[OFFICIAL ENGLISH TRANSLATION]
Date: 20020416
Docket: 2000-4513(IT)I
BETWEEN:
MICHÈLE BÉNARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Lamarre Proulx, J.T.C.C.
[1] This appeal, governed by the
informal procedure, concerns the child tax benefit under
section 122.6 of the Income Tax Act (the
"Act"). The point for determination is which of
the two parents, the appellant or Jayson Koshelowsky,
primarily fulfilled the responsibility for the care and
upbringing of their two children, Jayson and Jessica, during the
period from July 1999 to February 2000.
[2] The facts on which the Minister of
National Revenue (the "Minister") relied in making his
assessment are described in paragraph 5 of the Reply to the
Notice of Appeal (the "Reply") as follows:
[TRANSLATION]
(a) the appellant
and Jayson T. Koshelowsky are the parents of the
following chidren:
(i) Jayson,
born on August 31, 1995;
(ii) Jessica, born
on July 30, 1996.
(b) on
February 4, 2000, the appellant informed the Minister that
her children, Jayson and Jessica, had no longer been under her
care since the start of February 2000;
(c) in February
2000, the father, Jayson T. Koshelowsky, filed an
initial child tax benefit application, alleging that he had
obtained legal custody of his children, Jayson and Jessica, and
that he had been the parent who primarily fulfilled the
responsibility for the care and upbringing of his children since
June 28, 1999;
(d) when that
application was processed, it became apparent that, in February
1999, Jayson T. Koshelowsky had become the parent who
primarily fulfilled the responsibility for the care and
upbringing of his children;
(e) the appellant
left the marital home on February 8, 1999;
(f) the
appellant did not inform the Minister that her children, Jayson
and Jessica, had no longer been under her care since her
departure from the marital home on February 8, 1999;
(g) the appellant
returned to live at the marital home on July 17, 1999, until
January 30, 2000;
(h) the Minister
asked the appellant's agent to provide him with proof that
Jayson had been under the appellant's care during the period
from July 1999 to January 2000 as follows:
(i) the first
request by telephone on June 8, 2000,
(ii) the second
request in writing on July 13, 2000;
(i) in a
telephone conversation on July 20, 2000, the appellant's
agent told the Minister that her client could not provide any
proof that she had attended to her child's care and
upbringing;
(j) on
July 24, 2000, the Minister confirmed the notice of Canada
Child Tax Benefit dated March 20, 2000, for the 1998 base
year, determining that the appellant was no longer the person who
had primarily fulfilled the responsibility for the care and
upbringing of her children, Jayson and Jessica, during the period
from July 1999 to February 2000 inclusive.
[3] The appellant admitted
subparagraphs 5(a) to (i) of the Reply.
[4] The appellant testified for the
appellant party, and Jayson Koshelowsky testified for the
respondent party.
[5] The appellant filed as
Exhibit A-1 a judgment by the Court of Quebec dated
July 14, 1999, awarding custody of the two children to their
father. That judgment noted the mother's absence from the
family home since February 1999 and stated that the security and
development of the two children had been compromised. It also
stated, in particular, that the mother had agreed to hand the
children over to the father, at least temporarily until a divorce
had straightened out the situation.
[6] From July 17, 1999, to
January 30, 2000, the appellant returned to live at the
marital home. This is the period involved in determining which
individual is eligible for the child tax benefit.
[7] The appellant began her testimony
by complaining about the violent atmosphere to which her former
spouse had subjected her during their marital life. With respect
to her children, she explained that she had prepared the morning
and evening meals as well as a snack upon their return. The
children were happy to see her again when they returned from the
day care centre, as was she. She bathed the children after
supper. On the days when the children did not go to day care, she
took part in activities with them in the house or yard.
[8] The children's father
explained that he had driven the children to the day care but
that another person sometimes had to do it because his car was in
poor repair. He also said that, if one of the children was ill,
it was he who had taken the child to the doctor's office. He
said he attended to the children a little.
[9] Exhibit A-3 is an
application dated February 23, 2000, for extension of the
order of July 14, 1999. The application was made by the
Director of Youth Protection and stated, in particular, that the
mother had left the home on January 24, 2000, as a result of
a violent act committed by her former spouse.
Exhibit A-4 is the judgment dated December 19,
2000, ordering that the children remain at the father's home.
The judgment took note of the efforts the parents had made to
improve their parental ability.
[10] Exhibit A-5 is the report
dated July 18, 2000, for the Court of Quebec, Youth
Division, prepared by Marielle Plante, a family assistant.
The social monitoring began on November 23, 1999. The
children, Jayson and Jessica, attended a family day care three or
four days a week. The report outlined the problems the parents
had in their relations with their children and stated that the
mother showed a genuine desire to improve and develop better
relations with her children. The father was apparently not
particularly interested by the family assistant's monitoring.
He had trouble understanding the importance that the
children's relationship with their mother had for them.
[11] Exhibit A-6 is a report
prepared by Daniel Charbonneau dated March 29, 2000,
stating that the mother had difficulty in her role supervising
her children and that the father was potentially violent and
occasionally lost control over his drinking.
[12] The relevant portion of the definition
of "eligible individual" in section 122.6 of the
Act reads as follows:
122.6 Definitions - In this subdivision,
"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,
(f) where the
qualified dependant resides with the dependant's female
parent, the parent who primarily fulfils the responsibility for
the care and upbringing of the qualified dependant is presumed to
be the female parent,
(g) the
presumption referred to in paragraph (f) does not
apply in prescribed circumstances, and
(h)
prescribed factors shall be considered in determining what
constitutes care and upbringing.
[13] Subsection 6301(1) of the
Income Tax Regulations (the
"Regulations") reads as follows:
Non-application of presumption - (1) For the purposes of
paragraph (g) of the definition "eligible
individual" in section 122.6 of the Act, the
presumption referred to in paragraph (f) of that
definition does not apply in the circumstances where
(a) the
female parent of the qualified dependant declares in writing to
the Minister that the male parent, with whom she resides, is the
parent of the qualified dependant who primarily fulfils the
responsibility for the care and upbringing of each of the
qualified dependants who reside with both parents;
(b) the
female parent is a qualified dependant of an eligible individual
and each of them files a notice with the Minister under
subsection 122.62(1) of the Act in respect of the
same qualified dependant;
(c) there is
more than one female parent of the qualified dependant who
resides with the qualified dependant and each female parent files
a notice with the Minister under subsection 122.62(1) of the
Act in respect of the qualified dependant; or
(d) more than
one notice is filed with the Minister under
subsection 122.62(1) of the Act in respect of the
same qualified dependant who resides with each of the persons
filing the notices if such persons live at different
locations.
[14] Section 6302 of the
Regulations describes the factors applicable to the notion
of care and upbringing of a child:
Factors - 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.
[15] Paragraph (f) of the
definition of "eligible individual" in
section 122.6 of the Act provides that, where the
qualified dependant lives with his mother, there is a presumption
that the person who primarily fulfils the responsibility for the
care and upbringing of the qualified dependant is the mother.
[16] Is that presumption rebuttable?
Paragraph (g) of the definition of the term
"eligible individual" in section 122.6 of the
Act states that the presumption referred to in
paragraph (f) does not apply in prescribed
circumstances. Subsection 6301(1) of the Regulations
enumerates four circumstances in which the presumption does not
apply. None of paragraphs (a) to (d) of that
provision applies to the circumstances in this case.
[17] It must therefore be determined
whether, apart from the factors stated in subsection
6301(1) of the Regulations, the presumption provided for
in section 122.6 of the Act can be rebutted by other
means.
[18] In Cabot v. Canada, [1998]
T.C.J. No. 725 (Q.L.), Judge Rip had to decide the
same question. In that case, the appellant and his spouse had
separated, and the spouse had agreed that Mr. Cabot would
have custody of the children. In July and August 1994, the
children lived with Mr. Cabot at his mother's home. In
September 1994, Mr. Cabot, his spouse and their children
resumed life together and lived together for two years. From
March to October 1996, Mr. Cabot, having been convicted of a
crime, lived at a halfway house and was in prison in November and
December 1996. Mr. Cabot contended that, from
August 10, 1994, to March 1996, he had had custody of
the children, despite that he and his children had been living
with their mother.
[19] In Cabot, the respondent
contended that the presumption of section 122.6 of the
Act was not rebuttable by factors other than those set out
in subsection 6301(1) of the Regulations. Counsel for
the respondent referred to the maxim, expressio unius
est exclusio alterius, in asserting that, since Parliament
had set out four exceptions to the presumption, the failure to
state another must be considered intentional.
[20] Judge Rip dismissed the
respondent's arguments and held that the presumption under
section 122.6 must be rebuttable within the ordinary meaning
of the statutory and regulatory provisions. If that were not the
case, there would be a risk of granting the child tax benefit to
a parent who did not fulfil the responsibility for the care and
upbringing of the child. Such a result would defeat the purpose
of the benefit.
[21] Thus, given the legislative context of
the presumption under paragraph (f) of the definition
of "eligible individual" in section 122.6 of the
Act and the purpose of the Act, the presumption is
also rebuttable with regard to the factors stated in
section 6302 of the Regulations, which are used to
determine the status of "eligible individual". That
section is quoted in paragraph 14 of these reasons.
[22] First of all, I must say that care must
be taken in granting the status of eligible individual to a
violent spouse claiming to be the person who takes the best care
of his children. Establishing a climate of violence in the family
home does not amount to taking good care of one's children
nor does a failure to facilitate and foster a loving relationship
between the mother and her children. In my view, the evidence
showed that the children's father unfortunately did not
encourage a climate of family harmony.
[23] The Minister's agents based their
decision to a great extent on the fact that the appellant had
left the home on February 8, 1999, and that the father had
taken care of the children until the appellant returned on
July 17 of that year. It is not that period that is in issue
here, and one cannot know why the mother left.
[24] I find that the evidence showed instead
that, during the brief period of time when she was back in the
family home, the appellant put more love and attention each day
into the care and upbringing of the children than the father. I
am not saying that the mother's conduct was perfect. Based on
the reports, she has trouble supervising and guiding her
children. Perhaps she would have done better if she had had the
calm and peaceful support of the children's father. The
situation was not all black and white. It is possible that the
two parents, in their own way, truly wanted what was good for
their children, but I find that in the circumstances of this
case, the appellant was the eligible individual for the purposes
of the child tax benefit during the period in issue.
[25] The appeal is allowed with costs.
Signed at Ottawa, Canada, this 16th day of April 2002.
J.T.C.C.
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