Docket: 2009-3308(IT)I
BETWEEN:
PATRICIA COUTURE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the
appeal of Sylvie Grenier (2009-2986(IT)I), on March 10, 2010, at Sherbrooke, Quebec.
Before: The Honourable Justice Robert J.
Hogan
Appearances:
|
Counsel for the appellant:
|
Francine Morin
|
|
|
|
|
Counsel for the respondent:
|
Marjolaine Breton
|
____________________________________________________________________
JUDGMENT
The appeal from the redeterminations made
under the Income Tax Act for the 2006 and 2007 base
taxation years is dismissed, without costs, in accordance with the attached
Reasons for Judgment.
Signed at Ottawa, Canada, this 3rd day
of May 2010.
"Robert J.
Hogan"
on this 17th day
of June 2010
Margarita
Gorbounova, Translator
Citation: 2010 TCC 233
Date: 20100503
Docket: 2009-3308(IT)I
BETWEEN:
PATRICIA COUTURE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Hogan J.
INTRODUCTION
[1]
The appellant is
appealing from the redeterminations issued by the Minister of National Revenue
(the Minister), according to which, for the period from June to
November 2008, she was not the "eligible individual" within the
meaning of section 122.6 of the Income Tax Act (ITA), and as a
result, was not entitled to the Canada Child Tax Benefit (CCTB) in respect of
the child P. because she was not P.’s mother. The Minister also determined
that P.’s mother, Sylvie Grenier, was also not entitled to the CCTB for
her son because she did not live with him during the period at issue.
Ms. Grenier, P.'s mother, appealed the Minister's decision, and the two
appeals were heard on common evidence.
[2]
The evidence shows that
the Minister received a CCTB application in respect of P. from the appellant
for the period starting on May 29, 2008. The CCTB Customer Service
granted the benefit starting in June 2008. Then, Ms. Grenier received
a notice of determination indicating that she was no longer entitled to the
CCTB for her son because the benefit was given to the appellant.
Ms. Grenier objected to the Minister's decision, according to which P.
lived with the appellant in July 2008, while the appellant worked part
time in the evening. Ms. Grenier claims that the appellant offered lodging
to her son during the 2008–09 school year in order to allow P. to complete his
fourth year of secondary school at the École secondaire de l’Escale in
Asbestos. According to Ms. Grenier, her son P. had educational
difficulties at his old school in Sherbrooke. According
to her, P. wanted a fresh start at a school in the area where his father lived.
[3]
Ms. Grenier testified that
she had continued to provide for her son’s needs while he lived at the
appellant's home. She testified that she bought clothes and school supplies for
P. at the beginning of the school year. She enrolled P. at the new school in
Asbestos and was considered the contact person according to the school's
records. Mr. Turcotte, P.'s father, corroborated the testimony of his
former spouse, Ms. Grenier. In addition, he added that his son and he often had
lunch together at a local snack bar near the appellant's house. He testified
that he gave P. some spending money for small expenses. He confirmed that
Ms. Grenier and he bought groceries for their son at least twice while he
lived with the appellant. Mr. Turcotte claimed that he gave $80 to the
appellant and performed small services for her in exchange for lodging his son.
He stated that he had installed a fan for the appellant's stove and repaired
her washing machine. He also testified that he had made arrangements to replace
P.'s mother if she could not meet with the school staff when they asked her to.
The documents from the École secondaire de l’Escale filed as Exhibit A-1-G
indicate that P.'s mother had parental authority in respect of P. P.’s 2008–09
report card also indicated that the person responsible for him was his mother.
[4]
P. corroborated his
parents' testimony in regard to the help and support they provided him during
the period at issue.
[5]
The appellant testified
that she had moved to Asbestos in May 2008. She had found a part-time job
at a social club. She took steps to find a babysitter for her 12‑year‑old
son. She met P.'s father in May 2008, and he indicated that his
son P. might want to babysit the appellant's son. According to her, at
first P. babysat her son at her house on weekends at the start of June. During
these visits, he told the appellant that he did not want to return to live with
his mother during the school year. The appellant lost her job at the end of
June. P. continued living at the appellant's house during the summer. About
mid-August 2008, the appellant confirmed to P. that he could stay at her house
during the 2008–09 school year. P. moved his personal effects to the
appellant's house around mid-August 2008 and stayed there until
November 29, 2008, when he returned to his mother's house.
[6]
According to the
appellant, it was Marie-Renée Ruel, a social worker at the Centre de jeunesse
de Plessisville, who suggested that she apply for the CCTB for P. The appellant
states that she does not understand why she is entitled to support from the
provincial government, but not the federal government in regard to providing
lodging to P. According to her, she provided for P.'s needs alone. He lived at
her house during the period in question. P. had a schedule, curfew and bedtime.
The appellant provided lunch to P. According to the appellant, P. very rarely
visited his parents during the period at issue.
ANALYSIS
[7]
The only issue in the
instant case is whether the appellant owes the $1,583.25 that the Minister is
claiming from her relative to the 2006 and 2007 base taxation years.
[8]
The relevant statutory
provisions are sections 122.5, 122.6 and 122.61, as well as subsections 252(1)
and (2) of the ITA.
[9]
In order to be an
"eligible individual" to receive the CCTB, a taxpayer must meet the
following three conditions:
(a) reside with the
qualified dependant,
(b) be the parent of the
qualified dependant, and
(c) primarily fulfill the
responsibility for the care and upbringing of the qualified dependant.
Section 6302 of the Income Tax Regulations sets
out the criteria for determining what constitutes care and upbringing of a
dependant.
[10]
The ITA broadens the
meaning of the word "child" and the word "parent".
[11]
Paragraph 252(1) of the
ITA states that a person who is wholly dependent on the taxpayer for support
and of whom the taxpayer has, in law or in fact, the custody and control is
deemed to be that taxpayer's child. That taxpayer is deemed to be that child's
parent in those circumstances.
[12]
It was admitted that
the appellant is not P.'s mother. Accordingly, for the appellant to be
considered a parent, P. must be wholly dependent on her for support and she
must have had the custody and control of P. in fact. The Nouveau Petit
Robert
defines the French word "entièrement" [entirely] as follows:
[Translation]
adv. — end of 12th c.; from entire
♦ in its entirety. Þ 1. completely, wholly, all (cf. totally*, altogether*). Object
made entirely by hand. Entirely destroyed (cf. from top to
bottom*). Entirely paid capital Þ in
full. She is entirely responsible. They agree
entirely Þ perfectly
(cf. one hundred* percent). “The real is not entirely rational, nor is the
rational entirely real” (Camus). à ANTONYM Imperfectly, incompletely,
partially.
[13]
The English version of
subsection 252(1) uses the word "wholly", which is defined as
follows in the Canadian Oxford Dictionary: "adv. 1 entirely,
completely; without limitation. 2 solely, exclusively. . . ."
[14]
The appellant's counsel
claims that the word "wholly" should be interpreted more liberally
than its literal meaning. She claims that the word must mean
"considerably". She also claims that the context requires a more
liberal interpretation, since otherwise, in the circumstances of the instant
case, no one would be entitled to the CCTB. According to the appellant, P.'s mother
would not be entitled to the CCTB because P. did not live with his mother
during the period at issue.
[15]
I do not agree with the
interpretation offered by the appellant's counsel. Parliament uses the word
"primarily" when the proportion necessary is over 50%. In this
context, the word "wholly" means fully or completely. The evidence
shows that P.'s parents continued to provide support for their son by buying
him clothes, school supplies and food. That support was less significant than
that provided by the appellant. However, the appellant did not demonstrate that
P. was wholly dependent on her.
CONCLUSION
[16]
For these reasons, I
would dismiss the appeal.
Signed at Ottawa, Canada, this
3rd day of May 2010.
"Robert J. Hogan"
Margarita Gorbounova, Translator
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