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Citation:
2004TCC314
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Date: 20040518
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Docket: 2003-3231(IT)I
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BETWEEN:
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ERIC SCHREINER,
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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
Sheridan, J.
[1] This is an appeal from the
Minister's determination that for the base years 2000, 2001 and
2002, Mr. Eric Schreiner was not an "eligible
individual" within the meaning of section 122.6 of the
Income Tax Act. Mr. Schreiner and his former spouse,
Nadine Schreiner, are the parents of Jessica, a "qualified
dependant" under the section.
[2] This is not the first time this
Court has been asked to decide which of the Schreiner parents is
an "eligible individual"[1]. In a decision dated February 11,
2003, Ms. Schreiner was found to be an "eligible
individual" for the period July, August and September, 2001
of Base Year 2000. Although the Minister called
Mr. Schreiner as a witness in that appeal, for reasons not
known to this Court, the Minister did not seek to join him as a
party under section 174 of the Income Tax Act. Following
the decision in that appeal, the Minister ceased the payment of
the Child Tax Benefit to Mr. Schreiner and assessed him for
the amounts that should have been paid to Ms. Schreiner. Mr.
Schreiner objected to this change and it is from the
Minister's confirmation that he now appeals. In this appeal,
although the Minister called Ms. Schreiner as a witness, he did
not seek to join her as a party.
FACTS
[3] Mr. Schreiner works in a watch
repair shop in Saskatoon. He and Jessica's mother, Ms. Schreiner,
were married in 1983, separated in 1998 and divorced in June
2000. Jessica was born in 1988 and, at the time of this hearing,
was 15 years old. Ms. Schreiner, who works part-time at City
Hall, was initially granted interim custody of Jessica. In 2001,
this was changed when Mr. Schreiner and Ms. Schreiner
consented to an Order whereby Jessica would "reside with her
father, and spend significant and meaningful amounts of time with
her mother". Pursuant to the Order, in every 14-day
rotation, Jessica is with her father for 8 days and her mother
for 6. Because of the hostility between them, Mr. Schreiner
and Ms. Schreiner adhere, with a certain ferocity, to this
schedule. Their bitterness towards each other manifested itself
at the hearing. As Mr. Schreiner began his testimony,
Ms. Schreiner interrupted the proceedings with a loud
outburst. Similarly, when Ms. Schreiner was presenting her
evidence, Mr. Schreiner reacted to her version of events by
grimacing, shaking his head and so on.
[4] On the positive side, both parents
demonstrated that they care about and for their daughter, who
returns their affection in equal measure. Both have modest
incomes, making providing for Jessica's needs a constant
struggle. Because Jessica is with each parent about the same
amount of time, there is an almost equal burden on each parent's
fiscal means. In view of this, the sensible thing would have been
for Mr. Schreiner and Ms. Schreiner to apply to have the
Child Tax Benefit divided between them. Sharing the Child Tax
Benefit is permissible and requires nothing more than the
attachment to the parents' applications of their signed written
agreement to have the Child Tax Benefit paid for six months to
one parent and six months to the other.
ANALYSIS
[5] It is regrettable that the
legislation does not permit the Court to impose a distribution
between the parents of the Child Tax Benefit[2]. Because it does not, only one
of the parents can be an "eligible individual" "at
any time". In determining whether a person qualifies as an
"eligible individual", the two key issues are whether
the child resides with the parent and which of the parents
fulfils the role, at any given time, of primary caregiver. In
assessing this latter condition, the Court must consider, but is
not limited to[3],
the factors set out in section 6302 of the Regulations:
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 dependant 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.
Base Years 2000 and 2001
[6] The dissention between the parents
severely limited the reliability of their evidence. Except for
their assertions regarding their love for Jessica, I gave little
weight to much of what either of them said. Tested against the
criteria set out in section 6302, the evidence shows that, for
the Base Years 2000 and 2001, each parent played an equal role in
the factors set out in section 6302 (a) to (g).
[7] Regarding section 6302(h),
however, that equilibrium is disturbed. The Order of the Court of
Queen's Bench of Saskatchewan-Family Law Division dated August
22, 2001 is valid in Saskatchewan where Jessica resides, pursuant
to its terms, with her father. In each 14-day period, she rotates
between her parents' homes. She has a fully equipped bedroom of
her own at each residence. Nonetheless, the Court Order speaks of
Jessica's "residing with" her father and "spending
time with" her mother, a small but important distinction.
The Order brought about a change in Jessica's residency which,
pursuant to the Interim Custody Order, had been at her mother's
home. It also changed the number of days Jessica spent with each
parent: the time with her father was increased to 8 days and
reduced to 6 with her mother. Jessica's parents jealously guarded
the time allocated to them under the Order. In her testimony, Ms.
Schreiner expressed her resentment over the guitar lessons
Mr. Schreiner had arranged to take with Jessica because they
occurred on a Tuesday, "her night" with Jessica. She
refused to drive Jessica to these sessions with
Mr. Schreiner.
[8] I find that for the Base Years
2000 and 2001, each parent played an equal role in factors
(a) to (g) in section 6302. For factor (h),
however, I find that the Order requiring Jessica to reside with
her father for 8 of every 14 days tips the balance slightly in
favour of Mr. Schreiner. Accordingly, I find that he was the
"eligible individual" and entitled to receive the Child
Tax Benefit for the periods and in the amounts set out below:
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Base Year 2000 July 2001 - September
2001
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$553.81
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Base Year 2000 October 2001-
June, 2002
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$1,661.42
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Base Year 2001 July 2002 - June
2003
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$2,444.00
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Base Year 2002
[9] For the Base Year 2002, it is my
view on the evidence presented that Mr. Schreiner was not
the "eligible individual". By that time, Jessica had
turned 15 and circumstances had changed regarding the level of
her dependency on each parent. While still residing with her
father, Jessica was beginning to have a little more reliance on
her mother. In particular, the evidence going to section
6302(f) "the hygienic needs of the qualified
dependent on a regular basis" and section 6302(g)
"the provision, generally, of guidance and companionship, to
the qualified dependent" slightly outweigh section
6302(h), the "Court Order" factor, for this
period. At her present age, Jessica is quite naturally more
disposed to discuss section 6302(f) matters with her
mother. As for section 6302(g), Mr. Schreiner pointed out
that a teenaged girl is not likely very interested in going
clothes shopping or to the beauty salon with her dad in tow. For
her part, Ms. Schreiner testified to her spending time with
Jessica in such activities and engaging with her daughter in what
used to be described, in a less politically correct era, as
"girl talk". As was the case for Base Years 2000 and
2001, each parent played an equal role for factors (a) to
(e) of section 6302. The difference arises in factors (f)
and (g) which tip the balance slightly in favour of Ms.
Schreiner as the "eligible individual" for the period
July 2003 to October 2003.
[10] The appeal is allowed and the
determination is sent back to the Minister for redetermination in
accordance with the attached Reasons.
Signed at Ottawa, Canada, this 18th day of May 2004.
Sheridan, J.
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