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Citation: 2007TCC40
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Date: 20070122
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Docket: 2005-3791(IT)I
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BETWEEN:
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TRUDY PERRY,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
Little J.
A. FACTS
[1] The Appellant and James Walker are the parents of Carly Walker ("Carly"). Carly was born on July 30, 1988.
[2] The Appellant and James Walker were separated shortly after Carly was born.
[3] Court orders concerning Carly were issued on May 18, 1989 and August 2, 1990.
[4] By a Court Variation Order dated November 19, 1996 it was ordered as follows:
THIS COURT ORDERS THAT THE COURT ORDER DATED MAY 18, 1989 AND AUGUST 2, 1990 BE RESCINDED AND VARIED AS FOLLOWS:
THAT Trudy Maarhuis and James Walker shall have joint custody and joint guardianship of the child, namely:
Carly Lynn Maarhuis-Walker Born: July 30, 1988
THAT primary residence to be with Trudy Maarhuis.
THAT both parties shall maintain a primary residence in the Lower Mainland.
THAT James Walker shall pay to Trudy Maarhuis the sum of $200 per month for the support of the above named child. These payments to commence on the 1st day and 15th day of November 1996 in the sum of $100. These payments to continue to be made every 1st and 15th day of each and every month thereafter, being a total of $200. per month.
THAT James Walker shall have liberal and generous access. This access to include: every weekend being Friday afternoons until Monday mornings. (Exhibit A-1)
[5] By Consent Variation Order dated December 9, 2004 it was ordered as follows:
THIS COURT ORDERS:
1. THAT the Order made the 19th day of November, 1996 be rescinded and varied as follows:
2. THAT Trudy Maarhuis (AKA Trudy Perry) and James Walker shall have shared custody and joint Guardianship of the child:
Carly Lynn Maarhuis-Walker born July 30, 1988
3. THAT Trudy Maarhuis (AKA Trudy Perry)'s time with said child shall be as follows:
· Every Sunday afternoon until Wednesday morning.
· Other times as agreed to by both parties.
4. THAT James Walker shall be financially responsible for providing school supplies, clothing and extracurricular activities.
5. THAT Trudy Maarhuis (AKA Trudy Perry) shall provide medical coverage for the said child for as long as it is available through her employer. (Exhibit A-2)
[6] Prior to May 2004 the Appellant had been receiving Child Tax Benefits ("CTB") payments in respect of her three children, Carly, Nicole (born September 1992) and Eric (born August 2001).
[7] Mr. Walker testified that in 2004 he was advised by Government officials that since he appears to be the primary caregiver of Carly he should apply to receive the Child Tax Benefits relating to Carly.
[8] Mr. Walker filed an Application to receive the CTB with Government officials and he began to receive the CTBs effective May 2004.
[9] The Minister issued a CTB Notice to the Appellant on March 18, 2005. In the Notice the Minister stated that the Appellant had been overpaid by $208.50 from May to June 2004 (for the 2002 Base Year) and by $753.67 from July 2004 to January 2005 (for the 2003 Base Year).
[10] The Appellant filed a CTB Notice. The Appellant maintains that she was the primary caregiver of Carly from May 2004 to December 31, 2004. The Appellant admits that Mr. Walker was the primary caregiver of Carly from January 1, 2005 onward.
B. ISSUE
[11] The issue is whether the Appellant was an eligible individual in respect of Carly from May 2004 to January 2005 (the "Period") and therefore entitled to receive the CTB in respect of Carly for the Period.
C. ANALYSIS AND DECISION
[12] The legislation in the Income Tax Act (the "Act") does not permit the Court to impose a distribution between the parents of the Child Tax Benefit. Because the legislation does not allow such a distribution, only one of the parents can be an "eligible individual" "at any time".
[13] In determining whether a person qualifies as an "eligible individual", the two key issues are whether the child resides with the parent and which of the parents fulfils the role, at any given time, of primary caregiver (emphasis added).
In assessing this latter condition, the Court must consider, but is not limited to, the factors set out in section 6302 of the Regulations:
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.
[14] In this situation both the Appellant and Mr. Walker claim that they satisfy the requirements as outlined in (a) to (h) from Regulation 6302 in order to qualify as the primary caregiver of Carly during the Period.
[15] As will be noted from Exhibit A-2, Carly was with her father from Wednesday morning until Sunday afternoon (i.e. 4 nights per week) and Carly was with her mother for the remainder of the week. In addition James Walker was financially responsible for providing school supplies, clothing and extracurricular activities to his daughter.
[16] Counsel for the Respondent filed a series of cheques for the Period (Exhibit R-2). This exhibit indicates that Mr. Walker issued 16 cheques paying for a number of extracurricular activities plus other expenses for Carly. Mr. Walker also testified that he attended virtually all of Carly's other sporting activities. Mr. Walker said that he attended every sporting or school event where Carly was involved when he was able to do so. Mr. Walker said that he attended the following activities involving Carly:
− parent-teacher meetings
− drama club
− volleyball
− basketball
− rugby
− jiu jitsu
He said that he was totally involved with Carly's various activities.
[17] Based on a careful analysis of the testimony of the parties and the documents that were filed, I have concluded that James Walker primarily fulfilled the responsibility for the care and upbringing of Carly for the purpose of claiming the CTB during the Period.
[18] In reaching this conclusion I have also noted the following cases:
In Canada v. Marshall, [1996] F.C.J. No. 431, Justice Stone of the Federal Court of Appeal stated:
... the Act contemplates only one parent being an "eligible individual" for the purpose of allowing the benefits. It makes no provision for prorating between two who claim to be eligible parents. Only Parliament can provide for a prorating of benefits but it has not done so.
The following comment is taken from the decision in Matte v. Canada, [2003] F.C.J. No. 43, where Justice Strayer of the Federal Court of Appeal stated:
It is important to note that this definition clearly contemplates that the "eligible individual" may change from time to time, as long as at the relevant time he or she is primarily fulfilling the responsibility of a caregiver. This is indicated by the words "at any time means a person who at that time ..." in the opening words of the definition.
[19] I also refer to the decision of Justice Lamarre Proulx in Robitaille v. Canada, [1997] T.C.J. No. 6:
According to the long-standing rules of evidence in tax litigation, in order to obtain a reversal of this determination, the burden is on the appellant to show that she was the one who primarily fulfilled the responsibility for the care of the qualified dependent children. Her testimony was that the responsibility was shared equally. In light of the lack of evidence and the fact that the Court is bound by the decision of the Federal Court of Appeal, cited supra, which states that only one parent may be an eligible individual, the Minister's determination must be affirmed.
I agree with the comments of my colleague Justice Lamarre Proulx.
[20] The appeals are dismissed without costs.
Signed at Vancouver, British Columbia, this 22nd day of January 2007.
Little J.
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