Citation: 2009TCC270
Date: 20090522
Docket: 2008-3229(IT)I
BETWEEN:
CRYSTAL L. MATTHEWS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
V.A. Miller, J.
[1]
The issue in this
appeal was: On what date did the Appellant cease to be the “eligible
individual” to receive the Canada Child Tax Benefit (CCTB) in respect of her
son, David?
[2]
The Minister of
National Revenue (“the Minister”) informed the Appellant by Notice of
Redetermination, dated August 20, 2007 that she was not the eligible individual
in respect of David for the period January 20, 2006 to June 26, 2007. The
Appellant was assessed an amount of $4,124.66 for the recovery of overpayments
of the CCTB.
[3]
The witnesses at the
hearing were the Appellant, Melvin Gerrow and Audrey Spooney.
[4]
In the Notice of Appeal,
the Appellant stated that her son, David lived with her at all times up until
July 2005. I note that David was fifteen at that time as he was born on May 11,
1990.
[5]
At the hearing, the
Appellant explained that she had to call Children’s Aid Society to remove David
from the home as he was physically abusive to her and his siblings. She was not
sure of the date that she called the Children’s Aid Society. She stated that
David later returned home. The Appellant was very confused about the relevant
dates. At one point she stated that her son started to live with Spooney in
August 2005 and then she stated that he started to live with Spooney sometime
in 2006 but she didn’t recall the month.
[6]
It was the Appellant’s
evidence that she gave Spooney the CCTB payments each month and she received a
receipt from Spooney. She also stated that David did not reside full time with
Spooney as he was back and forth between her home and Spooney’s home. She
stopped giving the CCTB payments to Spooney in May 2007.
[7]
Melvin Gerrow is
David’s father and the Appellant’s common law spouse. He testified that David
was back and forth between the two homes. He reviewed the receipts which
Spooney had signed when she received the money from the Appellant, and he
concluded that David did not begin to live with Spooney until April 2006.
[8]
It was Spooney’s
evidence that David was her son’s friend. When she learned that David did not
have a place to live, she agreed that he could live with her family. She
provided him with his own room, with food, clothing and spending money. I infer
from her evidence that she treated David as her son. She agreed that the
Appellant did give her some of the CCTB payments. She testified that she
received no money from the Appellant for January, February, July 2006 and
April, May and June 2007. She stated that David resided with her from January
2006 until a week prior to this hearing.
[9]
In cross-examination,
Spooney stated that she called the Canada Revenue Agency (“CRA”) in June 2007.
She told CRA that the Appellant had given her certain CCTB payments. However,
they also gave her the CCTB payments for January 2006 until June 2007.
[10]
The relevant excerpt
from section 122.6 is 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;
[11]
One of the exhibits filed by the
Appellant was an Affidavit of Ryan Ellis, a Social Worker with The Children’s
Aid Society of Cape Breton-Victoria (“the Society”). The affidavit was prepared
for a court hearing which took place on December 29, 2005 in The Supreme Court
of Nova Scotia (Family Division). A review of this document confirmed that on
February 25, 2005, the Appellant and Melvin Gerrow requested support services
on how to handle their son David. On December 21, 2005, David was taken into
care by the Society.
[12]
The Appellant also tendered as an
exhibit, the receipts that Spooney signed in exchange for the CCTB payments. There
were eleven receipts; some of them had only partial dates on them. The earliest
receipt was dated April 20, 2006.
[13]
The onus was on the Appellant to
prove that the Minister’s assessment was incorrect. This she has not done. The
evidence she placed before me established that she ceased to be the eligible
individual to receive the CCTB for David in January 2006. I have especially
relied on the affidavit of Ryan Ellis. I also accept Spooney’s evidence that
David started to reside with her in January 2006.
[14]
The fact that David may have been
back and forth between the Appellant’s home and Spooney’s home does not mean
that he no longer resided with Spooney. I agree with Justice Bonner’s comments
in S.R. v. The Queen[1]
where he stated:
12]
The word "reside" with as used in the section 122.6
definition of the term "eligible individual" must be construed in a
manner which reflects the purpose of the legislation. That legislation was
intended to implement the child tax benefit. That benefit was introduced in 1993
with a view to providing a single nontaxable monthly payment to the custodial
parent of a child That payment was intended to benefit the child by providing
funds to the parent who primarily fulfilled the responsibility for the care and
upbringing of the child The threshold test is whether the child resides with
the parent. Physical presence of the child as a visitor in the residence of a
parent does not satisfy the statutory requirement. The word
"resident" as used in s. 122.6 connotes a settled and usual abode. …
[15]
I have sympathy for the Appellant
as she and Melvin Gerrow barely have the means to support their five children
and now she must repay the amount of $4,124.66. However, as I explained to her counsel at the hearing, this
court does not have the jurisdiction to grant an equitable remedy.
[16]
The appeal is dismissed.
Signed at Ottawa,
Canada, this 22nd day of May 2009.
“V.A. Miller”
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