Citation: 2011TCC455
Date: 20110927
Docket: 2011-1262(IT)I
BETWEEN:
JOANN PEARSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
V.A. Miller J.
[1]
The issue in this
appeal is whether the Appellant is the “eligible individual” within the meaning
of section 122.6 of the Income Tax Act (the “Act”) to receive the
Canada Child Tax Benefit (“CCTB”) and the Universal Child Care Benefit (“UCCB”)
for various months in 2009 and 2010.
[2]
The Appellant and her
former spouse, Anita Furlan, separated in November 2007. They are the parents
of two children, T born in 2002 and E born in 2006.
[3]
In a Judgment dated
October 28, 2010, Chief Justice Rip decided that Ms. Furlan was the eligible
individual in respect of the CCTB and the UCCB for the two children for the
following periods:
July 2008 June
2009
November 2008 July
2009
January 2009 (T only) August
2009
February 2009 (T only) December
2009
March 2009 January
2010
[4]
The Appellant’s
eligibility for the CCTB and the UCCB were redetermined on the basis of the
Chief Justice’s decision and it is this redetermination which is the subject of
this appeal. It is the Appellant’s position that she was the eligible
individual for the two children in:
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January 2009
|
December 2009
|
|
February 2009
|
January 2010
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March 2009
|
|
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June 2009
|
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Motion to Dismiss
[5]
The Respondent has
brought a motion to dismiss the Appellant’s appeal on the basis that it is an
abuse of process. The grounds for the motion are:
a) The issue has
already been decided by this court and to relitigate the same factual
circumstances is an abuse of process and a waste of judicial resources.
b)
The Appellant did not
seek to intervene when the issue was initially heard by the Court; and,
c) The Appellant cannot
now ask the Court to hear the matter over again.
[6]
I disagree with the
Respondent and the motion is dismissed for the reasons which follow.
[7]
The doctrine of abuse
of process is flexible. It originates from the inherent jurisdiction of the
court to control its own process and ensure the integrity of the judicial
system[1].
[8]
In Toronto (City) v.
Canadian Union of Public Employees (C.U.P.E.) Local 79[2], Justice Arbour explained that the focus
of the doctrine of abuse of process is to preserve the integrity of the
judicial system in order to avoid inconsistent results.
[9]
In C.U.P.E.,
Justice Arbour gave situations when it would not be an abuse of process to
relitigate a matter. At paragraph 52, she stated:
52
In
contrast, proper review by way of appeal increases confidence in the ultimate
result and affirms both the authority of the process as well as the finality of
the result. It is therefore apparent that from the system’s point of
view, relitigation carries serious detrimental effects and should be avoided
unless the circumstances dictate that relitigation is in fact necessary to
enhance the credibility and the effectiveness of the adjudicative process as a
whole. There may be instances where relitigation will enhance, rather
than impeach, the integrity of the judicial system, for example: (1) when the
first proceeding is tainted by fraud or dishonesty; (2) when fresh, new
evidence, previously unavailable, conclusively impeaches the original results;
or (3) when fairness dictates that the original result should not be binding in
the new context. This was stated unequivocally by this Court in Danyluk,
supra, at para. 80.
[10]
In the present appeal,
fairness dictates that the original result should not be binding on the
Appellant. First, in filing her Notice of Appeal and litigating the
determinations issued against her, the Appellant is exercising her right to
appeal in accordance with section 169 of the Act. Second, although she
was a witness at the hearing of Ms. Furlan’s appeal, the Appellant was
misinformed by the Respondent as to the number of months at issue in Ms.
Furlan’s appeal. She was told that there were only four months at issue and she
brought documents for these four months; whereas, the period at issue in Ms.
Furlan’s appeal was two and one-half years.
[11]
Finally, the Minister
could have ensured that both parents were bound by the same judgment. In situations
such as the present, it is appropriate and desirable that the Minister join the
parties pursuant to section 174 of the Act to ensure consistency and
finality in the results. I agree with the comments made by Sheridan J. in Streitenberger
v. R.[3]
at paragraph 3 where she stated:
3 As is evident from the
assumption in paragraph 16(t) of the Reply to the Notice of Appeal, this is the
second time the Court has considered whether the Appellant or his ex-spouse,
Sandra Scott, is entitled to the CTB for much of the same period. In the Scott
appeal, Margeson, J., without giving reasons, held that Ms. Scott was entitled
to the CTB and the Minister redetermined the Appellant's entitlement
accordingly. It is from that redetermination that the Appellant now appeals. In
these circumstances, it seems to me that it would have been appropriate
(indeed, desirable) for the Minister to have sought, under section 174 of the Income
Tax Act, to join the Appellant as a party to Ms. Scott's appeal.1
Had this been done, two unfortunate results could have been avoided: the family
would not have had to go through judicial proceedings a second time in respect
of the same period on the same issue, and the Court would not have been put in
the embarrassing position of hearing what is, in effect, a kind of appeal of
the decision in the first proceeding.
CCTB and UCCB
[12]
The only question to be
determined is, during each of the months at issue, which parent primarily
fulfilled the responsibility for the care and upbringing of the children.
[13]
Both parents kept
detail accounts of the time they each spent with their children. Although Ms.
Furlan calculated the time on a per diem basis and Ms. Pearson
calculated the time on an hourly basis, there were only minor differences in
their calculations. For the most part, those differences depend on whether I
find that the children were in the Appellant’s care while they were at school
during a time that they were resident with Ms. Furlan.
[14]
Paragraph 6 of the
Order issued by the Supreme Court of British Columbia on August 19, 2009 reads:
6. On the days of the week in which the children reside with the
Plaintiff, but the Plaintiff is unable to personally care for them, the
Defendant will have access on the following basis:
a.
The Defendant will pick up the children at 7:30
a.m. on each of those mornings, and they will be in her care until 4:30, at
which time they may be picked up by the Plaintiff or someone designated by the
Plaintiff.
b.
If the Defendant is unable to fulfill these
access arrangements for the care of the children she will give one week’s
notice so that the Plaintiff can make alternative arrangements.
[15]
It was the Appellant’s
position that T was “in her care” when T was in school during the periods when
the circumstances of paragraph 6 applied. Further, it was her position that the
circumstances of paragraph 6 applied prior to and subsequent to the date of the
Order.
[16]
I agree with the
Appellant that in the circumstances where paragraph 6 applied, T was in her
care for the month of September and a portion of the month of October 2009.
However, there is nothing in the Separation Agreement dated July 10, 2007 or
the Separation Agreement dated October 29, 2007 which supports the Appellant’s
position that prior to the Order issued on August 19, 2009, T was in her care
when she was in school during a week that she was resident with Ms. Furlan.
Likewise, the Consent Order issued on October 19, 2009 does not support the
Appellant’s position.
[17]
Further, Ms. Furlan
testified that she had instructed the staff at T’s school that she was the
contact person when T was resident with her. Further, she gave the school the
dates that T would be resident with her.
[18]
On a review of all of
the evidence, I find that the Appellant has shown that she primarily fulfilled
the responsibility for the care of the children in January 2010. The appeal is
allowed on the basis that the Appellant is the eligible individual for the
month of January 2010.
Signed at Ottawa, Canada, this 27th day of September 2011.
“V.A. Miller”
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