|
Citation: 2004TCC35
|
|
Date: 20040113
|
|
Docket: 2002-2758(IT)I
|
|
BETWEEN:
|
|
KIMBERLEY MONK,
|
|
Appellant,
|
|
and
|
|
|
|
HER MAJESTY THE QUEEN,
|
|
Respondent.
|
REASONS FOR JUDGMENT
McArthur J.
[1] This appeal is from a child tax
benefit determination for the 1998 and 1999 base taxation years.
The Minister of National Revenue determined that the Appellant
was not entitled to the benefit for the period March 1, 1999 to
February 28, 2001 on the basis that she was not the primary
caregiver for Mitchell and Logan ("the children")
during that period. This was a highly emotional hearing and the
parties agree that the period in question is in fact December 1,
1999 to November 30, 2000. The Respondent having agreed that the
Appellant is the eligible individual from July to November
1999.
[2] Mitchell and Logan were born in
1993 and 1994, from a common-law relationship between the
Appellant and Robert Monk. They separated in 1994 and in December
of that year, the Family Court of Nova Scotia issued a Varied
Consent Order[1]
giving the Appellant sole custody of both children.
[3] On November 20, 2000, the same
Court issued an Interim Variation Order[2] providing for the children to live
with their father, Robert, through the week, with weekend
visitation rights to the Appellant.
[4] Subsequent to her relationship
with Robert, the Appellant married his cousin, Richard Monk with
whom she had three more children. During the fall of 1999, the
Appellant who was living in Dartmouth, went through difficult
times and both she and Robert agreed it was in the children's
best interests to live with their father in Ship Harbour until
she became emotionally and physically able to renew her custody.
The children were transferred from Bicentennial School in
Dartmouth to Harbourside Elementary School in Ship Harbour.
Within two weeks (December 1999), Kim and Richard, and their
other three younger children moved to Lake Charlotte, about
10 minutes away from Mitchell and Logan in Ship Harbour, who
were residing with their father in his parents' (Tom and
Margaret) four-bedroom home. This permitted Kim to be close to
the children.
[5] In the spring of 2000, the
Appellant, Richard, and their three children moved into a small
house[3] within 500
feet of where Mitchell and Logan resided. The Appellant remained
there until the end of the period in question.
[6] The following is a brief
description of the persons referred to:
(i) Kim Monk, the
Appellant, mother of Mitchell an Logan born in 1993 and 1994;
(ii) Robert Monk, father of
Mitchell and Logan;
(iii) Tom and Margaret Monk, father
and mother of Robert and paternal grandparents of the
children;
(iv) Joseph M. Monk, brother of
Tom Monk and father of Richard Monk;
(v) Richard Monk, now the husband of
Kim and father of Joseph, Kalen and David, who have no interest
in the present appeal; and
(vi) Anna Mae Conrad, the
children's teacher at Ship Harbour Elementary School.
All of the above testified except for Richard Monk.
[7] The facts, as I find them, boil
down to the following. During the first six months of the
relevant year, the children resided most weekdays in the home of
their paternal grandparents, where their father also resided.
Every week they resided two or three nights with the Appellant.
While in Charlotte Lake, from December 1999 to May 2000, the
Appellant would take care of her children after school from
2:30 p.m. until 6:00 p.m., when after supper they would
be taken by Tom or Robert, to their grandparents' home. The
Appellant would, perhaps twice during the week, on school days,
go and bathe them and put them to bed. Joseph Monk testified that
his brother Tom, who was on a disability pension, spent more time
with the children than his son Robert.
[8] Having heard several witnesses, I
have no doubt that Tom was an extraordinary grandfather. During
the school's weekdays, he fed, bathed, played with the
children and put them to bed. His wife Margaret and son Robert
both worked outside the home and did not have the free time Tom
did. On some weekday evenings, Robert spent time with his
children and put them to bed. He also attended parents'
school interviews.
[9] In June 2000, the Appellant and
her family moved to Ship Harbour within a stone's throw of
Tom's home to be closer to her children. Robert had a
full-time job. The Appellant was a stay-at-home mother.
During the summer months, the Appellant's five children
played together and she looked after them, almost exclusively,
during the day. Because her home was small and lacked facilities,
the children bathed and slept in their grandparents' home.
Richard's parents, John and his wife, took the three younger
children to their Dartmouth home almost every weekend. They also
were dedicated grandparents.
[10] Tom continued generously devoting time
to the children through the period in question. Robert did what
he could but remained very busy in his small newspaper business
and as a school board trustee. Miss Conrad, the children's
teacher, testified she had more contact with Robert than with
Kim.
[11] Until the fall of 2000, the primary
caregivers, Kim, Robert and Tom, interacted in harmony placing
the children's best interests ahead of anything else. The
children and in particular, Mitchell, were not easy to handle and
all three attended to the children in their own way, as best they
could. Both Kim and Tom had more time to give than Robert.
[12] From December 1, 1999 to May 31, 2000,
the children slept more frequently at Tom's than at Kim's
home. From June to November 2000, the Appellant spent more time
with the children than Tom and Robert combined. They resided with
Kim during the day and slept at Tom's more often (four or
five times a week).
[13] Kim's husband, Richard, is a
carpenter and he built an addition to their very modest home,
which provided sleeping accommodation but no water
facilities.
[14] Kim was very emotional while
testifying. Robert's evidence was more articulate and more
focused on showing himself in the best light. I find as a fact
that from December 1, 1999 to May 31, 2000, the paternal
grandparents and Robert were the primary caregivers and from June
1 to November 30, 2000, the Appellant was the primary
caregiver.
[15] Section 122.6 of the Income Tax
Act defines "eligible individual" in part as
follows:
122.6 In this subdivision
"eligible individual" in respect of a qualified
dependant at any time means a person who at that time
(a) resides with
the qualified dependant,
(b) is the
parent of the qualified dependant who primarily fulfils the
responsibility for the care and upbringing of the qualified
dependant ...
Also, Regulation 6302states:
6302 For the purposes of paragraph
(h) of the definition "eligible individual" in
section 122.6 of the Act, the following factors are to be
considered in determining what constitutes care and upbringing of
a qualified dependant:
(a) the
supervision of the daily activities and needs of the qualified
dependant;
(b) the
maintenance of a secure environment in which the qualified
dependant resides;
(c) the
arrangement of, and transportation to, medical care at regular
intervals and as required for the qualified dependant;
(d) the
arrangement of, participation in, and transportation to,
educational, recreational, athletic or similar activities in
respect of the qualified dependant;
(e) the
attendance to the needs of the qualified dependant when the
qualified dependant is ill or otherwise in need of the attendance
of another person;
(f) the
attendance to the hygienic needs of the qualified dependent on a
regular basis;
(g) the
provision, generally, of guidance and companionship to the
qualified dependant; and
(h) the
existence of a court order in respect of the qualified dependant
that is valid in the jurisdiction in which the qualified
dependant resides.
[16] Stone J. stated in R. v.
Marshall:[4]
This section (122.6) of the Act contemplates only one
parent being an "eligible individual" for the purpose
of allowing the benefits. It makes no provision for prorating
between two who claim to be eligible parents. Only Parliament can
provide for a prorating of benefits but it has not done so.
[17] The eligibility of a parent claiming
the child tax benefit is to be determined at any particular time.
Although the benefit cannot be prorated between Robert and Kim, a
determination must be made at a particular time and not on a
yearly basis. When a parent fulfills the criteria of
Regulation 6302 over a significant period of time, in this
case six months, that parent is in that period an "eligible
individual" contemplated in subsections 122.61 and
122.62.
[18] The Appellant was the eligible
individual in respect of Mitchell and Logan from June 1 to
November 30, 2000 as she resided with them and was the parent who
primarily fulfilled the responsibility for their care and
upbringing as defined in section 122.6.
[19] The appeal is therefore allowed and as
agreed by the Respondent, the determination for the 1998 base
taxation year is referred back to the Minister for
reconsideration and reassessment on the basis that the Appellant
was the eligible individual within the meaning of section 122.6
of the Act for the five-month period July to
November, 1999 for her son, Mitchell. In addition, I find that
the appeal for the 1999 base taxation year will also be allowed
and referred back to the Minister on the basis that the Appellant
was the eligible individual for the six-month period June 1 to
November, 2000 for her sons, Mitchell and Logan.
Signed at Ottawa, Canada, this 13th day of January, 2004.
McArthur J.
Email this Content