Citation: 2007CCI355
Date: 20070808
Docket: 2007-658(IT)I
BETWEEN:
CHANTAL LANDRY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Bédard J.
[1] This is an appeal
against a Notice of Redetermination of the Canada Child Tax Benefit with
respect to the 2004 base year.
[2] The issue is
whether the Minister of National Revenue (the Minister) correctly concluded
that the Appellant was not the parent who primarily fulfilled the
responsibility for the care and upbringing of her child Sébastien, with respect
to the 2004 base year, in July and August 2005.
[3] In a Notice of
Redetermination dated February 20, 2006, with respect to the 2004 base
year, the Minister determined that the Appellant was not an eligible individual
in respect of her child Sébastien for July and August 2005.
[4] On May 16,
2006, the Appellant served on the Minister a Notice of Objection to the Notice
of Redetermination of the Canada Child Tax Benefit dated
February 20, 2006, with respect to the 2004 base year.
[5] On October 16, 2006,
the Minister confirmed the Redetermination of the Canada Child Tax Benefit
dated February 20, 2006, with respect to the 2004 base year.
[6] In making and
confirming the Redetermination of the Child Tax Benefit issued
February 20, 2006, with respect to the 2004 base year, the Minister relied
on the following assumptions of fact:
[TRANSLATION]
a) the Appellant
and Mr. Alain Petit are the parents of, among others, a son named Sébastien,
born April 9, 1995; (admitted)
b) for the 2003
base year, in the period from February 2005 to June 2005, the Appellant was not
considered the parent who primarily fulfilled the responsibility for the care
and upbringing of her child Sébastien; (admitted)
c) on
September 9, 2005, in a notice of redetermination of the Canada Child Tax
Benefit, the Minister considered the Appellant the parent who primarily
fulfilled the responsibility for the care and upbringing of her child
Sébastien, as of July 2005 for the 2004 base year; (admitted)
d) Alain Petit
filed a Canada Child Tax Benefit claim in respect of his son Sébastien,
claiming that the child in question lived with him from
June 17, 2005, to August 7, 2005, after which date he returned
to live with the Appellant; (denied as written)
e) on
December 5, 2005, the Minister sent the Appellant and Alain Petit a
questionnaire to fill out regarding the period from June 17, 2005, to
August 7, 2005, to assess which of the two parties was the parent
eligible to receive tax benefits in respect of the child Sébastien; (admitted)
f) the Appellant
replied in writing on January 4, 2006, that a decision handed down by the
Superior Court granted her sole custody of her son Sébastien on June 30, 2005; (admitted)
g) Alain Petit
sent a letter dated December 28, 2005, in which he provided the names of
persons, one for each part of the period at issue, who could confirm that the
child Sebastian was living with him; (unknown)
h) at
the objections stage, the Appellant's representative, Jean‑H. Lemire,
acknowledged that the child Sébastien was living with his father during the
period at issue, but said that he considered the stay a visit, given that his
client had been granted legal custody of the child in question on June 30,
2005, by a decision of the Superior Court. (admitted)
[7] It should be noted
at this point that pursuant to a judgment rendered by the Superior Court of
Québec on June 30, 2005
(the judgment), the Appellant was granted sole custody of Sébastien, and
Sébastien's father, Alain Petit, was given the following access rights:
[TRANSLATION]
- Every second
weekend, from Thursday evening after school (around 4:00 p.m.) until 6:00
p.m. on Sunday;
- One week
during the Christmas season, alternating from year to year between Christmas
and New Year's;
- The week of
spring break each year in late February and/or early March;
- One month
during the summer, the dates to be agreed upon with the applicant.
Appellant's testimony
[8] The Appellant
admitted that Sébastien lived continuously with his father from February 2004
to August 7, 2005, inclusive. She explained that she had agreed with
Sébastien's father, pursuant to the statement in the judgment providing
Sébastien's father with access for a month in the summer, that he would take
Sébastien from July 1, 2005, to July 31, 2005. She added that
Sébastien's father had not taken the necessary measures to ensure that
Sébastien return to live with her on July 31, 2005. She explained that the
father eventually complied with her request and returned Sébastien to her home
on August 7, 2005, but only after she had threatened to call the police to
have her rights enforced.
Father's testimony
[9] The father
testified that he had become aware of the judgment on July 7, 2005,
the date on which he had brought his son back to the Appellant's home. He
explained that a few minutes after arriving at the Appellant's residence,
Sébastien had begged him to take him back to his own home. He therefore agreed
with the Appellant that he would take Sébastien for the period from
July 7, 2005, to August 7, 2005, inclusive, the date on which he took
the necessary measures to return Sébastien to live with the Appellant.
Appellant's position
[10] Counsel for the
Appellant made the following clams:
i) during
the period from July 1, 2005, to July 31, 2005, Sébastien was only
visiting his father, given that, according to the judgment, his client had sole
custody of Sébastien as of June 30, 2005;
ii) during
the period from August 1, 2005, to August 7, 2005, Sébastien's
presence at his father's residence was illegal, given that his father had
abused his access rights by unilaterally deciding to keep Sébastien against the
Appellant's will.
Analysis and
Conclusion
[11] Paragraph (a)
of the definition of the term "eligible individual" in s. 122.6
of the Income Tax Act (the Act) requires in particular that the eligible
individual reside with the dependent. The residence test is thus an essential
factor in obtaining the credit.
[12] The term
"reside with" as used in the definition of the term "eligible
individual" under s. 122.6 of the Act, essentially means "live in the
same house" habitually. I must therefore decide the following issue: was
the Appellant habitually living in the same house as her son in July and August
2005?
[13] I also note that the
fact of having sole custody of a child under an agreement or judgment does not
automatically entitle one to the Child Tax Benefit. That is simply not a
determinant factor. In no way does a separation agreement or similar judgment
bind the Minister, nor does it confer tax rights on a parent with whom the
child is not residing and who is not responsible for the child.
[14] Finally, it is
important to understand that in the formula for determining the amount of
benefits payable found in s. 122.61 of the Act, the minimum benefit period
is one month and that a month of benefits is to be paid to whoever was the
eligible individual at the beginning of the month; that is, to the person who
was primarily fulfilling the responsibility for the care and upbringing of the
child at that time.
[15] With respect to the
month of July 2005, I conclude that the Appellant was not the eligible
individual, since Sébastien was not residing with his mother during that
period. Accordingly, the Appellant was not entitled to the Canada Child Tax
Benefit during that period. Let me reiterate that the fact of having sole
custody of a child pursuant to an agreement or judgment does not automatically
entitle one to the Child Tax Benefit.
[16] With respect to the
month of August 2005, I would have concluded that the Appellant was the
eligible individual if she had satisfied me that Sébastien's stay with his
father during the first seven days of that month had been in any way illegal.
To do so, the Appellant first had to satisfy me that on the same day the
judgment was rendered, namely June 30, 2005, she had not only become aware
of the judgment, but had also agreed with Alain Petit that he would be
responsible for Sébastien from July 1 to July 31, 2005, inclusive. On
that point, Mr. Petit's version of the facts simply strikes me as more
plausible than the Appellant's version. Note that Mr. Petit testified that
he had become aware of the judgment on July 7, 2005, the date on
which he returned Sébastien to the Appellant's residence, in accordance with the
terms of the judgment granting the Appellant sole custody of Sébastien. Note
also Mr. Petit's testimony to the effect that, five minutes after arriving
at the Appellant's residence, Sébastien had begged him to take him back home
with him, and it was at that point that he and the Appellant agreed that he
would take Sébastien for the period from July 7, 2005, to
August 7, 2005, inclusive, the date on which he was required to take
the necessary measures to return Sébastien to his mother's residence. Accordingly,
I find that Sébastien's presence in his father's home during the first seven
days of August was not illegal, and that Sébastien was therefore not living
with his mother at the beginning of August. Because the Appellant was not
living with Sébastien at the beginning of that month, she could not have been
the eligible individual for the month of August 2005, and, accordingly, she was
not entitled to the Canada Child Tax Benefit for that month.
[17] For these reasons,
the appeal is dismissed.
Signed at Ottawa,
Canada, this 8th day of August 2007.
"Paul Bédard"
Translation certified true
on this 20th day of August 2007.
Francie Gow, Translator
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