Date: 19980126
Docket: 97-472-IT-I
BETWEEN:
GUYLAINE GAGNÉ,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
G. TREMBLAY, J.T.C.C.
Point at issue
[1] According to the Notice of Appeal and Reply to the Notice
of Appeal, the question is whether the Minister correctly
concluded that the appellant and her ex-husband
Florent Lemieux were each, for an equal number of months
during the base year 1994, the parent who was primarily
responsible for the care and education of their sons Guillaume
and Manuel pursuant to ss. 122.6 to 122.64 of the Income
Tax Act ("the Act"). The respondent took this
decision as the parents were unable to agree.
[2] Both parents allegedly took care of their children during
the period from July 1995 to June 1996. The appellant
maintained that during the said period she was solely responsible
for the children's expenses both at school and for
recreation, insurance, clothing and so on. The respondent claimed
the sum of $329.42 from the appellant.
Burden of proof
[3] The appellant has the burden of showing that the
determination of the child tax benefit by the respondent was
incorrect. This burden of proof results from several judicial
decisions, including a judgment of the Supreme Court of Canada in
Johnston v. Minister of National Revenue.[1]
[4] In the same judgment the Court held that the facts alleged
by the respondent in support of his decision are also deemed to
be true until proof to the contrary is shown. The facts assumed
by the respondent in the instant case are set out in
paragraph 6 of the Reply to the Notice of Appeal, which
reads as follows:
[TRANSLATION]
6. In preparing the child tax benefit notice dated
August 20, 1996 for the 1994 base year the Minister assumed
a number of facts including the following:
- during the period at issue the appellant was separated from
her ex-husband, Florent Lemieux; [admitted]
- the appellant and Florent Lemieux were the parents of
Guillaume and Manuel, born on September 27, 1983 and
July 27, 1987 respectively; [admitted]
- the appellant and her ex-husband had joint custody of
their two sons; [admitted]
- responsibility for the care and education of the two sons
was borne by both parents during the period from July 1995
to June 1996; [denied]
- as it was impossible for the parents to agree the Minister
revised the child tax benefit for April, May and June 1996 to nil
so far as the appellant was concerned, so that these benefits
would be allocated for the 1994 base year for an equal number of
months between the appellant and Florent Lemieux:
Month Appellant Florent Lemieux
July 1995 x
August 1995 x
September 1995 x
October 1995 x
November 1995 x
December 1995 x
January 1996 x
February 1996 x
March 1996 x
April 1996 x
May 1996 x
June 1996 x
- the sum of $329.42 was calculated as an overpayment of child
tax benefits received by the appellant.
Facts in evidence
[5] Following the foregoing admissions the evidence also
consisted of the testimony of the appellant and of
Muguette Nadeau, an appeals officer of the respondent.
[6] The facts alleged in the appellant's Notice of Appeal
adequately summarize her testimony:
[TRANSLATION]
Montmagny
February 13, 1997
Revenue Canada
Taxation Centre
To whom it may concern:
I am challenging your decision on child tax benefits for 1994
as for this period, from July 1995 to January 1996, I was
solely responsible for all the children's expenses, namely
school fees, recreation, insurance, clothing and so on and
providing a suitcase with what was required for the week of
custody at my ex-husband’s home.
Strangely, when he received the whole allowances from January
to March 1996 there was no further mention of a suitcase:
this was a case of double standard. He took the money but did
nothing for them. I had to buy sneakers for the little one in
this period because frankly . . . he looked
terrible. The soles were completely gone.
When I was given the allowances in March I divided the
expenses in making the calculation you will find enclosed. You
will note that he had already received half of the whole amount
he was still claiming. It is too much. I would add that this was
only a small amount compare to what it cost me (invoice in
support), but I did not want to "upset" him. In short,
I am still paying for all recreational expenses such as roller
skates, skateboards and snowboards, which the children use daily
both at my home and his, and I have never asked him for anything
in this respect.
Furthermore, since he has been receiving half of the benefit
he has never repaid me the life insurance portion or the medical
and dental insurance portion. Guillaume, for whom he is receiving
benefits, lost his coat when he was in his charge. Who had to buy
him another one? His sneakers were completely ruined. Who bought
him a new pair? - and toques and mittens? I am always the
one who has to see to this. I am sick and tired of this but if I
did not do it, who would? - and most importantly, who would
suffer? - always the children. I find this situation very
unfair and the children will confirm what I am saying if
necessary. Guillaume was really not happy to have been
"selected" to be in his father's
custody . . . he also objected to the
injustice.
[7] In her testimony Muguette Nadeau, an appeals officer,
maintained that she took her decision in accordance with the
factors laid down in s. 6302 of the Income Tax Regulations
("the Regulations"), which read as follows:
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.
[8] Ms. Nadeau said she did not have to take prior
agreements between the spouses into account. She took account of
the fact that the appellant's net income was higher than that
of her husband when she disallowed the working income
supplement.
[9] Furthermore, the money paid by each spouse is not among
the criteria, except for disallowing the working income
supplement as in the instant case where the appellant is
concerned, according to the child tax benefit notice dated
August 20, 1996 sent to the appellant by the respondent.
[10] The respondent filed a group of invoices showing
purchases made for the children (Exhibit I-1).
[11] The appellant maintained that she had not seen the items
supposedly bought for the children that are mentioned in the
invoices in Exhibit I-1.
[12] The appellant's husband is a cabinetmaker. The
appellant is a special education teacher.
[13] The husband did not testify to contradict the
appellant's testimony.
[14] Based on the evidence as a whole the Court considers that
the appellant's appeal should be allowed so that she will not
have to repay the sum of $329.42.
Conclusion
[15] The appeal is allowed.
Guy Tremblay
J.T.C.C.
Québec, Canada,
January 26, 1998.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 5th day of June
1998.
Mario Lagacé, Revisor
Email this Content