Citation: 2011 TCC 324
Date: 20110627
Docket: 2010-945(IT)I
BETWEEN:
PATRICIA BARCELOUX,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Bédard J.
[1]
In a notice of redetermination
dated November 20, 2009, with respect to the appellant’s Canada Child Tax
Benefit (CCTB) for the period from July to November 2009, the Minister of
National Revenue (Minister) determined that overpayments in the amount of $4,317.56
were made for the 2008 base year.
[2]
On or about December
21, 2009, the appellant served on the Minister a notice of objection to the
redetermination.
[3]
On March 19, 2010, the
Minister confirmed the redetermination.
[4]
In making and
confirming the redetermination, the Minister relied on the same facts, namely,
the facts set out in paragraph 5 of the Reply to the Notice of Appeal:
[translation]
(a) The appellant is, inter alia, the mother
of four children ("children"), who were born in 1997, 1998, 2003 and
2004.
(b) The appellant and her former spouse, S.B., have
been living separate and apart since June 17, 2009.
(c) In a letter dated November 11, 2009, S.B. notified
the Minister that the children had been living with him since the date of the
separation, but that, since October 1, 2009, he had been sharing custody
of the children with the appellant.
(d)
On November 20, 2009, the Minister determined
that, since June 17, 2009, the appellant was no longer the person who
primarily fulfilled the responsibility for the children's care and upbringing.
(e)
On December 18, 2009, the Superior Court (Family
Division) homologated the agreement between the appellant and her spouse, which
stipulates that the parties have shared custody.
(f)
The agreement also stipulates that the
appellant's former spouse must pay support, solely for the benefit of the
children, effective October 1, 2009.
Preliminary remarks
[5]
Although a few years
have elapsed since the separation, there is still acrimony between the
appellant and Mr. Boisvert, the father of the four children, and that is why I did
not accept everything they said in support of their position on their
eligibility for the CCTB at face value.
The law
[6]
The definition of "eligible individual" in section 122.6 of the Income
Tax Act (Act) read as follows at the time:
"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;
[7]
For the purposes of paragraphs (g) and (h) of the definition
of "eligible individual" in section 122.6 of the Act, sections
6301 and 6302 of Part LXIII of the Income Tax Regulations (the
Regulations) provide the following:
NON-APPLICATION OF PRESUMPTION
6301. (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.
(2) For greater certainty, a
person who files a notice referred to in paragraph (1)(b), (c)
or (d) includes a person who is not required under
subsection 122.62(3) of the Act to file such a notice.
FACTORS
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.
[8]
What concerns us here
is the condition in paragraph (a) of the definition of "eligible
individual", namely, that the qualified dependant must reside with the
eligible individual; and the condition in paragraph (b) of the
definition, namely, that the eligible individual must be the parent who
primarily fulfils the responsibility for the care and upbringing of the
qualified dependant, having regard to the factors set out in section 6302
of the Regulations.
Analysis and conclusion
[9]
Paragraph (a) of
the definition of "eligible individual" in section 122.6 of the Act
requires that the "eligible individual" reside with the qualified dependant.
Therefore, the residence criterion is an essential element in order to obtain the
CCTB. In my opinion, the expression "resides with" in the definition of
"eligible individual" in section 122.6 of the Act means
"lives in the same house" habitually. Thus, the first question that I
must answer is as follows: Did the appellant habitually live in the same house
as the four children during the period in question? I note that the onus was on
the appellant to show me, on a balance of probabilities, that this was the case
during the periods in question. The appellant's evidence in this regard relied
on her testimony, which was supported by the testimony of Suzanne Roy (a bus
driver), André Blais (a bus driver), Denise Abraham (a neighbour of the
appellant), Suzanne Ménard (a neighbour of the appellant) and Sonia Barceloux
(the appellant's sister). The testimony of the appellant, and of the
individuals who testified in support of her position, can be summarized as
follows: during the periods in question, the four children habitually lived
with the appellant in her apartment. In fact, the appellant explained that she
and Mr. Boisvert had shared custody of the four children (custody on
alternating weeks, with the exception of August 11 to
August 31, 2009, when she was on vacation in Europe).
This evidence adduced by the appellant was contradicted by the testimony of Stéphane
Boisvert (the father of the four children), Mélissa Boisvert (the adult
daughter of the appellant and Mr. Boisvert) and Lyne Moreau (the common-law
partner of Mr. Boisvert's brother), who essentially testified as follows:
(i)
Mr. Boisvert had sole
custody of the children from June 17, 2009, to the end of September
2009. In this regard, it should be noted that Mr. Boisvert specified
that the four children stayed with their mother for 12 days at the most during
this period, all of which were on weekends.
(ii)
Mr. Boisvert and the
appellant had shared custody of their four children in October 2009. (Each had
custody on alternating weeks.)
[10]
The appellant, who bore
the burden of proof, has satisfied me that she habitually lived with her four
children in her apartment during the period in issue. In the case at bar,
I had to choose between two conflicting versions of the facts. I have
accepted the appellant's version of the facts rather than Mr. Boisvert's
version, because the only independent witnesses, namely André Blais,
Suzanne Roy, Denise Abraham and Suzanne Ménard, witnesses whom, I
might add, I found very credible, supported the appellant's version of the
facts and, to some extent, contradicted Mr. Boisvert's version. Another
reason why I accepted the appellant's version of the facts instead of
Mr. Boisvert's is that, in a child custody and support agreement (Exhibit
A‑6, paragraph 20) signed on January 13, 2011, and confirmed
by the Superior Court of Quebec, Mr. Boisvert stated that custody during the
period in issue was shared. The paragraph reads:
[translation]
The parties acknowledge that custody of their four minor children
for consecutive seven-day periods from July 12, 2009, to November 26, 2009, was
shared.
[11]
Mr. Boisvert testified
that the appellant had to some extent forced him to recognize, in writing, a
situation that did not reflect reality. He explained that the appellant had threatened
not to sign the agreement which, among other things, gave the two parties
shared custody of the four children (each party having custody on alternating
weeks), and to apply for sole custody of the four children in court. In other
words, Mr. Boisvert allegedly recognized, in writing, a situation that he
knew not to be consistent with reality because he did not want to run the risk
that the court might take shared custody of the four children away from him.
His explanations in this regard were simply not persuasive. Accordingly, as to
paragraph (a) of the definition of "eligible individual" in
section 122.6 of the Act, I find that the four children habitually lived
in their mother's residence during the period in issue.
[12]
We now turn to the
condition set out in paragraph (b) of the definition of "eligible individual":
the parent of the qualified dependant must be the parent who primarily fulfils
the responsibility for the care and upbringing of the dependant, and the
factors set out in section 6302 of the Regulations must be taken into
account in this regard. We will therefore consider the evidence in light of the
factors in section 6302 of the Regulations.
The factors in paragraphs (a), (b) and (g)
of section 6302 of the Regulations
[13]
The evidence discloses
that both parents supervised the daily activities of their children in
substantially the same way, and saw to the children's daily needs when the
children were in their custody. Both parents also showed that they maintained a secure
environment; each had an appropriate residence. The fact that
Mr. Boisvert's single-family home is larger and more luxurious should not,
in my view, be taken into account.
Educational activities
[14]
With respect to this
factor, the appellant merely explained that she helped the four children with
their homework. The appellant also tried to criticize Mr. Boisvert for
failing to ensure that the four children did their homework. However, the
evidence showed that Mr. Boisvert was the only one who paid the children's
school and extracurricular expenses (enrolment fees and cafeteria expenses). It
should be noted that only Mr. Boisvert adduced documentary evidence in support
of his testimony in this regard (see Exhibits I‑4 and I‑5).
The children's health
[15]
At most, the
appellant's evidence in this regard discloses that she had the glasses of one
of the children repaired, and purchased medication for the skin problems of one
of her daughters. The appellant's focus was on asserting that Mr. Boisvert
neglected the four children's hygienic needs when they were in his care. However,
Mr. Boisvert is the only person who adduced documentary evidence (see Exhibit
I-3) showing that medical care had been obtained for the four children. I should
emphasize that the weight given to this factor in relation to the others must
not be overstated, since the evidence shows that the four children needed very
little medical care during the period in issue.
Recreational, athletic or similar activities
[16]
There was little to the
appellant's evidence in this regard. She apparently sometimes attended soccer
games in which her four children participated. However, Mr. Boisvert
explained that he not only attended all the soccer games in which his children
participated, but also participated in them as a player. Mr. Boisvert added
that he went on many outings with the children (including a trip to Old Orchard
from August 23 to August 26, and a five-day trip to Montpellier, Quebec, during the third week of July). In fact, Mr. Boisvert
submitted documentary evidence (Exhibits I‑1 and I‑2) in
support of his testimony concerning his outings with his four children.
Conclusion
[17]
It is clear that both
parties before me — the
appellant and Mr. Boisvert —
did their best to give the most attention possible to the children whose
custody they shared, and to look after the children's care and upbringing in a
generally difficult situation. Each looked after the children in their own way
based on their own values and on what they could afford financially. Each took
part in the children's activities and played their role based on their own
means.
[18]
Where the evidence as a
whole does not clearly tilt the balance in favour of either party, one would
wish to allocate the CCTB equally between the parties. Unfortunately, unless
the parties agree to share the CCTB on a quarterly basis — a solution that the Canada Revenue Agency
accepts under the terms of its administrative practices — the benefit cannot be split: Canada v.
Marshall, [1996] F.C.J. No. 431 (QL) (F.C.A.).
[19]
Given the factors based
on care, attention and participation that must be taken into consideration, and
given the evidence submitted in the case at bar, I must conclude that the
appellant has not met her obligation of showing, on a balance of probabilities,
that she met the condition set out in paragraph (b) of the definition of
"eligible individual" in section 122.6 of the Act, namely, that,
during the period in issue, she was the person who primarily fulfilled
the responsibility for the children's care and upbringing.
[20]
The appellant should
understand that in making such a decision, I am not finding that she was a bad
person or that she did not fulfil her responsibilities for the children's care
and upbringing during the period in issue.
Signed at Ottawa, Canada, this 27th day of June 2011.
"Paul Bédard"
Translation
certified true
on this 17th day
of August 2011
Susan Deichert, Reviser
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