Hill v. The Queen, 2004 TCC 386 (Informal Procedure)

Citation: 2004TCC386 Date: 20040528 Docket: 2003-3965(IT)I

BETWEEN:

L. CRAIG HILL,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

(delivered orally from the Bench at

Lethbridge, Alberta, on April 17, 2004)

[1]      This appeal pursuant to the Informal Procedure was heard at Lethbridge, Alberta on April 19, 2004. The Appellant testified and called his father, Leo, and his daughter, Joy, as witnesses. The Respondent called his former wife, Margie Spry, to testify.

[2]      The matters in dispute are outlined in paragraphs 1, and 6 to 11, inclusive. They read:

1.          He admits the facts stated in the Notice of Appeal that:

(a)         the Appellant remarried on April 27, 2001;

(b)         Margie is not the natural parent of the children in question;

(c)         the Appellant and Margie separated on April 30, 2002;

(d)         the Appellant was granted the child tax benefit after their separation for four children and then it was reduced to one child in May 2002 and two children in June 2002;

    

(e)         two of the Appellant's children resided with Margie during May and June, 2002;

(f)          the Appellant and Taylor moved in with the Appellant's parents on April 30, 2002;

(g)         Taniel moved in with the Appellant after May 1, 2002;

(h)         Margie moved out after June 1, 2002; and

(i)          the Appellant and the two children moved out of the Appellant's parents' home and back into the Appellant's home with his 4 children.

...

6.          By CCTB notices dated May 20, 2003, the Minister informed the Appellant that:

(a)         with respect to the 2000 base taxation year, more specifically for the month of June 2002, the Appellant was underpaid the CCTB and the NCBS for June 2002 and he was an eligible individual in respect of Taneil and Taylor; and

(b)         with respect to the 2001 base taxation year, more specifically for the month of May 2003 the Appellant was entitled to an amount of $794.90 for the CCTB and the NCNS for the month of May 2003.

7.          By was of letter dated June 12, 2003, the Appellant served on the Minister a Notice of Objection with respect to the CCTB notices dated May 20, 2003 for the 2000 and 2001 base taxation years.

8.          The Minister confirmed the CCTB notices for the 2000 and 2001 base taxation years by means of a Confirmation letter dated July 25, 2003.

9.          On October 6, 2003 a Notice of Appeal was filed with the Tax Court of Canada in respect of the 2000 and 2001 base taxation years.

10.        In so redetermining the Appellant's CCTB and NCBS for the 2000 and 2001 base taxation years and in so confirming those redterminations, the Minister assumed the same facts as follows:

(a)         the Appellant and Margaret Spry (the "Spouse") were married on April 27, 2001;

(b)         the Appellant has four children (hereinafter the "Children"):

                        Name                Date of Birth

                        Joy                    October 18, 1985

                        Rachelle            July 29, 1987

                        Taniel                August 27, 1989

                        Taylor               October 8, 1993

(c)         the Spouse is not the natural parent of the Children;

(d)         the Appellant and the Spouse resided with the Children at 424 Spruce Way in Medicine Hat, Alberta (hereinafter the "Residence");

(e)         the Appellant and the Spouse separated on April 30, 2002;

(f)          on April 30, 2002 the Appellant and Taylor moved out of the Residence;

(g)         after May 1, 2002 Taniel moved out of the Residence;

(h)         the Spouse, Joy and Rachelle continued to reside at the Residence;

(i)          the Spouse moved out of the Residence after June 1, 2002;

(j)          the Appellant, Taniel and Taylor moved back to the Residence after June 1, 2002;

(k)         the Appellant's family net income for the 2000 and 2001 base taxation years was $439.00 and $2,854.00, respectively;

(l)          the base taxation years means the months of:

Base Taxation Year	Months
2000	July, 2001 to June, 2002
2001	July, 2002 to June, 2003

(m)        the Appellant and the Spouse were living separate and apart because of a breakdown of their marriage commencing April 30, 2002;

(n)         both the Appellant and the Spouse fulfilled the responsibility for the case and upbringing of the Children prior to April 30, 2002;

(o)         subsequent to April 30, 2002, the Spouse resided with and fulfilled the responsibility for the care and upbringing of the Children for the following months:

Name of Child	Months
Joy	May and June, 2002
Rachelle	May and June, 2002
Taneil	May, 2002
Taylor	none

(p)         subsequent to April 30, 2002, the Appellant resided with and fulfilled the responsibility for the care and upbringing of the Children for the following months:

Name of Child	Months
Joy	July 2002 to June 2003
Rachelle	July 2002 to June 2003
Taneil	June, 2002
Taylor	May 2002 to June 2003

(q)         the Appellant was in receipt of CCTB and NCBS payments in the amount of $1,544.68 for the 2000 base taxation year for the months of May and June, 2002, as detailed in Schedule A attached to and forming part of the Reply to the Notice of Appeal (hereinafter "Schedule A");

(r)         the Appellant was entitled to CCTB and NCBS payments in the amount of $581.66 for the base taxation year for the months of May and June, 2002, as detailed in Schedule A;

(s)         the Appellant was in receipt of and entitled to CCTB and NCBS payments in the amount of $9,539.00 for the 2001 base taxation year for the months of July, 2002 to June, 2003, as detailed in Schedule A; and

(t)          the Appellant was in receipt of excess CCTB and NCBS payments in the amount of $963.02 for the 2000 base taxation year and none of the 2001 base taxation year.

B.         ISSUE TO BE DECIDED

11.        The issues are:

(a)         whether the Appellant was an eligible individual for:

(i)          Joy, Rachelle and Taneil for the month of May 2002; and

(ii)         Joy and Rachelle for the month of June 2002;

and whether the Appellant is entitled to the CCTB and the NCBS pursuant to section 122.6 of the Act for those qualified dependants in each of the specified months; and

(b)         whether the Appellant was overpaid CCTB and NCBS in the amount of $963.02 for the 2000 base taxation year and nil for the 2001 base taxation year.

[3]      Only assumptions 10 (e), (f), (g), (n) and (o) were refuted by the evidence or require elaboration. The remainder were not refuted.

[4]      The Appellant was at all material times a diagnosed psychiatric depressive who received electric shock treatments. He had not worked for a long time before he married Margie. His previous wife had legal and physical custody of their children. This remained the case when he married Margie on April 27, 2001. Legally it sill remains to be the case.

[5]      Margie had three children by a previous marriage including a son, Mike, and they were in her custody when the couple married.

[6]      Margie's testimony is believed. Where it conflicts with any other testimony, Margie's is accepted as true. The reasons and facts for this finding will come out in the course of the judgment. In particular this relates, in part, to the events between Mike and Craig and the fact that Craig's testimony varied during the course of his rebuttal evidence.

[7]      When they married, Craig's former wife sent their children to live with the new couple and moved to Calgary and then to the United States.

[8]      Craig's parents bought the house at 424 Spruce Way, Medicine Hat, Alberta for this amalgamated family to live in. They lived two blocks away and rented 424 to the couple. Craig slept for long periods due to his illness or to electric shock. At times he slept at his parents. The family income was Craig's Canada Pension Plan, Margie's student loan and Margie's income from counselling at the Church of Jesus Christ of Latter Day Saints. Craig insisted that the money go into a bank account in his name and there is conflicting testimony as to whether it was joint with Margie.

[9]      On or about April 30, 2002 Craig and Mike disagreed. As a result Mike decided to go for a walk, apparently to cool off. Craig refused to allow this and pushed or threw Mike downstairs with such force that Mike's body punched a hole more than a foot in diameter through a hard board plaster wall. Craig then went downstairs and grabbed Mike by the neck to throttle him further. Margie and one of the children went down and piled on in an attempt to pull Craig off Mike. In the course of the day that fallowed this occurrence, the local Mormon bishop ordered Craig to go and stay with his parents for two weeks. Craig did and Taylor went with him.

[10]     However Craig never changed his residence. His residence, legally and factually remained at 424 Spruce Way. That is also true of his children who came and went to their grandparents' home. The grandparents paid all the bills, fed every one who visited there and the children in question came and went but they all went to school from and returned their beds at 424 Spruce Way.

[11]     Craig merely sojourned at his parents until Margie could find a home and move out of 424 Spruce Way with her children. In the meantime, she provided and maintained the home for all the children. Whatever provisions were at the grandparents home were provided by the grandparents as their grandchildren came and went back and forth from 424 Spruce Way.

[12]     Throughout all of this, Margie kept the home for all of the children at 424 Spruce Way and Craig retained his legal and factual residence there, as did his children. The person in custody and control of 424 Spruce Way and the children residing there was Margie at all material times. The children in question continued to reside there with Margie at all material times. That is where their beds and bedrooms, clothing and things were. They went to school from there during school days. Meals were there for them if they wished. The grandparents gave their grandchildren food when they visited the grandparents' home and on weekends they often slept there on the floor or a couch.

[13]     However all of this was merely a temporary provision by Leo and his wife for their sick son, and Craig never provided or paid for anything. He simply stayed with and lived off of his parents in their home, as did the children from time to time; none of them resided there.

[14]     For this reason the appeal is dismissed.

Signed at Ottawa, Canada, this 28th day of May 2004.

"D.W. Beaubier"

Beaubier, J.