Docket: 2010-130(IT)I
BETWEEN:
PIERRE DEMERS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the
appeal of Lorraine Dubuc (2010‑134(IT)I), on December 13,
2010, at Sherbrooke, Quebec.
Before: The
Honourable Justice Robert J. Hogan
Appearances:
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For the appellant:
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The appellant himself
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|
|
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Counsel for the respondent:
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Christina Ham
|
____________________________________________________________________
JUDGMENT
The appeal under the Income Tax Act
from the redeterminations made by the Minister of National Revenue with respect
to the Canada Child Tax Benefit for the 2005, 2006, 2007 base taxation years is
allowed, without costs, and this matter is referred back to the Minister of
National Revenue for reconsideration and redetermination in accordance with the
attached Reasons for Judgment.
Signed at Ottawa, Canada, this 16th day of
February 2011.
"Robert J. Hogan"
Translation
certified true
on this 24th day
of March 2011
Monica F.
Chamberlain, Reviser
Citation: 2011 TCC 54
Date: 20110216
Docket: 2010-130(IT)I
BETWEEN:
PIERRE DEMERS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Hogan, J.
I. Introduction
[1]
This is an appeal of
redeterminations made by the Minister of National Revenue (the Minister)
according to which the appellant was not an "eligible individual"
within the meaning of section 122.6 of the Income Tax Act (the Act) with
respect to the Canada Child Tax Benefit (CCTB) claimed by the appellant with
respect to his daughter (the child) for the 2005, 2006, and 2007 base taxation
years.
[2]
Lorraine Dubuc,
the child's mother, also claimed the CCTB with respect to this child. Her claim
was also refused and the two appeals were heard on common evidence.
II. Summary of the Facts
[3]
By notice of
redeterminations dated June 19, 2009, the Minister revised the appellant's CCTB
and determined that he had received overpayments of $165.47, $510.55 and
$432.82 respectively for the 2005, 2006 and 2007 base taxation years. The
Minister claims to have based his redeterminations on the following facts:
(a)
The appellant and his
ex-partner, Lorraine Dubuc, have lived separately since January 17, 2007;
(b)
They had a daughter
together in August 1991;
(c)
In July 2008, the
appellant claimed the CCTB further to a judgment specifying that he had had
custody of the child from January 17, 2007;
(d)
In August 2008, the
Minister sent the appellant and Ms. Dubuc a questionnaire to determine the
parent eligible to receive the CCTB for the period beginning January 17, 2007;
(e)
On November 20, 2008,
the Minister determined that the appellant was the person eligible to receive
the CCTB for the period from January 2007 to June 2007 for the 2005 base
taxation year and from July 2007 to January 2008 for the 2006 base taxation
year;
(f)
For the period
beginning April 2008, the Minister determined that the child lived alternately
with the appellant and with Ms. Dubuc and that each participated equally in the
child's care;
(g)
As a result, from May
2008, eligibility was divided between the two parents and alternated every six
months;
(h)
The appellant was
eligible to receive the CCTB from November 2008 to April 2009 for the 2007 base
taxation year;
(i)
Following this
decision, Ms. Dubuc informed the Minister that, in fact the child lived with
her three-quarters of the time and that she paid for the child's clothing and
school fees;
(j)
On June 19, 2009, the
Minister determined that neither parent would be eligible to receive the CCTB.
[4]
Ms. Dubuc gave evidence
that she left the family residence where she lived with the appellant and the
child at the beginning of 2007 following the end of her relationship with the
appellant. Ms. Dubuc explained that she rented an apartment near the family
residence where she went to live with her elder daughter. She admitted that
during the 2007 taxation year the child lived exclusively with the appellant.
[5]
Ms. Dubuc claims that
the she had exclusive custody of the child from January 2008. She acknowledges
that, following a judgment of the Superior Court of Quebec, she should have had
shared custody of the child beginning in April 2008. Notwithstanding this
judgment, Ms. Dubuc claims that the child lived exclusively with her. She did,
however, acknowledge that the child might have stayed with friends on a few
occasions.
[6]
The appellant maintains
that he had exclusive custody of the child during the 2007 taxation year. He appears
to admit that Ms. Dubuc had custody of the child between January and October
2008, but maintains that custody was shared from April 2008. The appellant
claims that he was the parent mainly responsible for the child's education and
medical care during the entire period in dispute. The appellant claims that he
was the contact for the child's secondary school and that he helped with her
homework.
III. Issue
[7]
The issue is whether
the Minister correctly revised the appellant's CCTB in determining that the overpayments
received were $165.47 for the 2005 base taxation year, $510.55 for the 2006
base taxation year and $432.82 for the 2007 base taxation year.
IV. Analysis
[8]
The definition of the
term "eligible individual" in section 122.6 of the Income Tax Act,
R.S.C. 1985, c.1 (5th Supp.) and its amendments, was for the relevant period
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,
(b) is
the parent of the qualified dependant who primarily fulfils the responsibility
for the care and upbringing of the qualified dependant,
(c) is
resident in Canada or, where the person is the cohabiting spouse or common-law
partner of a person who is deemed under subsection 250(1) to be resident in
Canada throughout the taxation year that includes that time, was resident in
Canada in any preceding taxation year,
(d) is
not described in paragraph 149(1)(a) or 149(1)(b), and
(e) is,
or whose cohabiting spouse or common-law partner is, a Canadian citizen or a
person who
(i) is a
permanent resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act,
(ii) is a
temporary resident within the meaning of the Immigration and Refugee Protection
Act, who was resident in Canada throughout the 18 month period preceding
that time, or
(iii) is a
protected person within the meaning of the Immigration and Refugee
Protection Act,
(iv) was
determined before that time to be a member of a class defined in the Humanitarian
Designated Classes Regulations made under the Immigration Act,
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 122.6 eligible individual (f) does
not apply in prescribed circumstances, and
(h) prescribed factors shall be considered in determining
what constitutes care and upbringing.
[9]
Ms. Dubuc acknowledged
that the child lived exclusively with the appellant during the entire 2007
taxation year. Furthermore, she appeared to corroborate the evidence of the
appellant that she was not able to care for the child during the 2007 taxation
year because of stress caused by the breakdown of her relationship with the
appellant and the death of her parents. As a result, I have no difficulty
finding that the appellant was the individual eligible to receive the CCTB for
the period from January to June 2007 with respect to the 2005 base taxation
year and for the period from July 2007 to January 2008 for the 2006 base
taxation year. Furthermore, notwithstanding the contradictions between the
evidence of Ms. Dubuc and that of the appellant, I find that the child lived
alternately with the appellant and with Ms. Dubuc beginning in April 2008
and that each of them participated equally in the child's care. I therefore
find that the appellant was eligible to receive the CCTB from November 2008 to
April 2009 with respect to the 2007 base taxation year. I would note that this
is the same conclusion reached by the Minister with respect to the appellant's
entitlement to the CCTB for that period.
Signed at Ottawa, Canada, this 16th day of February
2011.
"Robert J. Hogan"
Translation
certified true
on this 24th day
of March 2011
Monica F. Chamberlain, Reviser
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