Citation: 2013 TCC 302
Date: 20130926
Docket: 2012-3849(IT)I
BETWEEN:
Milca Kwangwari,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Lamarre J.
[1]
These are appeals from
determinations issued by the Minister of National Revenue (Minister)
requiring the appellant to pay back overpaid Canada child tax benefit (CCTB)
amounts on the basis that she was not an eligible individual pursuant to
section 122.6, paragraph (a) of the Income Tax Act (ITA)
for the period from July 2009 to June 2011 with respect to her oldest
child YK, born in Zimbabwe in 1999, and who entered Canada on July
14, 2011; and pursuant to section 122.6, paragraph (e) for the
period from July 2009 to November 2010 with respect to her youngest child JK,
who was born in Canada in 2007. Amounts of $2,234 for the period from July 2009
to June 2010 and $913.56 for the period from July 2010 to June 2011 are now
claimed from the appellant (see Reply to the Notice of appeal, par. 2 and 3).
[2]
Section 122.6 of the
ITA defines “eligible individual” as follows:
Subdivision a.1 —
Canada Child Tax Benefit
122.6. Definitions — 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 a parent of the qualified dependant who
(i)
is the parent who primarily fulfils the responsibility for the care and
upbringing of the qualified dependant and who is not a shared-custody parent in
respect of the qualified dependant, or
(ii)
is a shared-custody parent in respect of the qualified dependant,
(c)
is resident in Canada or, where the person is the cohabiting spouse or
common-law partner of a person who is deemed under subsection 250(1) to be
resident in Canada throughout the taxation year that includes that time, was resident
in Canada in any preceding taxation year,
(d)
is not described in paragraph 149(1)(a) or 149(1)(b), and
(e)
is, or whose cohabiting spouse or common-law partner is, a Canadian citizen or
a person who
(i)
is a permanent resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act,
(ii)
is a temporary resident within the meaning of the Immigration and Refugee
Protection Act, who was resident in Canada throughout the 18 month period
preceding that time, or
(iii)
is a protected person within the meaning of the Immigration and Refugee
Protection Act,
(iv)
was determined before that time to be a member of a class defined in the Humanitarian
Designated Classes Regulations made under the Immigration Act,
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.
[3]
Up until November 2010,
the appellant and her spouse, Keith Musiyazviriyo, were neither Canadian
citizens, nor permanent residents, nor temporary residents, nor protected
persons within the meaning of the Immigration and Refugee Protection Act.
They had not been determined before that time to be members of a class defined
in the Humanitarian Designated Classes Regulations made under the
Immigration Act.
[4]
As a matter of fact,
the appellant and her spouse received their landed immigrant status on
November 26, 2010 (Exhibit R-1). From March 2, 2007 to
May 26, 2010, the appellant had work permits issued by the Minister
of Citizenship and Immigration of Canada, but those permits specified that they
did not confer temporary resident status (Exhibit R-2).
[5]
The appellant does not dispute
the foregoing facts. She and her spouse feel, however, that they never hide
anything from the Canada Revenue Agency (CRA) and question why they should
now have to pay for a mistake made, according to them, by the CRA.
[6]
When their second child
was born, in Canada, on February 28, 2007, they were told by the hospital
to file an application in order to receive the CCTB. For that purpose, they had
to fill out a questionnaire, which they sent to the CRA. Apparently, it was indicated
in that questionnaire that the appellant’s spouse was a Canadian citizen. The
respondent filed through a CRA litigation agent, Mr. Hubert de Groot,
a document that the agent identified as being a digitalization of that
questionnaire (Exhibit R-3), which questionnaire has since been destroyed.
[7]
Mr. de Groot testified
that the information that the appellant’s spouse was a Canadian citizen had to have
been taken from the questionnaire filled out by the appellant. However, both
the appellant and her spouse testified that they never indicated on the
questionnaire that the appellant’s spouse was a Canadian citizen. Even had they
done so, which again, they say they did not, they do not understand why the CRA
did not ask for proof of citizenship at the time, just as it asked for proof of
their address as well as proof of their work permits, which show that they did
not confer upon them temporary resident status.
[8]
Mr. de Groot
was not familiar with immigration procedure and could not testify on this point.
All he could say was that it must have been indicated on the questionnaire that
the appellant’s spouse was a Canadian citizen; he could not say whether it was
a mistake by the appellant or by a government agent. The questionnaire has been
destroyed, and it is impossible to verify the information provided at the time.
[9]
What seems obvious now is
that it was because of that error that the appellant received the CCTB for her
youngest child to which she was not entitled under the ITA. This was discovered
several years later, hence the determinations under appeal by which the CRA now
claims repayment.
[10]
It is clear from the
evidence that the appellant was not an eligible individual within the meaning
of section 122.6 of the ITA. Therefore, I have no other choice than to conclude
that the Minister’s determinations are correct and that the appellant was not eligible
to receive the CCTB for the periods at issue.
[11]
However, taking into
account the fact that the overpayment of the CCTB to the appellant for the
youngest child was due to a mistake which may have been made by a CRA agent,
this may be a case in which the Minister may consider possible remission under
section 23 of the Financial Administration Act. I do not, however, have the
authority to order such remission (see Samayoa v. Canada, [2006] T.C.J.
No. 367 (QL), 2006 TCC 469, par. 18; Bituala-Mayala v. Canada,
[2008] T.C.J. No. 90 (QL), 2008 TCC 125, par. 8).
[12]
I should also note that
recommendations have been made by the Taxpayer’s Ombudsman that the CRA take certain
steps to make it easier for taxpayers to understand the CCTB eligibility
requirements. These recommendations were made following complaints received
from taxpayers that some of the rules regarding eligibility for the CCTB are
not clear and that adequate explanations of those rules are sometimes difficult
to obtain, which can result in the cancellation of benefits and the recovery of
benefits already paid, as is the case here (see Proving Your Status, Establishing
Eligibility for the Canada Child Tax Benefit, Ombudsman special report,
October 2010 / J. Paul Dubé, Taxpayers’ Ombudsman).
[13]
The appeals are
dismissed.
Signed at Montreal, Quebec, this 26th day of September 2013.
“Lucie Lamarre”
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