Citation: 2013 TCC 72
Date: 20130226
Docket: 2012-2283(IT)I
BETWEEN:
TANZINA HASIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Campbell J.
[1]
These appeals relate to
benefits which the Appellant has received for the 2006, 2007 and 2008 base
taxation years in respect to her daughter, who was diagnosed as being autistic
in May, 2003. Those benefits consist of the Canada Child Tax Benefit, the Child
Benefit Supplement and the Child Disability Benefit, together referred to as
the “Benefits” throughout my reasons. Because the Benefits reference base
taxation years, the period covered is from July, 2007 through to June, 2010.
[2]
By Notice of
Confirmation, dated January 31, 2012, the Minister of National Revenue (the
“Minister”) disallowed the Appellant’s entitlement to these benefits pursuant
to section 122.61 of the Income Tax Act (the “Act”) on the basis
that she ceased to be a resident of Canada as of April, 2006.
[3]
Both the Appellant and
her husband gave evidence at the hearing, which was held via videoconferencing from
Bangladesh. They both confirmed essentially the same set of facts and
circumstances surrounding their departure from Canada and their present and
future living arrangements and goals.
[4]
The Appellant and her
husband came to Canada from Bangladesh in January, 2001. When the Appellant’s
daughter was initially diagnosed as autistic in 2003, they were able to access
various programs and therapies offered here in Canada. In 2005, when their
daughter turned six years old, their eligibility for these programs terminated.
Consequently, they made the decision to return to Bangladesh and did so in
April, 2006. They testified that they hoped that their daughter would respond
to the family support system and environment that Bangladesh could offer the
family.
[5]
On cross-examination,
the Appellant’s husband testified that, when they left Canada in 2006, they gave up their leased premises, sold all their furnishings and
belongings and sold their motor vehicle. They retained Canadian passports and
one Canadian bank account, which is used infrequently. In fact, the Appellant’s
husband was unsure of the last time they accessed it. Since returning to Bangladesh, they have leased a residence, own a motor vehicle and the Appellant’s husband has a
valid driver’s licence from Bangladesh. They maintain a bank account there as
well. They have one year left on their residential lease. The daughter is now
13 years old and enrolled in a special private school in Bangladesh. The parents both testified that she has improved since they returned to Bangladesh and that she continues to do well at this special school. Both the Appellant and
her husband stated that they have no definite plans to return to Canada, as the present arrangements were working for their daughter. They both testified,
however, that they might return when the daughter reached adulthood if there
were programs in Canada that could be offered to her as an adult. They have not
returned to Canada since they left in early 2006.
[6]
The essence of the
Appellant’s position is that she and her husband were not taking issue with the
residency requirements and jurisprudence but that, since their daughter was a
special needs child, this Court should make an exception to the rules because
holding Canadian citizenship should entitle their daughter to the same benefits
as every other special needs Canadian child. Of course, I have no such
authority to carve out an exception to the legislative provisions and abundant
jurisprudence in this area to meet what they consider to be their exceptional
circumstances.
[7]
The bottom line is
that, for a taxpayer to be eligible for such benefits, they must be a resident
of Canada.
[8]
Entitlement to these
Benefits is provided for pursuant to section 122.6 of the Act. The
“eligible individual”, entitled to receive such benefits as defined within that
provision, must be, according to “(c)” of that definition, “resident in Canada…”. That is a prerequisite to being eligible for such benefits. If one is not
resident in Canada, then one will not meet that portion of the definition of
eligible individual. Determination of the residency issue is largely one of
fact-finding in each individual appeal.
[9]
I believe K. Sharlow
J.A. of the Federal Court of Appeal in Laurin v. The Queen, 2008 FCA 58,
2008 D.T.C. 6175, at paragraph 2, succinctly summarizes the Crown’s position on
residency in that case and the Court’s agreement with that position:
[2] The
Crown submits that a person is resident in the country where he or she, in the
settled routine of life, regularly, normally or customarily lives, as opposed
to the place where the person unusually, casually or intermittently stays. We
agree.
[10]
Jurisprudence has
enumerated a number of factors that, while not exhaustive, will be material to
the determination of residence and ultimately the payment of benefits under
section 122.61. At paragraph 13 of The Queen v. Reeder, [1975] C.T.C.
256, 75 D.T.C. 5160, Mahoney J. stated the following:
[13] …
While the list does not purport to be exhaustive, material factors include:
(a)
past and present habits of life;
(b)
regularity and length of visits in the jurisdiction asserting residence;
(c)
ties within that jurisdiction;
(d)
ties elsewhere;
(e)
permanence or otherwise of purposes of stay abroad.
The
matter of ties within the jurisdiction asserting residence and elsewhere runs
the gamut of an individual’s connections and commitments: property and
investment, employment, family, business, cultural and social are examples,
again not purporting to be exhaustive. Not all factors will necessarily be
material to every case. They must be considered in the light of the basic
premises that everyone must have a fiscal residence somewhere and that it is
quite possible for an individual to be simultaneously resident in more than one
place for tax purposes.
[11]
Putting aside the
concession of the Appellant respecting residency, I conclude without
hesitation, that, based on the facts before me, the Appellant is not a resident
of Canada and, consequently, is not eligible to receive these Benefits.
[12]
The family returned to Bangladesh several years after they came to Canada with the hope that it would assist their autistic
daughter. They had no specific plans to return and sold all of their
possessions before leaving this country. They retained their Canadian passports
and one bank account, which is used infrequently. They have never returned to Canada in the almost 7 years since they left. They are unsure if they will return and,
again, that is largely dependant on what might be offered their daughter in
this country when she reaches adulthood. They have established a life in Bangladesh, having leased an apartment, purchased a motor vehicle and re-established family
ties. The Appellant’s husband is employed and earns a salary of $1,500 U.S. equivalent. They have no Canadian income.
[13]
Except for the Canadian
passport and an infrequently used bank account, they have severed all ties to Canada. They have no connection to this country. This is not a case where some factors
point in one direction while some point in another and, on a balance of
probability, must be weighed in that context. Viewed as a whole, the facts in
these appeals lead to no other conclusion except that the Appellant is not a
resident of Canada, having re-established her and her family’s residency in Bangladesh. Since she ceased to be a resident of Canada in April, 2006, she is not entitled
to the Benefits pursuant to section 122.61 of the Act.
[14]
The Appellant made the
comment that it would be unfair to request repayment of these Benefits if they
are considered by the Minister to have been paid to her in error. As I
explained to both the Appellant and her husband during the hearing, the
Minister is not bound by a prior assessment. If new facts come to the
Minister’s attention, he may be entitled to reassess and to do so retroactively,
thereby requiring repayment of a deemed overpayment to a taxpayer.
[15]
The appeals for the
base taxation years 2006, 2007 and 2008 are dismissed.
Signed at Ottawa, Canada, this 26th day of February 2013.
“Diane Campbell”
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