Citation:
2011 TCC 467
Date: 20111003
Docket: 2009-3242(IT)I
BETWEEN:
LAWRENCE DOSTIE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Jorré J.
Introduction
[1]
The issue in this
appeal is a question of fact: whether the appellant’s two sons started to
reside with him on June 23, 2008, and July 1, 2008, respectively, as
claimed by the appellant or on September 1, 2008, as claimed by the respondent.
[2]
The answer to this
question will impact the amounts of the Canada Child Tax Benefit (CCTB) and the
National Child Benefit Supplement (NCBS), to which the appellant is entitled.
[3]
This is a question of
fact.
[4]
The appellant; his two
sons; the Canada Revenue Agency (CRA) Appeals Officer, Jean-Marc Jacob; and the
children’s mother, Mélanie Martine Beaudoin, testified.
[5]
The only requirement at
issue with respect to the CCTB is that found in paragraph (a) of
the definition of “eligible individual” in section 122.6 of the Income Tax
Act (ITA). That provision reads as follows:
“eligible individual” in respect of a qualified dependant at any
time means a person who at that time
(a) resides with the qualified dependant,
. . .
[6]
Based on the formula in
subsection 122.61(1) of the ITA, the “eligible individual” must reside
with the dependant at the beginning of the month. Accordingly, regardless of
what I find, the appellant cannot be the eligible individual for June. The
discussion is therefore limited to the months of July and August 2008.
[7]
On July 27, 2005, and
August 2, 2005, the appellant and Ms. Beaudoin signed a consent to
judgment, which was confirmed by the Superior Court. Under that consent, Ms.
Beaudoin had custody of the two children. The agreement also contained
provisions granting access rights to the appellant.
[8]
The two sons are twins.
[9]
During summer vacation,
the children’s time was divided between the two parents.
[10]
In 2008, the twins were
14 years old.
[11]
At the beginning of
June 2008, the children resided in Longueuil with their mother.
[12]
On August 19, 2008, the
parents signed a new consent to judgment giving custody of the children to the
appellant starting on September 1, 2008.
That consent was also confirmed by the Superior Court and provided access
rights to the mother.
[13]
When the parties signed
that agreement on August 19, 2008, they were both in a difficult situation: the
appellant was receiving employment insurance, and the mother was receiving
social assistance.
Appellant’s testimony
[14]
In June 2008, the
appellant lived at his sister’s house in Laval.
[15]
According to the
appellant, on June 23, 2008, after the end of the school year, the children’s
mother came to his sister’s house. She allegedly told the appellant that, if he
wanted custody of the two children, she would agree to it.
[16]
In cross-examination, when
the appellant was asked if it was possible that the twins merely came to spend
three weeks of vacation with their father, he answered categorically that the
mother wanted him to have custody of the children.
[17]
He had wanted custody
of his sons for a long time and he said yes right away.
[18]
At the same time, the
mother apparently asked the appellant not to claim child benefits for a month,
and the appellant agreed. The mother allegedly told him that she was having
financial difficulties, and he agreed to help her out.
[19]
After the first month,
the mother apparently asked the appellant to let her receive child benefits for
another month. The appellant did not agree.
[20]
One of the sons stayed
with him starting on June 23. The other son returned to his mother for about a
week because he was taking part in a basketball tournament. He moved in with
the appellant on July 1, 2008.
[21]
The appellant started
looking for an apartment and rented one out in Laval starting on August 1,
2008. In August 2008, he moved into his new apartment with his sons.
[22]
According to the
father, at different times, each of the children spent about a week with their
mother during the period from the beginning of July to the end of August 2008.
[23]
The appellant testified
that he agreed that the consent would indicate September 1, 2008, as the change-of-custody
date because he was afraid that the mother would change her mind.
[24]
The two parties filed
in evidence letters and other written documents from neighbours and relatives stating
that the signatories had seen the children during the period in question at one
or the other parent’s residence.
[25]
Since the appeal was
heard under the informal procedure and the appellant represented himself, I allowed
these letters to be filed by the appellant as well as the respondent.
[26]
At the hearing, I
indicated that, given that the people who had signed these documents did not
testify and thus could not be cross-examined, the written statements could have
only a very limited application.
[27]
I am attributing very
little weight to these written statements, which, contradict each other, in any
case, since those obtained by the appellant state that their signatories saw
the children with the appellant and those obtained by the mother state that their
signatories saw the children with their mother.
[28]
As for the statements
signed by the sons,
I will not take them into account. The two children testified, and it is that
testimony on which I will rely.
[29]
I will note also that
Exhibit A-3 contains a letter from the Régie des rentes du Québec (RRQ), which
was sent to the appellant on July 31, 2009, to inform him that, with respect to
child support payments, the RRQ had concluded that the twins lived with the
appellant from June 23, 2008, and from July 1, 2008, respectively. I am not
bound by that decision, and I do not take into account.
The sons’ testimony
[30]
The testimony of the
two sons was at times confused regarding the year during which they moved.
[31]
The first one testified
that they had asked their mother if they could go live with their father and
that she had given her consent to let them move in with their father.
[32]
The first son also
testified that, when he left on June 23, he had taken enough clothes to spend
about two weeks at his father’s residence.
[33]
The second son also
testified that his mother had agreed to let his bother and him move. He
testified that the move went rather quickly.
[34]
They both stated that
they first went to their aunt’s house, where their father was living, and that,
after that, they moved into their father’s new apartment.
[35]
The second son
testified that they had moved into their father’s apartment in the middle of
the summer.
[36]
As to the move, the
children’s testimony was unclear. I believe this may stem from their confusion of
the time they went to their aunt’s house with the time they moved into their
father’s apartment. It is even possible that there was confusion with the time
that some things were transported from Longueuil to their father’s new
apartment.
Testimony of Jean-Marc Jacob
[37]
Mr. Jacob explained the
reasoning used by the Minister of National Revenue (the Minister) in making his
determination. The Minister relied, among other things, on the documents of the
Longueuil school board, which indicate the children’s date of departure as
being September 2, 2008 (I note that these documents do not indicate the date
when the school board was informed), as well as on a security certificate from
Revenu Québec dated February 18, 2009, according to which the two children were
registered under their mother’s file in July and August 2008.
[38]
He also explained that it
is the CRA’s policy not to take into account documents written by children and
to attribute very limited value to neighbours’ testimony.
The mother’s testimony
[39]
The mother testified that
the children, the appellant and she wanted the change in custody. Everyone
agreed that the change would be good for everyone.
[40]
According to the
mother, the children moved on August 29, 2008.
[41]
Also according to her,
it was planned that the children would spend half of their summer vacation with
their father, but, in reality, they only spent three weeks with their father.
[42]
Those three weeks were
allegedly a vacation and not a move. Those weeks were when the father lived
with his sister, before he got an apartment at the beginning of August 2008.
[43]
After that vacation
period, the children returned to their mother before moving on August 29.
[44]
The mother denied that
there had been negotiations with the father about who was going to receive
child benefits.
[45]
The respondent filed a
letter dated February 26, 2009,
written by the dentist, stating that the address that appeared in his records
for the twins was that of their mother in Longueuil.
[46]
At question 195 of the
transcript, the following question and answer appear:
[Translation]
Q. Ok. So in the summer of 2008, were there any medical appointments or
things like that?
A. Of course, we went to the dentist. I took the children to
the dentist. As for medical appointments, it was more that. I also sent the evidence
to the pharmacy. So you also have it in your possession. I went to get all of
the medications that the children could have for August twenty-fifth (25) so
that he and the children could have extra because they take puffers for asthma.
So I made sure that it was done before the children officially moved in with
their father.
Assessment of the evidence
[47]
Everyone agrees that
the children wanted to move and that the father wanted custody. Everyone also
agrees that, in the middle of 2008, the mother agreed to give custody to the
father.
[48]
There is no doubt that
the children spent at least three weeks with the father.
[49]
The consent to judgment
dated August 19, 2008, is a written document signed by both parties. The scope
of the consent is very broad.
[50]
However, in family issues,
especially where custody is concerned, facts often change faster than
agreements between parties and court orders can follow; these facts can at
times be very imprecise.
[51]
The children were 14
years old. When children are 14, regardless of court orders, their wishes with respect
to where they want to live have a big impact on parents’ decisions.
[52]
I accept a great deal –
but not all – of the appellant’s and the mother’s evidence.
[53]
The children’s
testimony was at times vague, but it is clear from the children’s evidence that
they had moved in the summer. Their testimony is not specific with respect to
the exact time when the move took place.
[54]
The first son stated
very clearly that he had arrived at his father’s house with enough clothes for
two weeks. This corresponds more to a visit than to a change of residence.
[55]
I accept that there had
been a discussion between the parents around the end of June in order to agree
on a change of residence for the children.
[56]
I also accept that
there was an unofficial move to the father’s residence at the beginning of August.
Furthermore, I believe that this is implicit in the mother’s response to
question 195: [Translation] “So I
made sure that it was done before the children officially moved in with their
father”.
[57]
However, I find that
the children’s arrival at the end of June and at the beginning of July was only
a visit, which was normally supposed to take place during summer vacation in
accordance with the 2005 consent to judgment. At the beginning of July, there
had still not been a change in residence.
[58]
At the beginning of August,
the children started to reside with the father. The father was thus the
eligible individual in August 2008, but not in July 2008.
Conclusion
[59]
Accordingly, the appeal
from the determination made by the Minister on April 20, 2009, is allowed, and
the matter will be referred back to the Minister for reconsideration and
redetermination on the basis that the appellant’s children started to reside
with the appellant on August 1, 2008.
[60]
Without costs.
Signed at Ottawa, Ontario, on this 3rd day of October
2011.
“Gaston Jorré”
on this 15th day
of November 2011
Margarita
Gorbounova, Translator
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