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Citation: 2004TCC519
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Date: 20040722
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Docket: 2003-2961(IT)I
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BETWEEN:
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TUAN HOANG,
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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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[OFFICIAL ENGLISH TRANSLATION]
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REASONS FOR JUDGMENT
Lamarre Proulx J.
[1] This is an appeal from the
determinations of Canada Child Tax Benefit made on November 20,
2002, by the Minister of National Revenue (the "Minister"), with
respect to the Appellant's daughter, Catherine, for the months of
July 2000 to June 2001 for the 1999 base taxation year, and for
the months of July and August 2001, for the 2000 base taxation
year.
[2] The issue at bar is whether the
Appellant was the parent who was the primary caregiver and
educator of her child for the period beginning July 2000 and
ended August 2001.
[3] The Appellant, her father, and her
brother-in-law testified for the Appellant. Mr.
Jean-Guy Blanchard and Catherine Blanchard
testified at the request of the Respondent.
[4] The Appellant and Mr.
Jean-Guy Blanchard are the parents of Catherine, who
was born on April 6, 1987.
[5] With respect to the period at
issue, the following is set out in the Notice of Appeal:
[TRANSLATION]
[...]
The periods beginning August 1999 and ended June 2000, and
beginning August 2000 and ended June 2001, were the periods
during which my daughter started her first two years of high
school in Montréal. Because her father lives in
Montréal, and he is a retired professor, I asked him to
register our daughter for school and to follow up with the
school, because he was available, and I was working all
day. He took this opportunity to claim that he was our
daughter's legal guardian, and he gave the school his address as
the place of residence of my daughter. Nonetheless, I have
always kept my daughter at my place, as usual, at least 80% of
the time. This fact has not changed, and nothing could
change it, even with an absurd decision of the said Tax
Centre.
In her third year of high school, beginning in August 2001, my
daughter went to school in Laval, and, as such, my daughter's
home address was in Laval;
[6] The written testimony at the
hearing reads as follows for the portion covering the period at
issue:
[TRANSLATION]
[...]
In September 1999, Catherine's father and I
agreed to send Catherine to a private school - Collège
Rachel - and to share the expenses.
Because he was retired and lived near Collège Rachel, I
asked him to register Catherine, because I was tied up with my
work at the office. He gave the school his address as
Catherine's address. This detail appeared to me to be
unimportant at the time. In fact, my address was also on
file, and we were both receiving information from the school and
Catherine's report cards.
We also agreed to have Catherine spend one full week at his
place, because it was close to the school, and one full week at
my place. It was easy for me to drop Catherine off at
school in the morning on my way to work and to pick her up on my
way back to take her home. This arrangement continued
through the school holidays, except for summer vacation, and
continued from September 1999 to June 2001, for two school
years, or 22 months.
During the first year, 1999-2000, I paid for all of
Catherine's tuition fees for Collège Rachel by monthly
cheque, for a total of $1,860. Mr. Blanchard later
reimbursed me for half of this amount. We also went to
select Catherine's uniform together.
For the second year, 2000-01, Mr. Blanchard paid for
Catherine's tuition fees for Collège Rachel, and I also
reimbursed him for half of the total amount.
In 1999, Catherine spent approximately 222 days with me
at 117 De Lisieux and 143 days with her
father in Montréal.
In 2000, Catherine spent approximately the same amount
of time with her father as she did with me at De Lisieux -
approximately 182 days with each parent.
[7] The Appellant read her statement,
and this constituted her testimony. In short, she stated
that during the period at issue, she and her daughter's father
had shared custody of their daughter.
[8] She filed a bundle containing five
mailings from Collège Rachel as Exhibit A-45.
Three of the envelopes contained her daughter's report cards for
the 2000-2001 school year. Another envelope contained a
general information notice for the end of the school year.
The fifth letter was dated May 16, 2003, and was signed by the
Director General of Collège Rachel. It reads as
follows:
[TRANSLATION]
Further to your recent request, this is to inform you that we
have established that the contracts for educational services for
1999-2000 and 2000-2001 for Catherine Blanchard-Hoang were duly
completed and signed by Mr. Jean-Guy Blanchard, the father, and
that the student's home address listed in the document is 3555
Berri Street, apartment 805, in Montréal.
During the 1999-2000 and 2000-2001 school years, Catherine
(07-04-1987) resided with Mr. Blanchard. He paid for all
the costs relating to his daughter's education. All
correspondence, authorizations for outings, and notices of
meetings or other events were sent to Mr. Blanchard. If
Catherine was absent or late, we contacted Mr. Blanchard, as
needed, for confirmation and verification.
However, in the section of the contracts for educational
services for 1999-2000 and 2000-2001 reserved for the mother's
information (in this case, your information), the father had
filled in the mother's information, and indicated, in the space
provided for this information, that a copy of any correspondence
and report cards was to be sent to you. This was done
during Catherine's schooling at Collège Rachel.
[9] During his testimony, Mr.
Blanchard explained that, when Catherine started attending
Collège Rachel, the plan was to have shared custody,
whereby Catherine would spend one week at his home and one week
at the Appellant's home. This plan was not carried
out. He lived approximately five minutes' walk from the
school. Catherine, therefore, lived with him most of the
time. He was a retired professor, and he helped her with
her school work. He prepared meals, did laundry, and mended
clothes. He gave Catherine the large bedroom; he slept in
the living room on a sofa bed.
[10] He confirmed that he shared the cost of
the tuition fees with the Appellant.
[11] Catherine was not present at the time
her father gave his testimony. He left the courtroom during
his daughter's testimony. Catherine confirmed that, while
she attended Collège Rachel, she lived with her
father. She would see her mother on some weekends.
She also confirmed that her father did her laundry. She
felt that her father had taken care of everything while she
attended Collège Rachel.
[12] She also confirmed that she had
travelled with her mother and her mother's parents during the
summer vacation.
Conclusion
[13] I have no doubt that the Appellant
loves her daughter very much, but this is to determine which of
the two parents was the primary caregiver of their child during a
given period.
[14] It is my opinion that, on the balance
of probabilities, the father, not the mother, was the primary
caregiver of their child during the period at issue.
[15] The letter from the Director of
Catherine's school explains why the Appellant received copies of
her daughter's report cards. This letter also confirms the
testimony of Mr. Blanchard and of his daughter.
[16] The father and the young girl also
testified. Their testimony corresponded on all points.
[17] As I mentioned during the hearing, it
seems clear that the initial plan was to have shared
custody. However, through a combination of events, this
plan was not, in fact, carried out. What matters in
assessing a parent's eligibility for Child Tax Benefits is what
actually occurred, rather than what could have happened.
[18] Consequently, the appeal must be
dismissed.
Signed at Ottawa, Canada, this 22nd day of July
2004.
Lamarre Proulx J.
Translation certified true
on this 5th day of January 2005.
Colette Dupuis-Beaulne, Translator
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