Selvan v. The Queen, docket 1999-1238-IT-I (Informal Procedure)

Date: 20000302

Docket: 1999-1238-IT-I

BETWEEN:

TILLAINATHAN SELVAN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasonsfor Judgment

P.R. Dussault, J.T.C.C.

[1]            This is an appeal from a determination made by the Minister of National Revenue on April 20, 1998 that the appellant was not an eligible individual under section 122.6 of the Income Tax Act (the"Act") in respect of his son Dexter Selvan for the period of April 1996 to June 1996 as regards the base year 1994, for the period of July 1996 to June 1997 as regards the base year 1995 and for the period of July 1997 to March 1998 as regards the base year 1996. The Child Tax Benefit was thus reduced to nil with respect to the appellant for the periods in issue.

[2]            Paragraph 3 of the Reply to the Notice of Appeal is very brief. It states the following:

3.       In so establishing the Child Tax Benefit Notices, the Minister made the following assumptions of fact:

a)       during the taxation years 1996, 1997 and 1998, the Appellant was divorced from Danuta Stasinska;

b)       Dexter Selvan is the child of the Appellant and Danuta Stasinska;

c)       from April 1996 to March 1998, the child, Dexter Selvan, was living with his mother, Danuta Stasinska.

[3]            The only question in issue is whether the Minister was wrong in determining that the appellant was not the eligible individual for the periods in issue.

[4]            The definition of "eligible individual" in section 122.6 of the Act reads:

"eligible individual" - "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 by the Convention Refugee Determination Division of the Immigration and Refugee Board 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 circumstances set out in regulations made by the Governor in Council on the recommendation of the Minister of Human Resources Development, and

(h)    factors to be considered in determining what constitutes care and upbringing may be set out in regulations made by the Governor in Council on the recommendation of the Minister of Human Resources Development.

(i)     

[5]            For the purposes of paragraphs (g) and (h) of the definition of "eligible individual" in section 122.6 of the Act, sections 6301 and 6302 of Part LXIII of the Income Tax Regulations (the "Regulations"), provide the following:

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

(a)         the female parent of the qualified dependant declares in writing to the Minister of National Health and Welfare that the male parent, with whom she resides, is the parent of the qualified dependant who primarily fulfils the responsibility for the care and upbringing of each of the qualified dependants who reside with both parents;

(b)         the female parent is a qualified dependant of an eligible individual and each of them files a notice with the Minister of National Health and Welfare under subsection 122.62(1) of the Act in respect of the same qualified dependant;

(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 of National Health and Welfare 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 of National Health and Welfare 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 where such persons live at different locations.

(2) For greater certainty, a person who files a notice referred to in paragraph (1)(b), (c) or (d) includes a person who is not required under subsection 122.62(3) of the Act to file such a notice and a person for whom the requirement to file such a notice has been waived by the Minister of National Health and Welfare under subsection 122.62(5) of the Act.

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 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.

(i)      

[6]            We are only concerned here with the condition set out in paragraph (b) of the definition of "eligible individual", namely, that the parent of the qualified dependant must be the one "who primarily fulfils the responsibility for the care and upbringing of the qualified dependant".

[7]            It seems, although this is not clear, that in making the determination the Minister relied on the presumption referred to in paragraph (f) of the definition of "eligible individual" in section 122.6 of the Act.

[8]            The appellant, Danuta Stasinska and their son Dexter Selvan testified.

[9]            Although no documents were filed in this respect, both the appellant and Ms. Stasinska testified that they had joint custody of their son Dexter following the divorce. It is clear, despite contradictory evidence as to his primary residence, that during the periods in issue Dexter resided sometimes with his mother in Pierrefonds, Quebec, and sometimes with his father in Laval, Quebec. Although Dexter was registered at a school in Laval during the 1995-1996 and 1996-1997 school years, he testified that he spent equal amounts of time with his mother and his father.

[11]          To support his claim, the appellant filed in evidence his son's school record, which indicated his own address in Laval (Exhibit A-1). Ms. Stasinska testified that following the move to Pierrefonds in the summer of 1995, Dexter failed to adapt to the new school. In September, after three weeks, it was decided to re-enrol Dexter at his former school in Laval and, to this end, to give his father's address.

[12]          In the fall of 1997, Dexter attended Dawson College in Westmount. The address he gave was his mother's in Pierrefonds (Exhibit R-1). In September 1997, Dexter also signed a declaration sent to Revenue Canada that his address was indeed in Pierrefonds at the time (Exhibit R-2). Although the appellant stated that this declaration was signed under pressure, Dexter stated that it was not.

[13]          Nevertheless, regardless of which address was used, Dexter maintained that he was residing equally with each parent.

[14]          This would be enough for me to conclude that Dexter was not solely residing with his mother, which means that the presumption in paragraph (f) of the definition of "eligible individual" in section 122.6 of the Act would not be applicable.

[15]          Paragraph 6301(1)(d) of the Regulations might also be applicable in the circumstances of the present appeal. If the conditions of that paragraph have been satisfied, the presumption referred to above would not apply in any case. When the presumption does not apply, the question as to which parent was the one who primarily fulfilled the responsibility for the care and upbringing of the "qualified dependant" during the periods in issue is to be determined in accordance with the factors enumerated in section 6302 of the Regulations.

[16]          Although the appellant claims to have bought clothing, eyeglasses and contact lenses and to have paid for many other expenses in addition to having made arrangements for his son to lease a new car in May 1998, Ms. Stasinska testified that she also provided clothing and other necessities. This was corroborated by Dexter's testimony. Ms. Stasinska also claimed to have been the one most concerned with Dexter's education, both academic and religious, and that she was the one who registered Dexter at school in Pierrefonds and then back in Laval in September 1995. She also claimed to have been present at all the parent-teacher meetings.

[17]          In reviewing the factors enumerated in section 6302 of the Regulations with Dexter, I could obtain only vague or neutral answers.

[18]          In light of the factors to be considered, which are based on care, attention, participation and involvement, and of the evidence adduced in the present case, which is quite unsatisfactory in many respects, I must conclude that the appellant has offered insufficient evidence to show, on a balance of probabilities, that he has satisfied the condition set out in paragraph (b) of the definition of "eligible individual" in section 122.6 of the Act, namely that he was, during the periods in issue, the parent who primarily fulfilled the responsibility for the care and upbringing of his son Dexter.

[19]          Therefore, the appeal is dismissed.

Signed at Ottawa, Canada, this 2^nd day of March 2000.

"P.R. Dussault"

J.T.C.C.

COURT FILE NO.:                                                 1999-1238(IT)I

STYLE OF CAUSE:                                               Between Tillainathan Selvan and

                                                                                                Her Majesty The Queen

PLACE OF HEARING:                                         Montréal, Quebec

DATE OF HEARING:                                           February 18, 2000

REASONS FOR JUDGMENT BY:      The Honourable P.R. Dussault

DATE OF JUDGMENT:                                       March 2, 2000

APPEARANCES:

For the Appellant:                                                 The Appellant himself

Counsel for the Respondent:              Suzanne Morin

COUNSEL OF RECORD:

For the Appellant:                

Name:                                --

Firm:                  --

For the Respondent:                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                                Ottawa, Canada

1999-1238(IT)I

BETWEEN:

TILLAINATHAN SELVAN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeal heard on February 18, 2000 at Montréal, Quebec, by

the Honourable Judge P.R. Dussault

Appearances

For the Appellant:                      The Appellant himself

Counsel for the Respondent:      Suzanne Morin

JUDGMENT

          The appeal from the determination made by the Minister of National Revenue under the Income Tax Act on April 20, 1998 for the 1994, 1995 and 1996 taxation years is dismissed in accordance with the attached Reasons for Judgment.

Signed at Ottawa, Canada, this 2^nd day of March 2000.

J.T.C.C.