Date: 20020624
Docket:
2002-100-IT-I
BETWEEN:
TODD CECIL
WALSH,
Appellant,
and
HER MAJESTY THE
QUEEN,
Respondent.
Reasonsfor
Judgment
O'Connor,
J.T.C.C.
[1]
The Notice of Appeal and the Reply to the Notice of Appeal
succinctly state the main facts as follows:
...
NOTICE OF
APPEAL
TAKE NOTICE THAT Todd Cecil
Walsh, appeals to the Court from the Notification of Confirmation
by the Minister dated October 11, 2001.
A)
I was the eligible individual as defined in the
Income Tax Act under section 122.6 with respect to
Kolby Samuel Walsh born February 6, 1991 and
Hailey Rhiannon Walsh born November 19, 1992 for the period
of July 1, 1998 - July 21, 2000. Furthermore I was an eligible
individual in a shared parenting arrangement for the period
commencing July 22, 2000 - present.
B)
I was the primary caregiver for the period of
July 1, 1998 - July 21, 2000. The
children and I moved out of the matrimonial house on June 30,
1998. They brought all their belongings inclusive of all their
bedroom furniture, clothing and toys. During this time the
children resided with me twelve nights per fortnight while their
mother provided before and after school care and visitation every
second weekend. Clothing requirements were sent with the children
for their visit with their mother every second weekend. I
provided all medical/dental appointments, direct care when the
children were ill, clothing, school requirements, extracurricular
activities and transportation. A shared parenting plan for the
children was implemented on July 22, 2000.
...
REPLY
In
reply to the Appellant's Notice of Appeal with respect to the
Child Tax Benefit Notices dated August 17, 2001, the Deputy
Attorney General of Canada says:
A.
STATEMENT OF FACTS
1.
With respect to the allegations of fact stated in
paragraph A of the Notice of Appeal, he admits that the
Appellant was an eligible individual commencing on July 22,
2000. He denies the balance of the allegations of fact contained
therein.
2.
With respect to the allegations of fact stated in
paragraph B of the Notice of Appeal:
i)
he admits that the Appellant and Kolby and Hailey Walsh (the
"Children") moved from the matrimonial home on or about
June 30, 1998;
ii)
with respect to a shared parenting plan he specifically states
that the Appellant and Kelly Walsh (the "Former
Spouse") entered into a joint guardianship agreement on or
about June 28, 1998 and a further arrangement was
ordered by the Supreme Court of British Columbia on July 20,
2000;
iii)
he denies that the Appellant was the primary caregiver for the
period of July 1, 1998 to July 20, 2000; and
iv)
he has no knowledge of the balance of the allegations contained
therein.
3.
The Appellant filed a Child Tax Benefit ("CTB")
application on October 16, 2000.
4.
The Minister of National Revenue (the "Minister") by
letter dated March 13, 2001 advised the Appellant that the CTB
would be paid to the Appellant for a six month period commencing
March 2001 and then alternately to the Former Spouse for another
six month period. The Appellant was further advised that the
Former Spouse had already received the CTB payments for the
Children and no retroactive CTB payments would be paid to the
Appellant.
5.
The Minister by Notifications for the 1998 and 1999 base years,
dated August 17, 2001 determined that the Appellant was not the
primary caregiver for CTB purposes for the Children.
6.
In so determining the Appellant's eligibility for the CTB for
the Children, the Minister relied on the following assumptions of
fact:
a)
the Appellant and his Former Spouse are the parents of the
Children;
b)
the Appellant and his Former Spouse separated on or about June
30, 1998;
c)
the Appellant and his Former Spouse entered into a joint
guardianship agreement dated June 28, 1998 (the
"Agreement") with respect to the Children;
d)
the Agreement specified that the Former Spouse would have custody
of the Children from 7:30 a.m. to 6:30 p.m. Monday through
to Friday and on alternate weekends;
e)
the Agreement specified that the Appellant had custody of the
Children from 6:30 p.m. to 7:30 a.m. Monday through to
Friday and on alternate weekends;
f)
the Agreement specified that the Appellant and his Former Spouse
shared access to the Children on and [sic] equal number of
statutory holidays, vacations and in other areas as they
arose;
g)
by order of the Supreme Court of British Columbia dated July 20,
2000 (the "Order") the Children were to continue going
to the Former Spouse's home as per the Agreement and, in
addition, the Children were to spend two evenings on one week and
one evening on the other week plus alternate weekends with the
Former Spouse;
h)
the Former Spouse was the primary caregiver of the Children for
the period from July 1, 1998 to July 20, 2000; and
i)
the Former Spouse was the eligible caregiver who received the CTB
for the Children for the period from July 1, 1998 to July 20,
2000.
...
[2]
It is obvious that for the period July 1, 1998 to July 20, 2000
the Appellant considers that he was the primary caregiver for
purposes of being entitled to the Child Tax Benefit. On the other
hand, counsel for the Respondent called the former spouse as a
witness and her testimony was at variance with that of the
Appellant. She considered she was the primary caregiver during
the period in question.
[3]
It should be observed that so long as the shared parenting plan
for the Children which was implemented on July 22, 2000 remains
in effect, there will be no further disagreement as the parties
have agreed on how to divide the Child Tax Benefit. Thus
there is a relatively short period in dispute and a relatively
small amount of monies involved.
[4]
This appeal is quite similar to Matte v. Canada,
[2001] T.C.J. No. 886 where Rowe D.T.C.J. relied on another
similar case Piorkowski v. The Queen, [2000] 2 C.T.C.
2308. In Pirokowski, Dussault, T.C.J. stated at page 2 as
follows:
28.
I am faced here with two parties, the mother of the children on
the one hand and their father (and his new spouse) on the other,
who undoubtedly did their best to give their utmost attention to
the care of the children and to be involved in the upbringing in
a difficult joint custody situation. Each provided attention,
each participated, and each got involved in his or her own way
and according to his or her own means.
29.
Where the evidence taken as a whole does not really tip the
scales one way or another in any significant manner, one would
want to find a solution that would be in line with the wish of
the parties to share the custody of their children on an equal
basis, which is what was essentially agreed to and adhered to in
the present case.
30.
Unfortunately, except where there is an agreement between the
interested parties to share the child tax benefit on a six-month
rotational basis, an arrangement accepted as an administrative
practice by Revenue Canada, it is not possible to divide the
benefit between the parents as was decided by the Federal Court
of Appeal in R. v. Marshall, [1996] 2 C.T.C. 92.
On the facts in
Piorkowski, Dussault, T.C.J. found that:
31.
In light of the factors to be considered, which was based on
care, attention, participation and involvement, and in view of
the evidence adduced in the present case, I must conclude that
the appellant has brought insufficient evidence to demonstrate,
on a balance of probabilities, that she has satisfied the
condition set out in paragraph (b) of the definition of
'eligible individual' in section 122.6 of the Act, namely
that she was, during the periods of issue, the parent who
primarily fulfilled the responsibility for the care and
upbringing of the two children.
[5]
Considerable testimony and evidence was entered by both parents
as to their contributions in feeding, education, caring for,
medically and otherwise, entertaining, taking to various
activities, reading and general care exercised obviously
assiduously by both parents. Attempts were made to even calculate
how many hours per week or other time period a given child or
children was with each parent. It is definitely clear that both
parents contributed significantly but I am left with the task of
picking one or the other as being the primary caregiver during
the period in question. A representative of the Canada Customs
and Revenue Agency ("CCRA") made a determination based
on a questionnaire that it was the former spouse who was entitled
to the Child Tax Benefit. That questionnaire considers many
factors, especially those set out in Income Tax Regulation
6302. It reads as follows:
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 hygenic 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.
[6]
Considering all the evidence, I have not been convinced that the
decision of CCRA was incorrect. Consequently, I find that the
former spouse was the eligible individual for the period in
question and consequently the appeal is dismissed.
Signed at
Ottawa, Canada this 24th day of June, 2002.
"T, O'Connor"
J.T.C.C.
COURT FILE
NO.:
2002-100(IT)I
STYLE OF
CAUSE:
Todd Cecil Walsh v. The Queen
PLACE OF
HEARING:
Vancouver, British Columbia
DATE OF
HEARING:
June 5, 2002
REASONS FOR JUDGMENT
BY: The Honourable Judge Terrence
O'Connor
DATE OF
JUDGMENT:
June 24, 2002
APPEARANCES:
For the
Appellant:
The Appellant himself
Counsel for the
Respondent:
Nadine Taylor
COUNSEL OF RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2002-100(IT)I
BETWEEN:
TODD CECIL WALSH,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on June 5, 2002 at Vancouver,
British Columbia, by
the Honourable Judge Terrence
O'Connor
Appearances
Counsel for the
Appellant:
The Appellant himself
Counsel for the
Respondent:
Nadine Taylor
JUDGMENT
The appeal from the Notification of Confirmation of the Minister
of National Revenue respecting the Child Tax Benefit for the
Appellant's two children for the period of July 1, 1998 to
July 20, 2000, is dismissed in accordance with the attached
Reasons for Judgment.
Signed at Ottawa, Canada, this 24th day of June,
2002.
J.T.C.C.
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