Date: 20000616
Docket: 98-1159-IT-I
BETWEEN:
HANK DAVIS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Bowie J.T.C.C.
[1] This appeal is about the entitlement to the child tax
credit which is payable under subdivision a.1 of Division E of
the Income Tax Act (the Act) for the period between
January and September 1995 in respect of the Appellant's
daughter Elise. The Minister of National Revenue (the Minister)
determined that the Appellant's former wife (to whom I shall
refer as "the mother") was the person entitled to
receive the payment. The Appellant's position is that he is
the one entitled.
[2] The marriage of the Appellant and the mother broke down in
the spring of 1993, or at some time before that. Elise was, by a
written agreement of the Appellant and the mother, in their joint
custody, living in turns with each of them for periods of two
weeks at a time. The Appellant and the mother both lived in the
province of Quebec at that time, he in Montreal and she in
Joliette. At some point prior to the summer of 1994, the
Appellant moved his residence to St. John's,
Newfoundland, taking Elise with him. His evidence was that he had
the mother's oral agreement to do so. In July 1994 he took
his daughter to Joliette, Quebec where she stayed with her mother
for a month. At the end of that month, the Appellant returned to
pick her up and take her back with him to St. John's.
[3] At some point thereafter, and the evidence is unclear as
to exactly when, the Appellant began proceedings in the courts of
Newfoundland to obtain sole custody of Elise. At some time
thereafter the mother began similar proceedings in the courts of
the province of Quebec. Before any hearing date was fixed for the
proceedings in the Unified Family Court of Newfoundland, the
Appellant was given notice of a hearing to take place in the
Quebec Court on May 5, 1995. According to his evidence, which I
have no reason to disbelieve, he made arrangements, or at least
thought that he had done so, through the legal office in St.
John's, Newfoundland to have a legal aid lawyer in Quebec
attend this hearing and secure an adjournment of it until he was
able to go to the province of Quebec to participate. For reasons
not known to the Appellant, he was not represented at that
hearing on May 5, and as a result an interim custody order was
made in his absence giving custody to the mother. A further
hearing date was fixed for August 1995. The Appellant testified
that he went to Joliette and attended the hearing in August, and
that upon entering the courthouse he was arrested and charged
with abduction for failing to honour the interim order that had
been made in his absence in May. At that time the interim order
was either extended, or made permanent. The Appellant's trial
date on the abduction charge was fixed for October 1995. Elise
had accompanied the Appellant to Quebec in August, and she
remained there with her mother pursuant to the August Order of
the Quebec Court.
[4] In October, as a result of a plea bargain, the Appellant
entered a plea of guilty and paid a $200 fine to avoid what he
was told would have been a lengthy trial on the abduction
charge.
[5] The Appellant testified that Elise now resides with him in
St. John's, as the result of an Order made in 1997 upon the
consent of the mother.
[6] The Minister's position is that the Appellant is
foreclosed from being considered the "eligible
individual" during the period between January and September
1995 by reason of his conviction for abduction, and the May 5
Order granting custody to the mother. Counsel for the Respondent
relied upon the maxim ex dolo malo non oritor actio. The
Appellant's position is that prior to May 1995 there was no
custody order; custody was joint by agreement between him and the
mother. He was not made aware of the May Order, and so is not
blameworthy for not complying with it.
[7] The person who is entitled to the child tax credit from
time to time is the person who satisfies the definition of
"eligible individual" which is found in section 122.6
of the Act. So far as it is relevant to this case, that
section 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 [and]
(b) is the parent of the qualified dependant who
primarily fulfils the responsibility for the care and upbringing
of the qualified dependant.
...
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;
As a result of paragraph (a) of the definition, a
person can only be the "eligible individual" if he or
she resides with the qualified dependant at the relevant time.
During the period from January 1995 to the beginning of August
1995 Elise lived with her father. He also was the parent who
primarily fulfilled the responsibility for the care and
upbringing of Elise during this period. Paragraph (h) of
the definition requires "prescribed factors to be considered
in determining what constitutes care and upbringing". Those
prescribed factors are found in Regulation 6302, which
reads:
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.
[8] The existence of a court order is only one factor to be
taken into account. It is obvious that the other factors could
only have been fulfilled by the Appellant in the present case
during the January to August period.
[9] I do not doubt the relevance of entitlement to custody in
determining who has fulfilled the parental obligations in respect
of children. However there was no custody order in place between
January and May 1995, and the Appellant was not made aware of the
existence of the May 5 Order until some time in August. If it had
been established before me that the Appellant deliberately
ignored an order of the Quebec Court relating to custody of Elise
then other issues might arise. That is not the case here however,
and the existence of the custody order cannot displace either the
requirement to live with the child, found in
paragraph (a) of the definition, or factors
(a) to (g) in Regulation 6302. It is clear
from the judgment of the Supreme Court of Canada in 65302
British Columbia Ltd. v. The Queen[1] that considerations of public
policy will not be permitted to displace clear statutory
language.
[10] In the result, the appeal will be allowed and the
determination referred back to the Minister for reconsideration
and redetermination on the basis that the Appellant is entitled
to be considered the eligible individual in respect of Elise
during the period January to August inclusive, 1995.
Signed at Ottawa, Canada, this 16th day of June, 2000
"E.A. Bowie"
J.T.C.C.
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