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Citation: 2008TCC191
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Date: 20080416
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Docket: 2007-2475(IT)I
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BETWEEN:
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GINETTE LAFONTAINE,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent,
and
GASTON GAUTHIER,
Intervenor.
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[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Tardif J.
[1] This is an appeal from a determination by the
Minister of National Revenue (the "Minister") dated November 20,
2006, whereby the Appellant was denied the Canada Child Tax Benefit for the
periods of July 2005 to June 2006 and July 2006 to October 2006. The Minister determined that the overpayments
totalled $2,950 for the 2004 base year
and $1,066.64 for the 2005 base year.
[2] On October 27, 2006, the Minister also revised
the Appellant's Goods and Services Tax Credit for the periods of July 2005 to
April 2006 and July 2006 to October 2006, determining that the Appellant did
not qualify for the $327 for the 2004 taxation year or the $177 for the 2005
taxation year.
[3] The decision appealed is that of
April 3, 2007, in which the Minister confirmed
the redeterminations of November 20, 2006, for the 2004 and 2005 base years and
the redeterminations of October 27, 2006, for the 2004 and 2005 taxation years.
[4] In arriving at the determinations, the Minister
relied on the following assumptions of fact:
[TRANSLATION]
a)
The Appellant
is the mother of Pascal-Dévid Lafontaine, born March 27, 1989;
b)
Gaston
Gauthier is Pascal-Dévid's father;
c)
During
the periods at issue, Pascal-Dévid was residing with his father;
d)
The
Minister determined that Gaston Gauthier was the individual who primarily
fulfilled the responsibility for the care and upbringing of Pascal-Dévid during
the periods at issue.
[5] The Court has to decide whether the
following statements are true:
[TRANSLATION]
a)
The Minister
correctly revised the amounts of the Appellant's Child Tax Benefit and
determined that the overpayments totalled $2,950 for the 2004 base year and
$1,066.64 for the 2005 base year.
b) The Minister correctly
revised the Appellant's Goods and Services Tax Credit and determined that the
amounts of the overpayments totalled $347 for the 2004 taxation year and $177
for the 2005 taxation year.
[6] Ginette Lafontaine testified at length. She started by stating that she was the mother of Pascal-Dévid
Joseph Lafontaine, born on March 27, 1989, and that no father's name was
recorded on the birth certificate.
[7] She stated that the biological father was the Intervenor,
Gaston Gauthier, with whom she had another son, Simon. She explained that
she had lived with the Intervenor for three or four years and that a first
separation had occurred while she had been pregnant with Pascal-Dévid.
[8] She had moved back in with Gaston Gauthier a
short while later, but only for a brief period. She had never lived with him again after that time.
[9] She explained that Pascal-Dévid had been
diagnosed as having severe diabetes at a very young age, that is, at about two
and a half years of age. As a result, Pascal-Dévid
had required constant attention and round-the-clock care.
[10] To deal with his illness, young Pascal-Dévid had
to be given injections seven days a week. He had had to go to the hospital
every week at first, then every two weeks and, finally, every three weeks.
[11] Pascal-Dévid's health had been very worrying. He
had needed a great deal of care and a very high level of attention, to the
point of having to give him up to four injections a day.
[12] During all those years (through Pascal-Dévid's
childhood and teenage years), Pascal-Dévid's father never provided any assistance
and never really showed any concern about his son's health.
[13] Ms. Lafontaine stated that she had had no
contact with Gaston Gauthier, except on one occasion when some serious
accusations had been circulating concerning Pascal-Dévid's behaviour.
[14] Ms. Lafontaine provided considerable detail
concerning Pascal-Dévid's care and upbringing. She explained that
Pascal-Dévid's medical care had been a constant concern for her and that she
had expended a great deal of energy to enable her son to have a normal life.
[15] Obviously, the Appellant spent a good deal of
her free time and much energy seeing to the well-being of Pascal-Dévid. She stated
that she had given her son $35 to $40 a week so that he could eat in the
cafeteria and have a snack, as this was essential for his health. She also paid
for protein products, gym fees, clothing, school-related equipment and supplies,
and so on. She also took an interest in
Pascal-Dévid's performance
at school.
[16] Pascal-Dévid had a close relationship with his
grandfather, who drove him daily to a job he had at a convenience store. Pascal-Dévid
also enjoyed his grandfather's boat, to the point of making it his headquarters
for a while.
[17] The Appellant explained that, at the start of
the periods at issue, her son had expressed a desire to get to know his father
better. She stated that she had not objected to her son's wish—in fact,
the very opposite was true. According to the Appellant, her son had wanted to
get to know both his father and his brother, who had stayed with his father,
better.
[18] Pascal-Dévid had thus managed to get a room with
a futon and a chest of drawers in his father's apartment.
[19] According to Mr. Gauthier, Pascal-Dévid had
settled in there, for a period of about two years. He explained in support of
his claims that his rental had been close to his son's school.
[20] The Appellant did not deny that her son had
lived with his father on and off, but stated that her son had spent part of his
time with his father, part with her, and part with his friends, and had occasionally
stayed with his grandfather.
[21] In her account of the facts, the Appellant was
explicit and provided considerable detail showing a truly daily interest as
well as serious concern about the welfare and stability of her son, who was
seriously impaired by his health problem.
[22] Mr. Gauthier, for his part, stated that his son
had shown up one morning, just as he was moving into a new apartment; Pascal‑Dévid
had told him he wanted to spend more time with him to get to know him better
and also to be closer to his brother, who was also living there.
[23] Mr. Gauthier was not very explicit and stated
several times that Pascal-Dévid was a loner who was able to make his own
decisions. Mr. Gauthier ran a
landscaping business and gave his son some work, such as cutting grass.
[24] He maintained that he had housed his
son for about a year. Then, since the situation with Pascal‑Dévid seemed
to be turning into a permanent arrangement, he had taken steps to obtain tax
benefits, without advising Pascal-Dévid's mother of the fact.
[25] He had also taken steps to change the different
addresses on documents relating to his son, again without informing the mother.
For instance, he had asked Pascal-Dévid's school to change his address, falsely
representing himself as the child's guardian.
[26] When asked for clarifications concerning his
testimony, Mr. Gauthier basically made some general, often confused,
statements. For example, when the Court asked about the discrepancies between
two report cards, the father clearly became ill at ease.
[27] Generally speaking, the mother has always acted
pro-actively in regard to her son, while the father has basically been passive
in his attitude and behaviour toward him.
[28] Moreover—and this is a determining factor, which
is confirmed by the balance of evidence derived from the explanations of the
father and mother— Pascal-Dévid
never really left his mother's residence; he left all his personal belongings
and, specifically, all the items relating to his pastimes and sports
activities, such as his fishing pole, moped, and so on., at his mother's place.
[29] I attempted to obtain more information from the
father about the room set up for Pascal-Dévid. He explained that he had bought
a futon right away and had added a chest of drawers a little later on. In other
words, he had purchased the bare minimum needed for his son to stay with him.
[30] Based on the many, detailed
explanations provided by the Appellant, it appears that Pascal-Dévid spent the
greater part of his early years with his mother and had very little, if any,
contact with his father.
[31] As a teenager, Pascal‑Dévid naturally
wanted to get to know his father and be closer to his brother. The father allowed
his son to stay with him; he set up a space for him and provided him with work
through the business he operated.
[32] Are these factors sufficient to conclude that
the father was the eligible parent?
[33] The evidence showed that the father-son
relationship was an adult relationship in the sense that the father considered his
son mature, responsible and fully able to take care of himself. The Appellant,
on the other hand, was concerned about his health.
[34] The fact that a minor child who has never really
gotten to know his father or brother expresses a need to establish a
relationship with them is normal and right—to be recommended, even.
[35] Does establishing this closer relationship mean that
the child automatically stops living in his place of residence? The Appellant
described all the things and personal effects left in her home by her son, who
regularly returned to his mother's residence.
[36] As for the father, he did set up a room so that
his son could stay with him. He proudly indicated that he had bought a futon
and chest of drawers for his son, as
though this were an exceptional and remarkable thing to do. What generosity,
what a welcome! Should such astounding generosity entitle him to the status of eligible
parent? Why did he lie about being the child's guardian in order to have the
child's address changed? Why did he take steps to have the address changed
without advising the Appellant? The answer is quite simple. Never did he provide support to
the Appellant during the extremely hard times she must have endured because of Pascal‑Dévid’s
health problems.
[37] He wanted his son to see him as a welcoming
father who held no grudges, but his actions were not completely unselfish, as
he underhandedly applied for the tax benefits, no doubt to pay for the futon
and chest of drawers.
[38] The balance of evidence indicates that, during
the periods at issue, the child had a number of places to spend the night. Moreover,
as a teenager, he enjoyed a great deal of freedom, which makes it difficult to
rule on the matter of residence.
[39] However, it has been established that Pascal‑Dévid
left all his personal effects at his mother's home. This is a determining
factor in identifying the permanent residence.
[40] Moreover, the fact that the father made all the
arrangements for the change of address without Pascal-Dévid's mother's
knowledge is revealing. Pascal-Dévid was not a child, but a teenager.
[41] Had the father acted transparently in taking those
steps, these proceedings would likely never have taken place, as everyone
concerned would have agreed on the choice of the real residence.
[42] For all of these reasons, I find that the mother
was always the eligible parent, right up to the child's age of majority.
Signed at Ottawa, Canada, this 16th day of
April 2008.
Tardif
J.
Translation certified true
on this 26th day of May 2008.
Carole Chamberlin, Translator
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