Bowie T.C.J.:
1 At issue in these appeals is the Appellant's claim for entitlement to the Child Tax Benefit (CTB) in respect of the four children born to the Appellant and his former spouse, Donna Lynn Weiker, whom I shall refer to throughout as Ms. Weiker. The four children of the marriage are:
| Nicholas: | Born May 14, 1981; |
| Sarah: | Born March 11, 1983; |
| Danielle: | Born June 19, 1988; and |
| Aaron: | Born September 21, 1993. |
2 The period in dispute is between July 1994 and February 1996. The Minister of National Revenue (the Minister) has determined that the Appellant was the “eligible individual” in respect of the children during the following months:
| Nicholas: | January, February, March, October, November and December of 1995; January, February 1996 |
| Sarah: | April, May, September and October of 1995; |
| Danielle: | January and February of 1995 |
| Aaron: | January and February of 1995. |
3 At the opening of trial counsel for the Minister conceded that, in addition to the above, the Appellant was entitled to be considered the eligible individual in respect of Nicholas for the month of September 1995 and in respect of Sarah for the month of March 1995. It is the Minister's position that Ms. Weiker, is the eligible individual in respect of these children during the other months of the period in dispute. Which parent is the eligible individual from time to time for the purposes of this appeal turns upon paragraphs a) and b) of the definition of “eligible individual” in section 122.6 of the Income Tax Act (the Act).
4 It is the Appellant's position, stated at the opening of the trial, that he is the eligible individual, over and above the periods allowed to him by the Minister's determinations, and the concession made by counsel, as follows:
| For all four children: | July to December 1994; |
| For Sarah: | June, July and August 1995; |
| For Danielle: | March to December 1995; and |
| For Aaron: | March to December 1995. |
5 The Appellant and his former spouse lived together, with their four children, until October 27, 1994. On that date, Ms. Weiker left the matrimonial home and took all the children with her. There have been a number of Orders made by the Alberta Court of Queen's Bench in relation to the custody of these children. Only two of those appear to be relevant to the issues which I must decide. The first of these was an interim interim Order made by Mr. Justice Marshall on February 2, 1995. It gave custody of Nicholas, Danielle and Aaron to the Appellant, and custody of Sarah to Ms. Weiker. The second is an interim Order made on February 17, 1995 by Mr. Justice Agrios. By the terms of that Order, Danielle and Aaron were placed in the custody of their mother, and custody of Nicholas and Sarah was awarded to the parents jointly, with those two children being permitted to choose which parent they wished to live with. There were, in addition, certain ancillary provisions about which I will say more later.
6 The following provisions of the Income Tax Act and Regulations govern the question who is the eligible individual (and therefore recipient of the CTB) from time to time. Only the parts relevant to these appeals are reproduced.
Income Tax Act
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- 122.6 “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,
(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 National Health and Welfare, 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 National Health and Welfare;
“qualified dependant” at any time means a person who at that time - 122.61(1) Where a person and, where the Minister so demands, the person's cohabiting spouse at the end of a taxation year have filed a return of income for the year, an overpayment on account of the person's liability under this Part for the year shall be deemed to have arisen during a month in relation to which the year is the base taxation year, equal to the amount determined by the formula
[the definitions of A and B are not relevant to the decision of these appeals]
122.62(1) For the purposes of this subdivision, a person may be considered to be an eligible individual in respect of a particular qualified dependant at the beginning of a month only if the person has, no later than 11 months after the end of the month, filed with the Minister of National Health and Welfare a notice in a form authorized, and containing information required, by that Minister.
Income Tax Regulations
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- 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;
(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.
- 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.
9 The definition of “eligible individual” requires that a person, to meet the definition, must reside with the child in question. It also establishes a presumption in favour of the mother, but this presumption does not apply, by reason of Regulation 6301, if the mother files a declaration in writing with the Minister of National Health and Welfare that the male parent with whom she resides is the parent who primarily fulfills the responsibility for the care and upbringing of the children, or if there are claims made for the benefit by two persons who are living apart, and the child is living with each of them (presumably under a shared custody arrangement). No declaration has been filed in this case by Ms. Weiker. The Appellant did file a claim for the CTB following the separation, to be effective from November 6, 1994, the date from which he claimed in the form to have been living with the children, and to have been their primary caregiver.
10 I shall consider the Appellant's claim to be entitled to the CTB in three separate periods; first the pre-separation period between July and October 1994, second the period from November 1994 to February 1995, when the parents were separated, but prior to the interim custody Order made by Agrios J., and third the period from March 1995 to February 1996, while the Appellant and Ms. Weiker were living apart, and custody was governed by the interim Order of Agrios J.
11 As I understood him, the Appellant put his case for entitlement during the first period primarily upon the basis of an agreement which he said had been reached between himself and Ms. Weiker, whereby he, rather than she, would be the recipient of the CTB for those months. In addition, he claims to be the eligible individual during this period, or at least part of it, by the operation of the Act and the Regulations, on the basis that he primarily fulfilled the responsibility for the care and upbringing of the children during this period.
12 The Appellant cannot succeed in respect of the first period. The evidence is conflicting as to the existence of an agreement. The Appellant says that there was one, and Ms. Weiker says that there was not. I am inclined to accept her evidence over his wherever they differ, because she gave her evidence in a straightforward manner and appeared to be telling the truth to the best of her recollection of the events. The Appellant gave the impression in his evidence that to him, this appeal was as much about defeating his former spouse as it was about settling a genuine dispute as to the entitlement to certain payments. His evidence, I believe, was at times coloured by his highly emotional state. In any event, whether or not there was an agreement between them, the presumption in favour of the children's mother exists with respect to the pre-separation period, in the absence of a declaration filed by Ms. Weiker. That presumption continues until at least the effective date of the Appellant's claim, on November 6, 1994. The Appellant can therefore only be entitled if he can overcome the presumption by evidence that establishes that he, and not Ms. Weiker, was the primary caregiver during that period. No such evidence is before me, and I therefore conclude that the Appellant has no entitlement prior to the beginning of November 1994.
13 I turn now to the second period. There being no joint custody arrangement during this period, the Appellant can only be considered the eligible individual if the children, or any of them, resided with him. When Ms. Weiker left the matrimonial home on October 27, the children accompanied her. They all remained with her through the month of November, and Sarah remained with her throughout this whole period. Nicholas, Danielle and Aaron lived with their father for December, January and February, and I believe that he was the primary caregiver throughout. The Minister, in paragraph 6 of the Reply to the Notice of Appeal, has accepted that for the months of January and February. The Appellant is eligible in respect of three children for the month of December 1994, over and above his entitlement, of which he has already been notified, for the months of January and February, 1995.
14 Custody of the children during the third period is governed by the interim Order made by Agrios J. The existence of that Order, and by implication its terms, is one, but only one, of the criteria by which I must be governed. Regulation 6302 specifies seven other criteria to be applied as well. The evidence before me as to the fulfillment of these various criteria by the two parents from time to time was sparse. The issue is complicated by two factors arising out of the interim custody Order itself. One of these is that the Order grants custody of Danielle and Aaron to their mother, with access to their father, and goes on to provide that “...in addition to the access set out in paragraph 3, the [father], if the [mother] is working, shall provide the required baby-sitting”. The other is that the Order gives to both parents joint custody of Nicholas and Sarah, with each of them “...at liberty to chose[sic] with which parent they wish to reside”.
15 The Appellant entered into evidence a great many documents which were intended to show that he was the parent who, during this period, primarily fulfilled the responsibility for the care and upbringing of all of the children. It was his contention that he, at least in part through the care that he gave to Danielle and Aaron while Ms. Weiker was at work, qualified as their primary caregiver. The difficulty with that contention is that the definition requires that in order to be the “eligible individual” with respect to a particular child, a person must, among other things, reside with the child. I accept the evidence of Ms. Weiker that these two children lived with her and not the Appellant throughout the period after March 1995, in accordance with the interim custody Order. Consequently, the Appellant cannot be the “eligible individual” in respect of them during this period.
16 As to Nicholas and Sarah, I am of the opinion that the entitlement in respect of them during the third period must also be decided on the basis of which parent they were living with from time to time. In a case of joint custody, where the Court establishes a rotation between the two parents, it may well be said that the child resides with both parents, with the result that the entitlement falls to be determined solely on the basis of which parent can successfully claim to be the primary caregiver upon the application of the criteria (a) to (g) in Regulation 6302. This is not such a case, however. Mr. Justice Agrios left these two children free to decide with whom they wished to live, and the evidence, sparse as it is, leads to the conclusion that each of them lived with only one parent at a time, although the chosen parent did vary from time to time. Again, I accept the evidence of Ms. Weiker, which was that Nicholas resided with her from April to August 1995, and with the Appellant from September onwards, and that Sarah lived with the Appellant during March, April and May, 1995 with her mother during June, July and August, with the Appellant during September and October, and with her mother thereafter. The Appellant is therefore entitled to be considered the eligible individual in respect of Nicholas for September 1995 and in respect of Sarah for March 1995, as has been conceded by counsel for the Respondent. Otherwise the Minister's determination for this period, as the Appellant was notified of it, is correct.
17 In summary, therefore, the Appellant is entitled to be considered the eligible individual entitled to the CTB in respect of three children for the month of December 1994, in respect of two children rather than one for the month of March 1995, and in respect of two children rather than one for the month of September 1995. Otherwise, the Minister's determinations are correct. To that extent only, the appeals are allowed.
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