BETWEEN:
BERND STRUCK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
(Delivered orally from the bench on
October 8, 2015, in Victoria, British Columbia.)
V.A. Miller J.
[1]
The Minister of National Revenue (the
“Minister”) determined that the Appellant was not entitled to the Canada Child
Tax Benefit (“CCTB”) for the 2012 base taxation year (July 2013 to June 2014)
and that he had received a deemed overpayment of $1,433. The Minister also
determined that the Appellant was not entitled to the Goods and Services Tax
Credit (“GSTC”) for the 2012 base taxation year (quarterly period July 2013 to
June 2014) and that he had received a deemed overpayment of $404. The Appellant
has appealed those determinations.
[2]
The issue in this appeal is whether the
Appellant was the “eligible individual” to receive the CCTB and the GSTC for
his child, S.S., (the “Child”) during the period July 2013 to June 2014.
Facts
[3]
The Appellant and Lisa Morris, his former
spouse, testified at the hearing. I found both witnesses to be credible and for
the most part, there was no disagreement between their evidence.
[4]
Lisa Morris is the mother of the Child. The
Child was born on November 19, 2001. The Appellant testified that he and
Lisa Morris separated prior to the birth of their Child.
[5]
In 2003, the Provincial Court of British
Columbia (Family Court) ordered that the Appellant was to have sole custody of
the Child with Lisa Morris having “generous access” to the Child. By a “Final
Order” dated May 23, 2014, Judge Quantz of the Provincial Court of British
Columbia basically confirmed the custody and access provisions of the order
from 2003 and he ordered that the parties shall not make any applications
regarding “parenting time” until they have attended mediation.
[6]
According to the Appellant, Judge Quantz
interviewed the Child and told both parents that the Child could choose where
she wanted to live.
[7]
In May 2013, Lisa Morris moved from Parksville
to Saanichton where the Appellant lived so that she could have greater access
to her Child. She moved within walking distance to the Appellant’s home. It was
the Appellant’s evidence that he has allowed S.S. to choose if she lives with
him or her mother.
[8]
He testified that during the relevant period,
the Child lived at her mother’s home the majority of the time. Lisa Morris
testified that the Child lived with her more than 75% of the time during the
relevant period.
The Law
[9]
The definition of “eligible individual” for the
CCTB is given in section 122.6 of the Income Tax Act. It reads:
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 a parent
of the qualified dependant who
(i) is the parent who primarily fulfils the responsibility for the
care and upbringing of the qualified dependant and who is not a shared-custody
parent in respect of the qualified dependant, or
(ii) is a shared-custody parent in respect of the qualified
dependant,
(c) is resident
in Canada or, where the person is the cohabiting spouse or common-law partner
of a person who is deemed under subsection 250(1) to be resident in Canada
throughout the taxation year that includes that time, was resident in Canada in
any preceding taxation year,
(d) is not
described in paragraph 149(1)(a) or 149(1)(b), and
(e) is, or whose
cohabiting spouse or common-law partner is, a Canadian citizen or a person who
(i) is a permanent resident within the meaning of subsection 2(1) of
the Immigration and Refugee Protection Act,
(ii) is a temporary resident within the meaning of the Immigration
and Refugee Protection Act, who was resident in Canada throughout the 18
month period preceding that time,
(iii) is a protected person within the meaning of the Immigration
and Refugee Protection Act,
(iv) was determined before that time to be a member of a class
defined in the Humanitarian Designated Classes Regulations made under
the Immigration Act,
and for the
purposes of this definition,
(f) where the
qualified dependant resides with the dependant’s female parent, the parent who
primarily fulfils the responsibility for the care and upbringing of the
qualified dependant is presumed to be the female parent,
(g) the
presumption referred to in paragraph 122.6 eligible individual (f) does not
apply in prescribed circumstances, and
(h) prescribed
factors shall be considered in determining what constitutes care and upbringing;
[10]
For the purposes of paragraph (f) and (g) of the
definition, section 6301 of the Income Tax Regulations provide:
(1) For the
purposes of paragraph (g) of the definition “eligible individual” in section
122.6 of the Act, the presumption referred to in paragraph (f) of that
definition does not apply in the circumstances where
(a) the female
parent of the qualified dependant declares in writing to the Minister that the
male parent, with whom she resides, is the parent of the qualified dependant
who primarily fulfils the responsibility for the care and upbringing of each of
the qualified dependants who reside with both parents;
(b) the female
parent is a qualified dependant of an eligible individual and each of them
files a notice with the Minister under subsection 122.62(1) of the Act in
respect of the same qualified dependant;
(c) there is more
than one female parent of the qualified dependant who resides with the
qualified dependant and each female parent files a notice with the Minister
under subsection 122.62(1) of the Act in respect of the qualified dependant; or
(d) more than one
notice is filed with the Minister under subsection 122.62(1) of the Act in
respect of the same qualified dependant who resides with each of the persons
filing the notices if such persons live at different locations.
[11]
The prescribed factors for paragraph (h) are given
in section 6302 of the Income Tax Regulations as follows:
6302 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.
Analysis
[12]
Paragraph (a) of the definition of “eligible
individual” requires that the person “reside” with the Child during the
relevant period. The word “reside” usually means “to live in the same house
as”: Burton v R, [2000] 1 CTC 2727(TCC). In the context of section
122.6, the word “resides” has been interpreted to connote “a settled and usual
abode”: R(S) v R, 2003 TCC 649 or to habitually live with. During the
period July 2013 to June 2014, the evidence established that the Child lived
with Lisa Morris more than 75% of the time. It is my view that the Child
resided with Lisa Morris during the relevant period.
[13]
According to paragraph 122.6(b), the “eligible
individual” is the parent of the Child who “primarily fulfils the
responsibility for the care and upbringing” of the Child. I have concluded from
the evidence that both parents contributed to the care and upbringing of their
Child during the period. They both cared for her and spent time with her. They
both attended to her medical needs. However, because the evidence has established
that the Child resided with her mother during the period, it is my view that
the presumptions in paragraph 122.6(f) applies to the facts of this case. I
have concluded that Lisa Morris primarily fulfilled the responsibility for the
care and upbringing of the Child during the period.
[14]
It was the Appellant’s position that he was the
“eligible individual” because he had sole custody of the Child. I agree that he
had sole custody. However, this is but one of the factors that must be
considered when determining what constitutes care and upbringing of the Child
for the purposes of paragraph (h) of the definition of “eligible individual”.
It is not a determinant factor: Delage v Canada, 2009 TCC 119 at
paragraph 11.
[15]
In conclusion, Lisa Morris was the “eligible
individual” during the period July 2013 to June 2014 and she was entitled to
receive the CCTB and the GSTC for that period. The appeal is dismissed.
Signed at Ottawa, Canada, this 8th day of December 2016.
“V.A. Miller”
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