Citation: 2008 TCC 544
Date: 20080926
Docket: 2007-4329(IT)I
BETWEEN:
MARILYN JAHNKE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Bowie J.
[1]
These are appeals
brought under the informal procedure challenging notices of redetermination
dated January 19, 2007 and January 26, 2007, respectively, whereby the Minister
of National Revenue (the Minister) determined that the Appellant was not
entitled to receive the Canada Child Tax Benefit (“CCTB”) and other benefits in
respect of Tara Dawn Janvier. The basis for the Minister’s decision is
that, in his view, Tara was not a qualified dependant of the appellant. By
those redeterminations the Minister sought to recover a total of $4,455.12 from
the appellant as overpayments.
facts
[2]
The appellant and her husband, who
is a semi-retired physician, have raised many foster children in the course of
their marriage. Presently, they have eight children living with them, many of whom
need special medical care. In July 1995, Tara joined the Appellant’s family, following her
discharge from the hospital at about five months of age. She was born
prematurely and requires special medical attention. She is unable to eat on her
own and requires a feeding tube to provide her with nutrition. She also has
some learning challenges.
[3]
Initially, the Appellant and her
husband received no financial assistance either from the child’s parents or from
the various government agencies responsible for child welfare. They did,
however, receive some financial support from the Meadow Lake Tribal Council
until August 2002. They also were able to have Tara covered by their family’s provincial
medical insurance. It was during the year 2002 that the appellant applied for,
and received, the CCTB under section 122.61 of the Income Tax Act, as well as the
National Child Benefit Supplement, the Child Disability Benefit and, in January
2006, the Energy Cost Benefit. For convenience, I shall refer to these
collectively as “the Benefits”.
[4]
The appellant put into evidence a
consent order made on March 27, 2005 by the Saskatchewan Court of Queen’s Bench
(Family Law Division). The parties to the proceeding in which the order was
made are the appellant and her husband, the birth parents of the child, and
the Meadow Lake Tribal Council Health and Social Development Authority (“the
Authority”). The order is a comprehensive one providing for the care and
upbringing of the child. Under it, the appellant and her husband, the birth
parents and the Authority are given joint custody of the child, with the
responsibility for decision-making to be shared among them. The order provides
that the child will live with the appellant and her husband, with the other
parties having visitation rights. The final paragraph of the order provides
that the Authority is required to provide financial assistance to the appellant
and her husband. Specifically, it is required to pay Tara’s medical,
dental and orthodontic costs, to the extent that they are not covered by
insurance, and to pay $975.24 per month to the appellant and her husband.
Issue
[5]
For the appellant to be entitled
to receive the Benefits in respect of Tara, she must meet the definition of an
“eligible individual” and Tara must meet the definition of a “qualified
dependant”, both of which are found in section 122.6 of the Act. It is
not disputed that the appellant satisfies the definition of an “eligible
individual”. However the respondent’s position is that during the periods under
appeal, Tara was not a “qualified dependant”. That definition reads:
122.6 In
this subdivision,
"qualified dependant" at any time means a person who at that
time
(a) has not attained the age of 18 years,
(b) is not a person in respect of whom an amount was
deducted under paragraph (a) of the description of B in subsection 118(1)
in computing the tax payable under this Part by the person's spouse or common-law
partner for the base taxation year in relation to the month that includes that
time, and
(c)
is not a person in respect of whom a special allowance under the Children's
Special Allowances Act is payable for the month that includes that time;
It is
not in dispute that the entitlement to receive all the other benefits in issue
here is governed by the same provisions of the Act that govern the
entitlement to the CCTB.
[6]
The respondent’s case is based
entirely on paragraph (c) of that definition, namely that Tara was a
child in respect of whom a special allowance was payable under the Children’s
Special Allowances Act
(“CSA Act”). That is the only issue in dispute. The assumptions on which
the Minister based his redetermination of the appellant’s rights under the Act
are pleaded in paragraph 10 of the Reply to the Notice of Appeal.
10. In
redetermining the Appellant’s entitlement to the CCTB for the 2004 and 2005
base years and to the Energy Cost Benefit for the 2004 base year, the Minister
made the following assumptions of fact:
(a) The Appellant was the primary caregiver in respect of Tara
for the period July 2005 to December 2006;
(b) beginning in December 2005, Tara was a person of whom [sic]
a special allowance under the Children’s Special Allowance [sic]
Act was payable;
(c) Meadow Lake Tribal Council & Family Services, (the
“Agency”) received a special allowance under the Children’s Special
Allowance [sic] Act in respect of Tara beginning in December
2005;
(d)
the Agency paid maintenance to the Appellant in respect of Tara.
At
the trial, the respondent led no evidence, choosing instead to rely entirely on
these assumptions.
[7]
It is evident that the Minister’s
assumption in paragraph 10(b) is an assertion of mixed fact and law. As such, it
is pleaded in blatant contravention of the decisions of both this Court and the
Federal Court of Appeal in Anchor Pointe Energy Ltd. v. The Queen. In that case,
Rothstein J., writing for a unanimous Court of Appeal, said:
… The Minister may assume the factual components of a conclusion of
mixed fact and law. However, if he wishes to do so, he should extricate the
factual components that are being assumed so that the taxpayer is told exactly
what factual assumptions it must demolish in order to succeed. It is
unsatisfactory that the assumed facts be buried in the conclusion of mixed fact
and law.
The
Minister should have extricated the factual components that were assumed in the
conclusion that a special allowance under the CSA Act was payable in
respect of Tara. Subparagraph 10(b) of the Reply is of no effect, and
I shall ignore it.
[8]
Subparagraph 10(c) of the Reply is
a factual statement. However it is a fact that is within the peculiar knowledge
of the Minister of National Revenue, who administers the CSA Act, and
the Meadow Lake Tribal Council & Family Services. The onus to prove this
factual statement, therefore, must lie on the respondent rather than on the appellant.
The decisions of the Supreme Court of Canada in Anderson Logging Co. v. R. and Johnston v. Canada (Minister of National Revenue) clearly
established that the onus of proof lies with the Appellant as to those facts of
which the Appellant has intimate knowledge. Fairness dictates that the same
rule should apply to cast the onus on the respondent where the Minister and not
the appellant has unique knowledge of the facts. It would have been a simple
matter for the respondent to produce evidence to establish that the Minister
was paying an allowance in respect of Tara under the CSA Act, and the
facts upon which he had decided that he should do so. Having failed that, the
respondent has not established that an allowance under the CSA Act was being
paid in respect of Tara.
[9]
Paragraph (c) of the
definition of “qualified dependant” refers to a child in respect of whom an
allowance under the CSA Act is payable, not one in respect of whom an
allowance is paid. It is therefore relevant to ask the question whether Tara is
such a child, even though it has not been established that an allowance was
paid in respect of her. Counsel for the respondent took the position that it is
not open to this Court to consider whether an allowance was payable to the
Agency under the CSA Act. His submission was that this Court has no
jurisdiction to make any determination with respect to that matter, as the CSA
Act is not a statute referred to in the Tax Court of Canada Act. Thus, according to counsel,
if the Minister decides to pay an allowance, this Court cannot question the correctness
of that decision for the purpose of determining whether a child is a “qualified
dependant” within the definition of the ITA. I do not agree. To take
that view is to alter the definition of a “qualified dependant” under section
122.6 of the Act by changing the word “payable” to “paid”. If Parliament
wanted the Act to be read in that way, it would have written it that
way. Certainly, this Court cannot give any relief under the CSA Act; a
person disputing a decision of the Minister to refuse to grant an allowance
under that Act would have to seek judicial review in the Federal Court. However,
when the answer to a question that is properly before this Court requires a
determination whether, on the facts of the case, such an allowance would be
payable, then this Court must make that determination. It would be an absurd
result if an appellant could be denied benefits to which she is entitled under section
122.61 of the Act, without recourse to a right of appeal, simply because
the Minister mistakenly paid a benefit under the CSA Act to someone else
who was not entitled to receive it.
[10]
The Appellant’s position is that
the conditions under which an allowance is payable under the CSA Act are
not satisfied in this case, so no allowance was payable under that Act,
and therefore, if any allowance was paid it was paid in error. Subsection 3(1)
of the CSA Act governs the payment of allowances, and it reads as
follows:
3(1) Subject to
this Act, there shall be paid out of the Consolidated Revenue Fund, for
each month, a special allowance in the amount determined for that month by or
pursuant to section 8 in respect of each child who
(a) is maintained
(i) by
a department or agency of the government of Canada or a province, or
(ii) by
an agency appointed by a province, including an authority established under the
laws of a province, or by an agency appointed by such an authority, for the
purpose of administering any law of the province for the protection and care of
children,
and who resides in the private home of foster
parents, a group foster home or an institution; or
(b) is maintained
by an institution licensed or otherwise authorized under the law of the
province to have the custody or care of children.
[11]
Counsel for the appellant argues
that neither paragraph (a) nor paragraph (b) of subsection 3(1)
of the CSA Act applies for two reasons. First, Tara is not
maintained by either a department or an agency of the kind described in subparagraph
3(1)(a)(i), or an institution of the kind described in paragraph 3(1)(b).
Second, the Appellant submits that Tara did not reside in the private home of
foster parents, a group foster home or an institution as further required by
paragraph 3(1)(a). It is not disputed that Tara has lived exclusively
with the appellant and her husband throughout the relevant period. The Appellant
argues that she and her husband are not, and have not been since the date of
the consent order, Tara’s foster parents. Rather they are, and have been
since March 27, 2005, her custodial primary residence parents.
[12]
The term “maintained” is defined for
purposes of the CSA Act, by section 9 of the Children’s Special
Allowance Regulations.
It reads:
MAINTENANCE
OF CHILD
9. For the
purposes of the Act, a child is considered to be maintained by an
applicant in a month if the child, at the end of the month, is dependant on the
applicant for the child's care, maintenance, education, training and
advancement to a greater extent than on any other department, agency or institution
or on any person.
[13]
In order to qualify as maintaining
Tara, it is not necessary for the Agency to provide for all of her living
expenses. It simply has to provide for the child’s care, maintenance,
education, training and advancement to a greater extent than the Appellant, or
anyone else does. This is a question of fact that neither party has addressed
in the pleadings or in evidence. The Appellant took a narrow approach, arguing that
the Consent Order does not explicitly state that Tara is “maintained” by the Agency,
and so no payments should have been made to it under the CSA Act.
[14]
It
is not possible to determine on the evidence before me whether Tara is
“maintained” by the Authority, as there is no basis on which to compare its
contribution towards her maintenance with that of the appellant and her
husband. It is notable, too, that the respondent did not plead as an assumption
that the Authority maintained Tara, only that it
paid maintenance. Neither the Minister’s assumptions nor the evidence establishes
that any department, agency or institution maintained Tara within the defined
meaning of that term.
[15]
The other requirement to bring a child within paragraph
3(1)(a) of the CSA Act is that the child “…resides in the
private home of foster parents, a group foster home or an institution…”. Are the
appellant and her husband Tara’s foster parents? From an examination of the
relevant Saskatchewan legislation, it appears that from
the time the consent order was made in March 2005 they could not have been
foster parents to the child.
[16]
The Child and Family Services
Act of Saskatchewan promotes the well‑being of children
by providing services to them, one of which is foster care. The Children’s Law Act, 1997 establishes the legislative regime regarding child custody and
access. Justice Sandomirsky of the Saskatchewan Court of Queen's Bench
(Family Law Division) has explained the different functions of the two statutes
this way:
The
CFSA [Child and Family Services Act] and the CLA [Children’s
Law Act, 1997] have different objectives. The former is legislation
designed to apprehend a child in need of protection and to promote the well
being of the child by offering, where appropriate, services that are designed
to maintain, support and preserve the family in the least disruptive manner
(see s. 3). The overarching principle in this legislative scheme is the child's
best interests, which interests are to be determined by considering each of the
factors set out in s. 4 of the said Act. Section 4 is not an exhaustive set of
factors despite the expansive nature of the factors enunciated therein. The CLA
focuses upon the custody and access of children and provides a legislative
regime for determining competing claims and interests respecting children. In Saskatchewan these two statutes are read together
as part of a comprehensive scheme of child welfare legislation.(citations
omitted)
Paragraph
2(1)(j) of the Child and Family Services Act defines “foster care
services” as follows:
(j) “foster care services” means the
provision of residential services to a child by and in the home of a person who
is:
(i) approved by a director to care for the
child; and
(ii) not the child’s parent or a person
with whom the child has been placed for adoption;
Subsection
2(1) of The Child and Family Services Regulations defines the
following terms:
(d) “foster home” means the home of
a person who has been approved by the director to provide foster care services
for a child in the home;
(e) “foster parent” means a person
whom a director has approved to provide foster care services
Paragraph
2(1)(g) of The Child and Family Services Act defines
“director” as:
… a person appointed by the minister pursuant to clause 57(a)
as a director for all or any of the purposes of this Act and, in the absence of
an appointment, means the minister;
Part
VI of The Child and Family Services Act deals with children in
the care of the Minister and addresses foster care agreements. Section 54
reads as follows:
54(1) Where foster care services are provided
pursuant to this Act, the director shall enter into a written agreement
with the person providing those services setting out the duties and
responsibilities of each party with respect to the care provided.
54(2) None of the rights or powers vested in
the minister pursuant to this Act are impaired by any terms or
conditions of an agreement made pursuant to subsection (1).
54(3) Every agreement made pursuant to
subsection (1) is deemed to contain a provision reserving to the director the
right to remove the child from the person providing foster care where, in the
opinion of the director, the welfare of the child requires that removal.
When
a child is placed under foster care, the Minister retains the ultimate control,
and is responsible for that child’s welfare. The foster parents simply provide
a “residential service”. The foster child may be removed from its foster
parents if the director deems it necessary, without the need of a court order.
Thus, a child who is placed under foster care remains in the care of the
Minister, as reflected by the title of Part VI: Children in the Care of the
Minister.
[17]
Subsections 6(1) and (4) of The
Children’s Law Act provide:
6(1) Notwithstanding sections 3 to 5, on the
application of a parent or other person having, in the opinion of the court, a
sufficient interest, the court may, by order:
(a) grant custody of or access to a
child to one or more persons;
(b) determine any aspect of the
incidents of the right to custody or access; and
(c) make any additional order that
the court considers necessary and proper in the circumstances.
…
6(4) On application, the court may vary or
discharge any order made pursuant to this section where there has been a
material change in circumstances since the date of the order….
The following terms
are defined for purposes of this statute:
“court” means the Family Law Division of the Court of Queen’s Bench or a
judge of that court sitting in chambers; («tribunal»)
“custody” means personal guardianship of a child and includes care,
upbringing and any other incident of custody having regard to the child’s age
and maturity; («garde»)
“legal custodian” means a person having lawful custody of a child;
(«gardien légitime»)
[18]
It is clear that the appellant and
her husband, the birth parents and the Authority, all have joint custody of Tara. This is
provided specifically in paragraph 1 of the consent order. I agree with the Appellant that
once she was granted shared custody of Tara she could no longer be her foster
parent. As a custodial parent, she no
longer is a “person whom a director has
approved to provide foster care services” and, therefore, she does not fall within the
definition of “foster parent” pursuant to subsection 2(1) of The Child and
Family Services Regulations. The Appellant does not simply act on the Minister’s
behalf, and cannot be displaced by the Minister. The terms of the consent order
can only be altered by the Court, which has jurisdiction to deal with custody.
[19]
As Tara does not reside in the home
of foster parents, a group foster home or
an institution, it follows that she was
not a child to whom a special allowance was payable under subsection 3(1) of
the CSA Act during the years under appeal. As this was the only basis
for the Minister’s decision to deny the appellant the CCTB under section 122.61
of the Act, the appeals must succeed.
[20]
The appeals are allowed. The redeterminations
are referred back to the Minister for reconsideration and redetermination on
the basis that Tara was, during the 2004 and 2005 base years, a qualified
dependant of the appellant.
Signed at Ottawa, Canada, this 26th day of September, 2008.
“E.A. Bowie”
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