Date:
20020531
Docket:
2001-1964-IT-I
BETWEEN:
CATHERINE
LAUDER,
Appellant,
and
HER MAJESTY THE
QUEEN,
Respondent.
Reasons for
Judgment
Bonner,
T.C.J.
[1] This is an appeal from assessment
of income tax for the 1998 taxation year.
[2] The Appellant and Edward Nobles are
the parents of a child born in January, 1996. Initially, in
respect of entitlement to receive the Canada Child Tax Benefit,
the Minister of National Revenue (the "Minister")
recognized the Appellant as the "eligible individual"
in respect of the child within the meaning of section 122.6 of
the Income Tax Act (the
"Act").
[3] On July 7, 1999, the Ontario Court
of Justice issued an order awarding custody of the child to
Edward Nobles and the Appellant jointly and providing that the
child was to have his principal residence with his father. That
led Mr. Nobles to apply for the benefit beginning July
1999.
[4] The Minister reassessed the
Appellant for 1998 base taxation year in respect of eligibility
for the benefit received by her from July 1999 to November 1999.
He took the position that after July 7, 1999 the Appellant ceased
to be an eligible individual in respect of the child.
[5] The Appellant appealed from that
reassessment. The Minister applied to this Court under section
174 of the Act for a determination of the following
question:
"...
who is the eligible individual within the meaning of section
122.6 of the Act and Regulation 6302 of the Income Tax
Regulations (the "Regulations") in
determining the Canada Child Tax Benefit (herein the
"Benefit") payable in relation to the qualified
dependant of Catherine Lauder and Edward Nobles for the period of
time of July 1999 up to, and including, the month of November
1999 (herein the "Period")."
Mr. Nobles
was joined as a party to the appeal pursuant to paragraph
174(3)(b) of the Act.
[6] The applicable statutory definition
of the term "eligible individual" is found in section
122.6 of the Act. It reads in part:
"'eligible individual' - 'eligible
individual' in respect of a qualified dependant at any time
means a person who at that time
(a)
resides with the qualified dependant,
(b) is the
parent of the qualified dependant who primarily fulfils the
responsibility for the care and upbringing of the qualified
dependant,
and for
the purposes of this definition,
...
(h)
prescribed factors shall be considered in determining what
constitutes care and upbringing;"
Section 6302
of the Income Tax Regulations sets out the
"prescribed factors" which paragraph (h) of the
definition requires to be considered:
"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."
[7] The terms of the Court Order of
July 7, 1999 included the following:
"1. The
parties shall have interim interim joint custody of the child,
...
2. The
child shall have his principal residence with his father, the
respondent, Edward Nobles.
3. The
child shall reside with his mother, the applicant, Catherine
Lauder, from after camp to 7 pm on Monday, Tuesday,
Wednesday and Thursday and Saturday, from 9 am to 7 pm
and Sunday 9 am to 7 pm on alternating weekends
commencing July 17, 1999.
4. After
camp, the child may visit his paternal grand-mother at her home
for the period from end of camp until Friday of the Labour Day
Weekend provided that the grand-mother allows the mother
reasonable visits and telephone access.
5. The
child shall reside with the mother on Saturday and Monday of
Labour Day Weekend from 9 am to 7 pm.
6. Once
school starts, the child shall reside with the mother on Monday,
Tuesday, Wednesday and Thursday from 4:30 pm to 7 pm and for
the day on Saturday and Sunday on alternating weekends from 9 am
to 7 pm commencing September 11, 1999."
The Order
also required Mr. Nobles to pay interim spousal support. I note
here that the Appellant states that Mr. Nobles has failed to do
so but that fact is not relevant for present purposes.
[8] Both the Appellant and Mr. Nobles
testified at the hearing of this appeal. The Appellant's
testimony indicated that she was a concerned and caring mother
who made full use of every opportunity afforded to her to see to
the welfare of her child. Those opportunities were however
limited to the periods prescribed by the Court Order and by
Mr. Nobles' inflexible insistence on strict compliance
with the terms of the Order. It is clear that during the period
with which I am concerned the Appellant was relegated to a
secondary role with respect to the care and upbringing of the
child by reason of the time limitations imposed by paragraphs 3
to 6 of the Court Order. The evidence of both witnesses suggests
that the secondary nature of the Appellant's role extended to
all of the factors listed in paragraphs (a) to (g)
of section 6302 of the Regulations. The Court Order
clearly placed the primary responsibility for the care and
upbringing of the child on Edward Nobles and it is clear on the
evidence that he in fact fulfils that responsibility.
[9] There can be only one eligible
individual in relation to a qualified dependant for a particular
period. The question which must be determined pursuant to section
174 of the Act is therefore answered as follows: The
eligible individual is Edward Nobles.
[10]
The Appellant's appeal will therefore be
dismissed.
Signed at
Ottawa, Canada, this 31st day of May 2002.
T.C.J.
COURT FILE
NO.:
2001-1964(IT)I
STYLE OF
CAUSE:
Catherine Lauder and Her Majesty the Queen
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
May 14, 2002
REASONS FOR JUDGMENT
BY: The Honourable Judge M.J. Bonner
DATE OF
JUDGMENT:
May 31, 2002
APPEARANCES:
For the
Appellant:
The Appellant herself
Counsel for the
Respondent: James Rhodes
COUNSEL OF
RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-1964(IT)I
BETWEEN:
CATHERINE
LAUDER,
Appellant,
and
HER MAJESTY THE
QUEEN,
Respondent.
Appeal heard on May 14,
2002 at Toronto, Ontario by
the Honourable Judge
Michael J. Bonner
Appearances
For the
Appellant:
The Appellant
Counsel for the
Respondent:
James Rhodes
JUDGMENT
The appeal from the assessment made under the Income Tax
Act for the 1998 taxation year is dismissed.
Signed at Ottawa, Canada,
this 31st day of May 2002.
T.C.J.
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