REASONS
FOR JUDGMENT
Jorré J.
[1]
The appellant appeals from redeterminations in
respect of the Canada Child Tax Benefit.
[2]
I would note first that I agree with the
Minister of National Revenue that to the extent that the appellant’s appeal
relates to the Universal Child Tax Benefit pursuant to the Universal Child
Care Benefit Act and to the Ontario Child Benefit pursuant to Ontario legislation, I have no jurisdiction to deal with those benefits.
[3]
The Minister has determined that the appellant
was not eligible to receive the Child Tax Benefit in respect of children “S” and
“Z” between the time of the application in June 2008 and July 5, 2010 when she
immigrated to Canada.
[4]
The Minister accepts that the appellant is
eligible in respect of her child “S” as of July 5, 2010.
[5]
The appellant does not dispute that she was not
eligible to receive the Child Tax Benefit prior to July 5, 2010. In her notice
of appeal and at the hearing she did not raise any issues with respect to the
period after July 4, 2010.
[6]
One of the requirements to be eligible to
receive the Child Tax Benefit is that the “eligible
individual” as defined in section 122.6 of the Income Tax Act
must be a resident of Canada. Prior to July 5, 2010 the appellant clearly
resided in China and only came to Canada for less than one month in June 2008.
[7]
What the appellant seeks in this Court is not a
variation of the determination but, as set out in the heading of her notice of
appeal, that Li Yue, her husband at the time, should pay the amount owing to
the Canada Revenue Agency.
[8]
In support of this the appellant testified as follows:
When she came to Canada in 2008 it is her then husband who persuaded her to
sign the application form for the Child Tax Benefit. The same day that she
signed the form she changed her mind and asked her husband not to send it in
but he sent it in anyway without telling her. The Child Tax Benefit was paid
into the joint account with her husband. Although she could access the account
from China, she did not, she had no idea that the Child Tax Benefit was being
paid into the account and her husband is the one who took the child benefit
money from the account. In support of this last statement, Exhibit A-1 was
filed.
[9]
As a result, the appellant says that her husband
should have to pay the amount owing or, alternatively, they should both share
the burden of paying.
[10]
I do not accept the appellant’s testimony that
she was unaware that the Child Tax Benefit was being received in the joint
account for the following reason.
[11]
The appellant filed a divorce agreement made in
the Guangzhou Notary Public Office in China, together with an English
translation. The agreement is signed July 17, 2009 and is between the appellant
and her husband, Li Yue. In the agreement, they agree to divorce and, among
other things, the agreement provides the following:
Bank deposit: Each party’s
own bank deposit will be owned by each party. In reference to our bank deposit
maintained in both parties’ names (joint account), some bank deposit in our
joint account is the allowance to the eldest daughter “Z” (the daughter given
birth to by the male party’s ex-wife and male party) given according to Canada laws and regulations will be owned by the male party. The rest bank deposit in our
joint account will be owned by the female party.
[12]
Given the above statement in the 2009 divorce
agreement with her ex‑husband and given that she signed a child benefit
application for both children, I do not believe her evidence that she did not
know the child benefit was being paid. Not only does the document show she was
aware, it also shows she agreed with her husband on the disposition of the
funds.
[13]
As a result I conclude that the appellant was a
knowing participant in claiming the Child Tax Benefit.
[14]
In any event, the narrow issue before me is the
following: Was the Minister wrong in concluding that she was not entitled to
the Child Tax Benefit prior to July 5, 2010? The answer is clear, the appellant
was not eligible. She did not reside in Canada and therefore could not be an “eligible individual”.
[15]
The appeal is dismissed.
Signed at Ottawa, Ontario, this 9th day of May 2014.
“Gaston Jorré”
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