 base year that the father had been the person primarily responsible for the care and upbringing of the child Gaël since September 1996;

(h) in November 1997, the appellant, Nicole Dion, applied for the child tax benefit for her son Gaël for the 1996 base year;

(i) based on a second joint custody review conducted in January 1998, the Minister once again deemed the father to be the person primarily responsible for the care and upbringing of the child;

(j) on February 10, 1998, the Minister informed the appellant that he did not consider her to be the person primarily responsible for the care and upbringing of the child Gaël in respect of the 1996 base year;

(k) on April 8, 1998, a judgment of the Superior Court granted legal custody of the child to the father, Alain Rajotte, as of August 15, 1998.

[4] The grounds stated in the Notice of Appeal herein are as follows:

[TRANSLATION]

. . .

Ms. Dion should have continued to receive the benefits (CTB) since the child Gaël was subject to joint custody (1 week/1 week) from August 1, 1996 until August 15, 1998.

Ms. Dion was and is still receiving income security benefits. Mr. Rajotte has a steady job and annual income of approximately $25,000. He has never paid support for the child, but Ms. Dion retained the family allowances.

. . .

[5] The appellant and Alain Rajotte testified, the latter at the request of counsel for the respondent.

[6] Exhibit I-1 is the judgment dated August 1, 1996 referred to in subparagraph 7(c) of the Reply. In particular, the judgement states:

[TRANSLATION]

. . .

Awards the parties joint custody of the said child on the basis of one week at the father's home and one week at the mother's home and so on; starting on August 2, the child will be with the mother until Friday, August 9 at 4:30 p.m.;

Directs the father, in lieu of child support, to pay for all the child Gaël's clothing, which shall follow the child.

. . .

[7] Exhibit I-2 is the report on a psychosocial assessment conducted upon the judge's request made at the end of a hearing on custody of the child Gaël. The report is dated August 4, 1997 and concludes that the father should have primary custody of the child. Exhibit I-3 is the order dated April 10, 1997 requiring that assessment. The report (Exhibit I-2) concludes as follows at page 4:

[TRANSLATION]

Since

- the father's attitude toward the child is more altruistic and thus more conducive to the child's better growth and development;

We recommend:

- that the father have primary custody of the child.

. . .

[8] On April 8, 1998, judgment (Exhibit I-4) was rendered on the application to amend child custody filed by the child's father. The judgment concluded that the father should have primary custody of the child.

[9] Exhibit I-5 is the application for child tax benefit filed by Alain Rajotte and dated October 2, 1996. Exhibit I-6 is a similar application submitted by the appellant and dated November 7, 1997. Exhibits I-7 and I-8 are the questionnaires completed by the appellant for the assessment of the person primarily responsible for the care and upbringing of children where there is joint custody. Exhibits I-9 and I-10 are the same questionnaires but completed by Alain Rajotte.

Analysis

[10] The definition of "eligible individual" in section 122.6 of the Act reads as follows:

"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,

(c) is resident in Canada,

(d) is not described in paragraph 149(1)(a) or (b), and

(e) is, or whose cohabiting spouse is, a Canadian citizen or a person who

(i) is a permanent resident (within the meaning assigned by the Immigration Act),

(ii) is a visitor in Canada or the holder of a permit in Canada (within the meanings assigned by the Immigration Act) who was resident in Canada throughout the 18 month period preceding that time, or

(iii) was determined before that time under the Immigration Act, or regulations made under that Act, to be a Convention refugee,

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.

   (My emphasis.)

[11] Subsection 6301(1)(d) of the Income Tax Regulations (the "Regulations"), Part LXIII, Child Tax Benefits, reads as follows:

(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

. . .

(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.

[12] Thus the presumption stated in paragraph (f) of the definition of "eligible individual" does not apply here as both parents filed an application for child tax benefit for their son who lives with both of them. It therefore remains to be determined which of the two parents mainly cared for Gaël during the periods in issue. This determination must be made based on the factors set out in section 6302 of the Regulations cited below.

[13] 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.

[14] Having heard both parents, I am of the opinion that the assessment by the Department's analyst, which leaned in the father's favour, was reasonable. The evidence showed that both parents love their child very much, each in their own way, but did not give me any grounds to amend the Minister's determination that the father was the person who mainly cared for the child Gaël during the periods in issue. Relying on the factors described in paragraphs 6302(a), (d) and (g) of the Regulations, I find that this determination was reasonably made.

[15] The appeal is accordingly dismissed.

Signed at Ottawa, Canada, this 19th day of October 1999.

"Louise Lamarre Proulx"

J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]