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Citation: 2004TCC1
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Date: 20040114
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Docket: 2003-723(IT)I
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BETWEEN:
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DEBORAH BACHAND,
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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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REASONS FOR JUDGMENT
O'Connor, J.
[1] The issue in this appeal relates
to whether the Appellant is entitled to certain Child Tax
Benefits. The basic facts and issues are set forth in the
following paragraphs of the Reply to the Notice of Appeal.
5. By CTB
Notices dated June 20, 2002, the Minister of National Revenue
(the "Minister") informed the Appellant that with
respect to the 1999 and 2000 "base taxation years", it
had been re-determined that the amount of Child Tax Benefits she
had received in regard to the said "base taxation
years" had been overpaid by the amounts of $156.25 and
$1,991.00 respectively.
6. In so
re-determining the Appellant's Child Tax Benefits
("CTB") for the 1999 "base taxation year" and
2000 "base taxation year" on June 20, 2002, the
Minister relied on the following assumptions of fact:
a) at all
material times, the Appellant and the Former Spouse, James
O'Dell, (the "Former Spouse") had two children who
were eligible for the CTB, Vinson, born January 25, 1985 (the
"Child") and Daniel born January 1, 1988;
b) the Child
referred to in subparagraph 6(a) herein was a 'qualified
dependant' as defined in subsection 122.5(1) of the Income
Tax Act (the "Act");
c) the
Appellant and Former Spouse separated in 1991 and divorced in
1999;
d) in May,
2001, the Child left the Appellant's home and resided with
the Former Spouse until June, 2002;
e) during the
time frame referred to in subparagraph 6(d) herein, the Child
spent three weeks with the Appellant during July, 2001 but
otherwise resided with the Former Spouse;
f) the
Appellant has not shown that she was the parent of the
'qualified dependant' who was primarily responsible for
the care and upbringing of the 'qualified dependant';
and
g) the
Appellant was not an 'eligible individual' as defined in
section 122.6 of the Act.
B. ISSUES TO BE DECIDED
7. The issue
is whether the Appellant is entitled to receive Child Tax
Benefits in regard to the 1999 "base taxation year" and
2000 "base taxation year" for the period June, 2001 to
June, 2002 inclusively for the Child.
C. STATUTORY PROVISIONS, GROUNDS RELIED ON
AND RELIEF SOUGHT
8. He relies
on sections 122.6, 122.61, subsection 248(1) and paragraph
122.6(h) of the Act under the definition of "eligible
individual" and Regulation 6302 of the Income Tax
Regulations (the "Regulations").
9. He submits
that the Appellant was not an 'eligible individual' as
she did not reside with the 'qualified dependant' during
the period June, 2001 to June, 2002 inclusively and the Appellant
has not established that she was primarily responsible for the
care and upbringing of the Child within the meaning of
section 122.6 of the Act as defined in Regulation
6302 of the Regulations and is therefore not eligible for
the CTB for the Child with respect to the said period in regard
to the 1999 and 2000 "base taxation years" as indicated
in the Child Tax Benefit Notices dated June 20, 2002.
Analysis
[2] The sole issue in this appeal is
whether the Appellant was the eligible individual in respect of
her child, Vinson who was a qualified dependant. The relevant
portion of the definition of eligible individual in section 122.6
of the Act reads:
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,
...
[3] Sections 122.6 to 122.64 of the
Act were enacted in 1992 in order to consolidate the
existing benefits available with respect to certain persons. This
benefit is payable in respect of "qualified
dependants". A qualified dependant must be under 18 at the
relevant time which was indeed the case with Vinson. The benefit
is payable to an "eligible individual". In order to
qualify as an eligible individual, the individual at that time
must (a) reside with the qualified dependant; and (b) be the
parent who primarily fulfils the responsibility for the
child's care and upbringing. In this appeal, it is necessary
for the Appellant to demonstrate that both of the above
requirements have been met.
[4] The Appellant in this case was
represented by Ms. Sonia Levesque-Parsons of West End Legal
Services of Ottawa and considerable testimony was heard with
respect to the Appellant's attention to - Vinson relative to
schools, pharmacies, medical and dental appointments and many
other matters related to Vinson's care. However, it is clear
from all of the testimony that Vinson did not reside with the
Appellant but rather with his father during the relevant period
of June 2001 to June 2002. The Appellant stated this
clearly in her testimony, adding that Vinson never slept at home
during that period. The Appellant attempted to back off by
referring to times Vinson spent in her house and stating she kept
his room for him. However this and the other evidence do not in
my opinion establish residence.
[5] As stated by Bonner J. in
S.R. v. the Queen, Docket: 2003-602(IT)I:
The word "reside" with as used in the section 122.6
definition of the term "eligible individual" must be
construed in a manner which reflects the purpose of the
legislation. That legislation was intended to implement the child
tax benefit. That benefit was introduced in 1993 with a view to
providing a single nontaxable monthly payment to the custodial
parent of a child. That payment was intended to benefit the child
by providing funds to the parent who primarily fulfilled the
responsibility for the care and upbringing of the child. The
threshold test is whether the child resides with the parent.
Physical presence of the child as a visitor in the residence of a
parent does not satisfy the statutory requirement. The word
"resident" as used in s. 122.6 connotes a settled and
usual abode.
[6] It is also been established that
as the father filed an application for the Child Tax Benefit the
female presumption is not applicable.
[7] It was also established that the
father continued to pay child support to the Appellant in respect
of Vinson and another child. Several cheques were filed as
exhibits to establish this fact. However it is clear that the
payment of child support is not sufficient to establish
residence. The fact is that Vinson resided with his father during
the relevant period. Although the Appellant did attend to the
care and needs of Vinson on several occasions that is not
sufficient to establish residence. As mentioned there are two
conditions for entitlement one being residence with the qualified
dependant and the other being the primary caregiver. It may be
possible in certain circumstances to consider the Appellant as
the primary caregiver but even if this is so the residence
requirement was not met and consequently the Appellant is not the
eligible individual.
[8] Consequently the appeal is
dismissed.
Signed at Ottawa, Canada, this 14th day of January 2004.
O'Connor, J.
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