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Dockets: 2005-49(IT)I
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BETWEEN:
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CHRISTIAN MURRAY,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
[OFFICIAL ENGLISH TRANSLATION]
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____________________________________________________________________
Appeal heard and reasons delivered orally from the bench on August 12, 2005,
at Montréal, Quebec
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Before: The Honourable Justice Lucie Lamarre
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Appearances:
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Agent for the Appellant:
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Lise Wauthier
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For the Respondent:
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Christina Ham, articling student
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____________________________________________________________________
JUDGMENT
The appeal from the determination by which the Minister of National Revenue ("the Minister") revised the amount of the Canada Child Tax Benefit attributable to the Appellant for the period of July 2002 to June 2003 down to zero is allowed, and the determination is referred back to the Minister for reconsideration and another determination on the basis that the Appellant was the eligible individual within the meaning of section 122.6 of the Income Tax Act for the purposes of receiving the Canada Child Tax Benefit during this period.
Signed at Ottawa, Canada, this 18th day of August 2005.
Lamarre J.
Translation certified true
on this 6th day of March, 2006.
Garth McLeod, Translator
Citation: 2005TCC514
Date: 20050818
Docket: 2005-49(IT)I
BETWEEN:
CHRISTIAN MURRAY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Lamarre J.
[1] The issue in this case is as follows: Who was the eligible individual from July 2002 to June 2002 for the purpose of establishing entitlement to the Canada Child Tax Benefit under section 122.6 of the Income Tax Act ("the Act")? Was it the Appellant, the father of the children in question, or was it Louise Mercier, his spouse at the time?
[2] The Appellant had legal custody of his two minor daughters.
[3] The questionnaire filled in by Louise Mercier, and tendered as Exhibit I-1, is contradicted by the testimony of one of the Appellant's daughters. Although she was called as a witness, Ms. Mercier did not appear before the Court and the Respondent's representative did not ask the Court to take any additional measures.
[4] Based on the testimony heard, Ms. Mercier, who was not the children's mother, looked after herself more than she looked after the children. For example, she did not make any medical or dental appointments for the girls. She did not do any activities with the children. She was content to make the meals, and sometimes there was not enough food.
[5] The evidence also shows that she appropriated money from the Appellant's bank account without necessarily giving the children the benefit of that money.
[6] When the father, a trucker, was at home because he did not have to be on the road for work, he was the one with the most concern for his children.
[7] He also provided for their well-being by renting a house and paying an allowance for them. In Exhibit I-1, the questionnaire that he completed for the Canada Customs and Revenue Agency (CCRA) and that is not contradicted by the evidence, it can be seen that he took the children out, brought them to the doctor when necessary, and was concerned that they get proper nutrition.
[8] The evidence also discloses that Ms. Mercier acted fraudulently. She never told Mr. Murray that she was cashing the Canada Child Tax Benefit cheques issued to the Appellant. Mr. Murray says that he gave Ms. Mercier a bank card to withdraw funds from his account for the children. He did not authorize her to deposit cheques that he received, and was not even aware of, on his behalf.
[9] Ms. Mercier exceeded the power of attorney that Mr. Murray had given her.
[10] Unlike the situation in the cases cited by counsel for the Respondent (Healey v. Canada, [2005] T.C.J. No. 184 (QL) and Davies v. Canada, [2000] T.C.J. No. 591 (QL)), the Appellant always resided with his children during the period in issue. It was only in July 2002 that Mr. Murray and Louise Mercier ceased to reside together.
[11] Thus, the children resided with the father and Ms. Mercier during the period in issue. The presumption set out in the definition of "eligible individual" in paragraph 122.6(f) of the Act, namely that the female parent (which can include the natural parent's spouse)[1] is presumed to be the parent who primarily fulfils the responsibility for the care and upbringing of the children, does not apply in prescribed circumstances (according to paragraph (g)). Under paragraph 6301(1)(b) of the Income Tax Regulations ("the Regulations"), if the female parent is a qualified dependent of an eligible individual, and each of them has filed a notice for the Canada Child Tax Benefit, this presumption does not apply.
[12] Ms. Mercier did not work, and had access to the Appellant's bank account; it can be inferred that she was Mr. Murray's dependent. Since the Canada Child Tax Benefit payments were sent to Mr. Murray, and Ms. Mercier made a separate application as well, this opens the door to setting the presumption aside.
[13] Section 6302 of the Regulations contains the criteria for determining who primarily fulfils the responsibility for the care and upbringing of the children. In the particular circumstances of this case, it is my opinion that Mr. Murray supervised the children and looked after their daily needs. Even when he was away working, he maintained regular contact. He was the person who maintained a secure environment for his daughters.
[14] Based on the Appellant's daughter's testimony, it is clear that apart from looking after meals, Ms. Mercier did little to take care of the girls. Rather, she was concerned with her own situation and set the girls against their father. She defrauded the father and showed the girls how to commit fraud by encouraging them to forge their father's signature on the Canada Child Tax Benefit cheques. In my opinion, it is wrong to claim that Ms. Mercier primarily fulfilled responsibility for the care and upbringing of the children. Her approach was clearly not that of a person who is concerned about the well-being of her children.
[15] In my view, the father has succeeded in showing, on a balance of probabilities, that he was primarily responsible for the care and upbringing of his daughters.
[16] I would add that it is always surprising when the CCRA agrees to pay Canada Child Tax Benefits retroactively to an individual who has requested them, and does not do any cross-checking first even though the benefits have already been paid to another individual in respect of the same children and the same period. In the case at bar, Ms. Mercier, who had fraudulently cashed the Canada Child Tax Benefit cheques issued to the Appellant, made a separate request and received the same amount from the federal government a second time - an amount that is now being claimed from the Appellant. It seems to me that this incongruous situation could have been avoided if the CCRA had been a bit more careful.
[17] I would allow the appeal because I find that the Appellant, not Ms. Mercier, was entitled to the Canada Child Tax Benefits during the period in issue.
Signed at Ottawa, Canada, this 18th day of August 2005.
Lamarre J.
Translation certified true
on this 6th day of March, 2006.
Garth McLeod, Translator
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