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Citation: 2003TCC166
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Date: 20030327
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Docket: 2002-1651(IT)I
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BETWEEN:
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DOUGLAS SAGE,
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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
Little, J.
A. FACTS:
[1] The Appellant and his ex-spouse,
Elizabeth Sage ("Elizabeth"), were married in
Peterborough, Ontario on August 31, 1985.
[2] The Appellant and Elizabeth have
two children, Erik Alexander Sage ("Erik") born
September 15, 1988 and Ryan Stewart Sage ("Ryan") born
February 10, 1990.
[3] The Appellant and Elizabeth
separated on December 26, 1997.
[4] On the 11th day of January 2001
the Supreme Court of British Columbia issued an Order (the
"Order") in which it was stated that the Appellant and
Elizabeth were divorced effective on the 31st day after January
11, 2001.
[5] The Order provided that the
Appellant and Elizabeth would have joint guardianship of Erik and
Ryan.
[6] The Order provided that the
Appellant and Elizabeth would have joint custody of Erik and
Ryan, with Erik and Ryan spending equal time with both the
Appellant and Elizabeth.
[7] The Order provided that for
purposes of responsibility for expenses of Erik and Ryan and for
tax purposes, the principal residence of Erik would be deemed to
be with the Appellant and the principal residence of Ryan would
deemed to be with Elizabeth.
[8] The Order further provided that
neither the Appellant nor Elizabeth would pay child support to
the other and that the principal residence for each child as
designated in the Order would determine which child each spouse
was responsible to pay expenses for. The only exception to this
arrangement is that the orthodontic expenses in respect of both
children would be shared equally by the spouses.
[9] In the 1999 taxation year the
Appellant claimed the equivalent to married tax credit and child
care expenses in respect of Erik and Elizabeth claimed similar
expenses in respect of Ryan.
[10] Prior to December 1998 and in 1999 and
2000 Elizabeth received the Child Tax Benefit (the
"Benefit") in respect of both Erik and Ryan.
[11] In July 2001, the Appellant applied to
receive the Benefit in respect of Erik.
[12] The Appellant was paid the benefit in
respect of Erik for the period from August 2000 to June 2001.
[13] The Benefit in respect of Erik for the
period August 2000 to January 2001 (the "Period") had
already been paid to Elizabeth.
[14] Pursuant to a Notice dated October 19,
2001, the Appellant was advised that since the Benefit in respect
of Erik for the Period had already been paid to an eligible
individual, the Appellant had been overpaid. The Appellant was
also asked to repay the Benefit in respect of Erik for the
Period.
[15] By letter from an official of the
Canada Customs and Revenue Agency dated the 21st day of November
2001, the Appellant was advised that he was the person who would
receive the Benefit in respect of Erik for the period commencing
February 2001.
B. ISSUE
[16] The issue is whether the Appellant is
entitled to the Benefit in respect of Erik for the Period.
C. ANALYSIS
[17] Erik is a qualified dependant as
defined in section 122.6 of the Income Tax Act (the
"Act").
[18] The phrase "eligible
individual" is defined in section 122.6 of the Act as
follows:
"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,
...
[19] The evidence provided by Douglas and
Elizabeth regarding the party who primarily fulfilled the
responsibility for the care and upbringing of Erik during the
Period was contradictory since Douglas claimed that he was
primarily responsible for Erik during the Period and Elizabeth
claimed that she was primarily responsible for Erik during the
Period. Elizabeth stated that after the Court Order of January
11, 2001 Douglas assumed primary responsibility for Erik.
[20] In order to resolve this issue I must
analyse the evidence.
[21] Elizabeth stated categorically that
after the separation and prior to the Order she paid the majority
of the expenses for the children including the mortgage expenses
before the family home was sold.
[22] The Appellant was somewhat vague on the
family expenses that he paid after the separation and prior to
the Order. For example, he was only able to make a rough estimate
of his contribution to the mortgage expense after the
separation.
[23] I have concluded, on a balance of
probability, that the evidence of Elizabeth is to be preferred
and I find that Elizabeth was primarily responsible for the care
and upbringing of Erik during the Period.
[24] Before concluding my comments, I wish
to state that I was impressed with the comments made by Douglas
and Elizabeth in their attempt to provide Erik and Ryan with a
stable and loving relationship.
The
appeal is dismissed, without costs.
Signed at Vancouver, British Columbia, this 27th day of March
2003
J.T.C.C.
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