Citation: 2008TCC154
Date: 20080317
Docket: 2007-2706(IT)I
BETWEEN:
TERESE LAVERNE ROBERTSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Beaubier, D.J.
[1]
This appeal pursuant to
the Informal Procedure was heard at Saskatoon,
Saskatchewan on March 7, 2008. The Appellant was the only witness and her
testimony is believed in its entirety. All matters described herein occurred in
Saskatoon, Saskatchewan.
[2]
The Appellant was
disallowed the Canada Child Tax Benefit (“CCTB”), the Goods and Services Tax
Credit (“GSTC”) and the Saskatchewan Child Benefit (“SCB”) on the basis that
she was living common-law with the father of her children, Cody Bear, at
various times, all as described in the assumptions in paragraph 12 of the Reply
to the Notice of Appeal which reads as follows:
12. In so redetermining the Appellant’s CCTB for the 2003 and
2004 base taxation years and the GSTC for the 2001, 2002, 2003 and 2004 base
taxation years and in so confirming those determinations, the Minister assumed
the same facts, as follows:
a)
the Appellant and Cody were common-law partners
for the period of July 2002 to April 2006;
b)
the Appellant and Cody are the natural parents
of two children (hereinafter the “Children”):
Name of Child Date of Birth
Coden Bear March 24, 2004
Breydan Bear September 19, 2005
c)
the Appellant and Cody resided at 1109, 121 Clancy Drive, Saskatoon, since at least
July 2003;
d)
the Appellant resided at 326, 3170 Laurier Drive, Saskatoon, since at least April 2004;
e)
Cody resided at 326, 3170
Laurier Drive, Saskatoon, since at least July 2004;
f)
the Appellant resided at 253 Meighen Crescent, Saskatoon since at least August 29, 2005;
g)
the Children resided with the Appellant and Cody
during the period of July 2002 to April 2006;
h)
Cody filed his 2001, 2002 and 2003 income tax
returns and applied for the GSTC for himself, the Appellant and the Children
for the 2001, 2002 and 2003 base taxation years as follows:
Taxation Year Date Filed
2001 July 9, 2003
2002 July 9, 2003
2003 June 18, 2004
i)
Cody has not filed an income tax return for the
2004 taxation year;
j)
Cody’s 2001, 2002 and 2003 income tax returns
were assessed on the following dates:
Taxation Year Assessment Date
2001 July 24, 2003
2002 July 24, 2003
2003 June 29, 2004
k)
the Appellant filed her 2001, 2002, 2003 and
2004 income tax returns as follows:
Taxation Year Date Filed
2001 July 9, 2003
2002 July 9, 2003
2003 August 24, 2004
2004 April 29, 2005
l)
the Appellant’s 2001, 2002, 2003 and 2004 income
tax returns were assessed on the following dates:
Taxation Year Assessment Date
2001 July 24, 2003
2002 July 24, 2003
2003 September 30, 2004
2004 May 9, 2005
m)
the Minister designated Cody as the eligible
individual for the GSTC for himself, the Appellant and the Children for the
2001, 2002 and 2003 base taxation years;
n)
the Appellant filed her 2005 income tax return
on or before April 30, 2006 indicating her marital status as of December 31,
2005 as single;
o)
the Appellant did not elect, in a form that is
acceptable to the Minister, pursuant to subsection 122.62(6) of the Income Tax Act (hereinafter the “Act”);
p)
for the CCTB, the 2003 and 2004 base taxation
years covers the months of:
Base Taxation Year Months Covered
2003 July 2004 to June 2005
2004 July 2005 to June 2006
q)
for the months of July 2004 to April 2006, the
Appellant was in receipt of CCTB and SCB in the amounts of $3,378.00 and
$4,573.38 for the 2003 and 2004 base taxation years, respectively, as detailed
in Schedule A, attached to and forming part of the Reply to the Notice of
Appeal (hereinafter “Schedule A”);
r)
for the months of July 2004 to April 2006, the
Appellant was entitled to CCTB in the amount of $2,958.00 for the 2003 base
taxation year only, as detailed in Schedule A;
s)
for the months of July 2004 to April 2006, the
Appellant was overpaid the CCTB and SCB in the amounts of $420.00 and $4,573.38
for the 2003 and 2004 base taxation years, respectively, as detailed in
Schedule A;
t)
for the GSTC, the 2001, 2002, 2003 and 2004 base
taxation years covers the quarters beginning:
Base Taxation Year Quarters Beginning
2001 July 2002, Oct 2002, Jan 2003, April
2003
2002 July 2003, Oct 2003, Jan 2004, April
2004
2003 July 2004, Oct 2004, Jan 2005, April
2005
2004 July 2005, Oct 2005, Jan 2006, April
2006
u)
for the quarters beginning July 2002 to October
2005, the Appellant was in receipt of GSTC in the amounts of $239.88, $383.19,
$727.89 and $438.00 for the 2001, 2002, 2003 and 2004 base taxation years,
respectively, as detailed in Schedule B, attached to and forming part of the
Reply to the Notice of Appeal (hereinafter “Schedule B”);
v)
for the quarters beginning July 2002 to October
2005, the Appellant was not entitled to the GSTC for the 2001, 2002, 2003 and
2004 base taxation years, as detailed in Schedule B; and
w)
for the quarters beginning July 2002 to October
2005, the Appellant was overpaid GSTC in the amounts of $239.88, $383.19,
$727.89 and $438.00 for the 2001, 2002, 2003 and 2004 base taxation years,
respectively, as detailed in Schedule B.
[3]
The children are both
boys.
[4]
The Court accepts the
Appellant’s evidence respecting her living arrangements at the times in
question, which is as follows:
(1)
From 2001 to May 31,
2002, the Appellant lived common-law with Cody Bear on Pendygrasse Road. They broke up on May 31, 2002.
(2)
June 1, 2002, the
Appellant was living alone on Pendygrasse Road and moved next door and lived
with her cousin, Lindsay Burns, at 3243 – 373 Pendygrasse Road in December,
2002 for three or four months.
(3)
From about March to
September, 2003, the Appellant, still living singly, moved from there to her
mother’s residence at 1109 –
121 Clancy Drive.
(4)
The Appellant became
pregnant with Coden and reconciled with Cody Bear in September, 2003 and in
October, 2003, they moved to 326
– 3170 Laurier Drive,
whereupon Cody moved out in November, 2003. (The Court does not regard this as
the resumption of the common-law relationship which terminated on May 31, 2002
because it accepts the Divorce Act’s reconciliation 90 day rule, which
allows a 90 day period for attempted reconciliations.)
(5)
After Cody moved out,
the Appellant remained alone at 326
– 3170 Laurier Drive and
Coden was born.
(6)
In December, 2004, Cody
and the Appellant attempted to reconcile at Laurier Drive for three weeks and she became pregnant with Breydan.
Cody left at the end of three weeks. The Appellant was working at Freeway Gas
at this time.
(7)
Mid-August, 2005, the
Appellant moved from Laurier
Drive to 253 Meighen Crescent. In September, Breydan was born; she
returned to work in January, 2006. In August, 2006, the Appellant was accepted
into an upgrade program and she is now in training to become a nurse.
[5]
The Appellant has been
living as a single person since May 31, 2002. She does not know Cody’s address
and he apparently has no permanent residence. The Appellant informed the Court
that the police have contacted her about Cody because he has falsely described
her address as Cody’s from time to time; she is believed about this.
[6]
Based on these facts,
the Court finds that the Appellant has not lived common-law with Cody Bear, but
has lived singly since May 31, 2002, with the children after they were born.
[7]
Thus, the Court finds
that since the base date of May 31, 2002, and for the appropriate quarters
after that date, (a) Cody’s income should not be included in the calculation of
an adjusted income within the meaning of section 122.6 of the Income Tax Act
for the months of July, 2004 to April, 2006 of the 2003 and 2004 base taxation
years; and (b) after the base date of May 31, 2002, Cody was not the
Appellant’s common-law partner or qualified relation within the meaning of
section 122.5 of the Income Tax Act for the appropriate quarters from
July, 2002 to October, 2005, respecting the appropriate base taxation years.
[8]
The appeal is allowed
and the CCTB, the GSTC and the SCB are to be adjusted by the Minister in accordance
with these findings.
Signed
at Saskatoon, Saskatchewan this 17th day of March, 2008.
“D.W. Beaubier”
Beaubier, D.J.
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