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Docket: 2005-1343(IT)I
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BETWEEN:
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NEELAM KAUR JUDGE,
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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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and
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DARBARA SINGH BAINS,
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Third Party.
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____________________________________________________________________
Appeals heard on July 10, 2006 at Vancouver, British Columbia
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Before: The Honourable Justice L.M. Little
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Appearances:
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Counsel for the Appellant:
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K. Alastair Rees-Thomas
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Agent for the Respondent:
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Ryan Gellings, Student-at-Law
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For the Third Party:
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Darbara S. Bains, self-represented
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____________________________________________________________________
JUDGMENT
The appeals from the assessments made under the Income Tax Act for the 2000, 2001 and 2002 base taxation years are allowed, without costs, and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
Signed at Vancouver, British Columbia, this 20th day of July 2006.
Little J.
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Citation: 2006TCC408
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Date: 20060720
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Docket: 2005-1343(IT)I
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BETWEEN:
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NEELAM KAUR JUDGE,
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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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And
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DARBARA BAINS,
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Third Party.
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REASONS FOR JUDGMENT
Little J.
A. FACTS
[1] The Appellant and Darbara Singh Bains ("Third Party") were married on June 26, 1993 and separated on May 28, 2001.
[2] There are two children of the marriage:
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Date of Birth
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Son
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December 29, 1995
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Son
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November 20, 1997
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(The children are hereinafter referred to as the "Children".)
[3] The Appellant received the Child Tax Benefits ("CTB") for the Children from the time of separation in May 2001 until 2004.
[4] The taxation periods involved are as follows:
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Base Taxation Year
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Period Involved
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2000
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July 2001 to June 2002
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2001
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July 2002 to June 2003
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2002
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July 2003 to June 2004
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[5] On or about April 7, 2004 the Third Party completed and signed a Child Tax Benefit Application Form in which he indicated that he has been primarily responsible for the two Children since September 1, 2001.
[6] The Minister of National Revenue (the "Minister") issued a CTB Notice dated July 20, 2004 in respect of the 2000, 2001 and 2002 Base Taxation Years. In the said Notice the Minister advised the Appellant that she no longer qualified for the CTB as of July 2001 for the youngest son and as of October 2001 for the oldest son because, as of those dates, the children were no longer residing with the Appellant. The Minister also determined that the Third Party was the person who primarily fulfilled the responsibility for the care and upbringing of the sons.
[7] On April 22, 2005 the Appellant filed a Notice of Appeal.
[8] On December 20, 2005 the Minister filed an Application under section 174 of the Income Tax Act (the "Act"). The Application indicates that the Minister requests a Determination as to who is the eligible individual within the meaning of section 122.6 of the Act and Regulation 6302 of the Income Tax Regulations in determining the CTB payable in relation to the qualified dependents of the Appellant and the Third Party for the period of time from July 2001 up to and including the month of June 2004 for the 2000 to 2002 Base Taxation Years inclusive.
B. ISSUE
[9] The issue is whether the Appellant was the eligible individual in respect of the Children from September 2001 and therefore was entitled to the CTB in respect of the children from September 2001 onwards.
C. ANALYSIS AND DECISION
[10] The evidence is contradictory because the Appellant and her sister-in-law, Angella, testified that the Appellant was the primary caregiver of the Children from the time of the separation (May 27, 2001) up to September 1, 2003. The Third Party, his father Kewal Bains, and other witnesses testified that the Third Party was the primary caregiver of the Children from September 1, 2001 onward.
[11] In considering the evidence I have reviewed the sworn testimony of the witnesses plus a number of documents, letters and receipts. I note that The Honourable Judge Gove of the Provincial Court of British Columbia issued a decision under the Family Relations Act of British Columbia (see Exhibit A-19). In his Reasons for Judgment Judge Gove referred to the Appellant and the Third Party and said:
... They have lived apart since 2001. Initially after they separated both boys spent more time with their mother than with their father. Over time this changed and they now spend more time with their father. He effectively controls Ms. Judge's access and this is, in part, because he has enrolled them in various activities and thereby limiting the time available with their mother.
[12] After considering all of the evidence in detail and a number of Court decisions, I have concluded that the Appellant was the primary caregiver of the Children from May 27, 2001 to August 31, 2002. I have also concluded that the Third Party was the primary caregiver of the Children from September 1, 2002 onwards.
[13] Since success has been divided between the parties I have decided not to award costs.
[14] The appeals are allowed, without costs, and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment to enable the Minister to make the appropriate adjustments.
[15] Before concluding my remarks I wish to state that I have concluded that both parents are working very hard to ensure that the Children have a secure environment and are exposed to numerous useful activities. I commend the parents for their efforts to provide properly for their Children.
Signed at Vancouver, British Columbia, this 20th day of July 2006.
Little J.
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