Citation: 2014 TCC 88
Date: 20140319
Docket: 2012-1854(IT)I
BETWEEN:
SARA PEIXOTO DAFONSECA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Pizzitelli J.
[1]
This is a sad dispute
between mother and daughter for entitlement to the Canada Child Tax Benefit (“CCTB”)
and National Child Benefit Supplement (“NCBS”) in respect of two of the children
for the period February, 2009 to June 2011 (the “Period”), as it pertains to
the 2007, 2008 and 2009 “base taxation years”. Mother and daughter resided
together at the mother’s home with daughter’s three children during the Period.
The Appellant, who was the mother in this dispute and the grandmother of the
two children, collected the benefits until it was redetermined by the Minister
that she was not the “eligible person” during the Period with respect to those
children. As a result of such redetermination dated June 20, 2011 and confirmed
February 16, 2012, the Appellant was required to pay back the sum of $12,993.45
which is the subject of this appeal. The Appellant’s daughter, C, was determined
to be the eligible individual during the Period.
[2]
The facts not in
dispute between the parties or otherwise clear from the evidence is that the
daughter C, moved into her mother’s house in Thunder Bay, Ontario after
becoming pregnant with her third child, D, before the start of the Period, and
lived in her mother’s house during the Period and afterwards until May of 2012.
C also moved into her mother’s house after becoming pregnant with her first two
children and lived there as well, moving out for periods between her
pregnancies, thus demonstrating a pattern of moving in with her mother during
such times in her life. There is also no dispute, as C had admitted in
testimony, that she experimented with and had a drug problem, at least prior to
the Period, that caused her mother, the Appellant, great concern, both for her
daughter and for her grandchildren, and that played a role in the Appellant
wanting to have her daughter and grandchildren live in her home. There is, of
course, great disagreement between mother and daughter as to the extent of the
daughter’s drug problem and lifestyle and it is frankly, in the circumstances,
far too simplistic to merely state that mother and daughter had serious
relationship issues with one another. Unfortunately, a great deal of both of
their respective testimony focused on blaming each other for their
disagreements.
[3]
The Appellant was a
personal caregiver and worked shift work at two different retirement or care
facilities. She testified she worked either morning shifts from 7:00 a.m. to
3:00 p.m. or afternoon shifts from 3:00 p.m. to 11:00 p.m., usually 3 or 4
shifts per week for either of them depending on when she was needed by them.
The evidence is that her employment wages were the main source of her income
during the Period in addition to contributions made by her daughter, C.
[4]
What is also clear from
the evidence is that the daughter, C, was not employed during the Period, nor for
a large part of the times she had moved in with her mother on earlier
occasions, and that during the Period her only sources of income was assistance
she received for rent and transportation from Ontario Works, a $100 per month
contribution from the father of her third child, D, and the amounts C received
for her third child as CCTB. There is also no question that the daughter
contributed the rent portion of her Ontario benefit, amounting to $300‑$350
per month, to the Appellant as rent but the Appellant indicates this was only
for several months while the daughter testified is was for the whole Period.
There is agreement that when the Ontario government increased the rent portion
of C’s payment by about $300 or so towards the end of the Period, that the
increase went to the Appellant for at least some of that time. There were no
receipts or any other evidence to establish what total rents were paid by C to
the Appellant nor received by the Appellant, and so this Court is left to
speculate on the issue, although frankly, what is clear is that having regard
to the daughter’s limited income sources, any financial contribution she made
to the Appellant is clearly minimal compared to the Appellant’s cost of
maintaining a 4 bedroom house in which the daughter and her three children
shared and the costs of their maintenance.
[5]
What is also clear from
the evidence is that both the Appellant and her daughter take the position they
were primarily responsible for the care and upbringing of the children in
question while acknowledging the other contributed in some manner.
[6]
The only issue to be
determined by this Court is whether the Appellant primarily fulfilled the
responsibility for the care and upbringing of the two children to qualify her
as being the eligible individual pursuant to section 122.6 of the Income Tax
Act (the “Act”) and section 6302 of the Income Tax Regulations
(the “Regulations”).
[7]
Section 122.6 of the Act
defines an “eligible individual” in respect of a qualified dependant at any
time as the person who resides with the qualified dependants, is a resident of Canada and is the parent who “primarily fulfils the responsibility for the care and
upbringing of the qualified dependant”. There is no dispute the two children in
question are qualified dependants and there is no dispute that both the Appellant,
as grandmother to the children, resided in Canada and is a “parent”, presumably
in accordance with the laws of Ontario which apply to define such term. It was
not argued by the Respondent the Appellant was not a parent in any event.
[8]
The only dispute in
this matter is whether the Appellant satisfied the condition in the definition
as being the parent who primarily fulfills the responsibility for the care and
upbringing of the two children. Section 6302 of the Regulations provides
that several factors must be considered in determining what constitutes care
and upbringing of a qualified dependant for the purposes of the definition of
an “eligible individual” under section 122.6 of the Act which are as
follows:
(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]
Having considered all
of the above factors, I can only find the evidence strongly supports the
Appellant’s position in factor (c), the maintenance of a secure environment for
the children. The evidence is overwhelming that the Appellant owned the home
and paid all the bills to maintain it. The contribution made by the Appellant’s
daughter was minimal at best having regard to the fact the daughter and her
three children lived in the Appellant’s home and contributed only small rent
portions as above described. After such contributions of rent, the daughter had
very little income left over as reviewed above. I accept that the Appellant was
receiving the CCTB and related NCBS instead of the daughter initially during
the Period and so the daughter did not have those funds then available to
contribute directly, however the evidence is also clear that even when the
daughter obtained a lump sum payment from the Canadian government after a
determination she was the eligible individual, that she did not contribute
these funds to assisting her mother in the maintenance of the home. In any
event, while the Appellant did receive those funds, it is clear she used them
to maintain the home and support her daughter and grandchildren.
[10]
As for the remaining
factors however, I must find that they all support the daughter C’s position that
C was the parent primarily responsible for the care and upbringing of the
children in question.
[11]
More specifically, the
evidence supports the fact that the daughter supervised the daily activities
and the needs of the children in factor (a) above. I accept the evidence of the
daughter as being more credible on this matter. The daughter testified she was not
working during the Period and so, since her mother was working, it was she who
woke the children, prepared breakfast, dressed and sent the older child, S, off
to school, who either walked or took the bus a few blocks away, and supervised
the preschool daughter, N, as well as the baby D, taking them with her to
counselling lessons for her drug assistance program three times per week in the
mornings to the Hope venue which had child daycare facilities. I accept the
daughter’s evidence that it was she who was back home to receive her son S when
he returned from school, help with home work and prepare dinner and deal with
their bed time preparations. There is no dispute that it was C who signed up
the children for school after she moved in with her mother and C who arranged
school bus service for her son S as well.
[12]
I accept also that the
Appellant, as a loving grandmother, also helped in these activities from time
to time, but it is clear that the Appellant, who worked shift work for two
different employers, simply could not have been present on any consistent basis
to primarily supervise these daily activities. She may well have come home
during her breaks to check on them as she testified, but checking on her
daughter and grandchildren may suggest a general oversight role, but not a
direct supervision of the grandchildren.
[13]
I should also add that
a former tenant of the Appellant, one L.C., who moved out around the time the
Appellant’s granddaughter D was born in 2008, testified that even when the
Appellant’s daughter C was at home, she slept in, due in part to her drinking
as he suggested, leaving the supervisory roles to him or the Appellant’s other
daughter who then lived at home, but frankly, his evidence was vague. He gave
no particulars as to what duties or functions he performed for the children,
and he admitted he worked night shifts 6 – 7 days per week so I do not find it
credible he would never sleep to take on these duties. In any event, it is
clear he was not there during the Period in question and cannot speak to that
time. Accordingly, I can give no weight to his evidence intended to challenge
the credibility of the Appellant’s daughter C and her competence to care for
her children. What if anything his testimony confirms is that the Appellant herself
was not available to perform such duties.
[14]
With respect to the factors
in paragraphs (c) to (g) above generally, I find that while the Appellant may
have sometimes driven the children to their doctors or attended her grandson
S’s soccer game or her granddaughter N’s dance recital or generally helped out
with the other activities described in those factors, the evidence is that the
daughter C arranged family doctor appointments, appointments with dentists or
ophthalmologist and took them to their appointments by bus the majority of
times; that C arranged for S to be signed up for soccer and attended his
games, arranged for N to take dance lessons and took her to each one, arranged
for S to take swimming lessons and took him and arranged for both S and eventually
N to be enrolled with Big Brothers Big Sisters for guidance, companionship
and exposure to same sex role models and influences. It is also clear to me
that since the Appellant also worked more or less full-time, she could not have
taken a larger role in these activities or in dealing with the illness or
hygienic requirements of the children which fell to C. I do not doubt she
helped where she could but cannot find she was the primary person responsible
in these matters. It is clear to me C was the stay at home parent who primarily
fulfilled these duties.
[15]
I note as well that the
Appellant’s testimony on these factors was vague and general, giving few
details as to the particulars of any of these activities or her role with them,
while the daughter testified specifically on the types of activities she
arranged for the children or supervised and so I found her testimony to be more
reliable on these matters.
[16]
With respect to factor
(h), the existence of a Court Order in respect of the children, it should be
noted none exists. There is no evidence C was not the person with legal
authority over or custody of the children,
[17]
A great deal of time
was spent by the Appellant in suggesting a Service Plan signed with the
Children’s Aid Society (“CAS”) with the date of October 9, 2008 shows that the
Appellant was primarily responsible for the care and upbringing of the children,
but frankly, such Service Plan does not in my opinion transfer or give the
Appellant any such stature or role. The Service Plan clearly addresses the
daughter’s need to obtain help for her substance abuse and recognizes that the
mother’s strength was her strong family support and that the Appellant was
tasked with ensuring the children’s safety. In my view, such task is that of a
watchful eye particularly in light of the daughter’s substance abuse issues,
not an assignment of supervisory roles or custody. I would think such a measure
if intended would be clear and more formal.
[18]
The only other evidence
pertaining to this issue was Case Conference Minutes of January 15, 2009 admitted
into evidence being the minutes of a meeting held with the CAS representative
and various health program representatives together with C and the Appellant.
Such minutes demonstrated C had met her obligations under the Service Plan and
the CAS even stated in paragraph 6 thereof:
Christine
Galati of CAS reports child welfare file opened April, 2008 due to drug and
alcohol use and resulting impact on C’s children. C has followed through on
CAS’s expectations of her since Christine became the worker in Sept. 2008 and
at the present time, CAS would not interfere if C chose to move out of her
mother’s home and live independently with her children.
[19]
It is clear from the
above that CAS opened a file to monitor C’s conduct and its impact on the
children, arranged to have a Service Plan that required C to obtain
professional help and counselling for her abuse problems while she and the
children lived safely at the Appellant’s home and decided clearly that C had
honoured her commitment and satisfied CAS she was no longer a threat to her
children; all before the Period even started. I might also add that this
further discredits the Appellant’s claim that her daughter was not competent to
exercise that role during the Period. The evidence is that she was.
[20]
It is clear from the
above that I find that the Appellant was not the person primarily responsible
for the care and upbringing of the children in question and accordingly was not
the “eligible individual” during the Period.
[21]
I have no doubt the
love and support of the Appellant, during the Period and during the daughter’s
earlier pregnancies, have played a crucial role in allowing her daughter to keep
and maintain the custody of her children. I have no doubt that even though the daughter
testified she often left her mother’s house because of the “intolerable”
situation, referencing her strained relationship with her mother who she
accused of being too controlling, she had no problem tolerating her mother when
her mother financially supported her and her children to the degree she did. I
also have no doubt the Appellant used those funds received as CCTB and NCBS
during the Period before being requested to return it for the benefit of those
for whom the funds were intended, namely the children and their mother C. What
emerges from the evidence is a tale of a mother who repeatedly opened her home,
heart and wallet to her daughter and grandchildren. It is then almost
intolerable for me to find for the Respondent in this matter as the funds were
used for their intended purposes as should have been the case had the funds
been directed to the daughter in the first place. However, based on the
analyses of the law and facts I must find the Appellant was not the eligible
individual entitled to receive such benefits during the Period as unfortunate,
thankless and even insulting as this must seem to the Appellant in the
circumstances. It is unfortunate the system allows funds to be paid out to a
new eligible individual and a former eligible individual is asked to pay them
back in circumstances where the funds are actually used for their intended
purposes, but that is a matter for Parliament to address, not this Court.
[22]
The Appeal is
dismissed.
Signed at Toronto, Ontario this 19th day of March 2014.
“F.J. Pizzitelli”
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