Brunton v. R., [1996] 1 CTC 2293 (Informal Procedure)

Christie A.C.J.T.C.C.:— This appeal is governed by the informal procedure prescribed by section 18 and following sections of the Tax Court of Canada Act.

The appeal relates to 1992 and the notice of appeal reads:

I am writing to request an informal appeal of the March 20, 1995 decision to deny my eligibility for the child tax benefits from Health and Welfare Canada.

I am the single mother of two children, a boy Jesse Grierson age 9, and a girl Crystal Grierson age 7. When these children were born, I began to receive monthly family benefit cheques from Health and Welfare Canada. In November 1989, I separated from my husband, David George Grierson. At this time, we entered into a bizarre separation and child custody agreement as a result of extremely poor legal counsel. He received custody of the children, while I continued to act as primary care parent full-time in the home, as I had never been employed outside of the home.

I continued to receive family benefit cheques until May of 1990 at which time Mr. Grierson had the cheques redirected to him. In August of 1991, we endured a custody trial which resulted in a joint custody, equal access arrangement whereby the children reside half of the time with their father, and half of the time with me. (Please refer to documentation enclosed for full details of this arrangement.)

Despite this change in custody, Mr. Grierson has continued to receive all of the family benefit cheques since May 1990, and take full advantage of the child tax credit for both children.

As Mr. Grierson remains uncooperative and unwilling to share the benefits fairly with me, and in light of the fact that he receives a 6 figure income, while I remain a welfare recipient (I enclose proof of my social assistance payments, and I am currently in pursuit of child support payments from this man) I have repeatedly applied to Health and Welfare Canada for a change in this very unjust arrangement. At the very least, I feel the cheques should be split in such a way that father receives them for 6 months and mother receives them for 6 months, if not retroactive payment of family benefits and the child tax credit as I am a totally equal access custodial parent and caregiver to these two children.

Over the past 18 months I have applied and reapplied and filled out forms of objection to no avail.

I have been continuously rejected and I am extremely frustrated by this blatant denial of my rights as a joint custodial parent, and by my inability to change anything.

In conclusion, I appeal to your sense of justice in this case, for a fair split of the child tax benefit, and retroactive restitution, as there is no logical reason for anything other than a just outcome of this entirely unfair set of circumstances.

Paragraphs 1 to 8 inclusive of the reply to the notice of appeal read:

1. He admits the copy of the Minutes of Settlement filed with the Ontario Court of Justice (General Division) and the copy of the social assistance payment from Metro Community Services attached to the Notice of Appeal.

2. He admits that the appellant is a single mother of two children, son name Jesse Grierson, age nine years and daughter name Crystal Grierson, age seven years.

3. He denies all other allegations of fact contained in the appellant’s Notice of Appeal.

4. The appellant filed her income tax return for the 1992 taxation year and declared total income in the amount of $4,158.77.

5. The Minister of National Revenue (the ‘Minister’) assessed the appellant for the 1992 taxation year, Notice of Assessment thereof dated June 4, 1993.

6. In reassessing the appellant for the 1992 taxation year, Notice of Reassessment thereof dated April 21, 1994 the Minister increased the total income to $11,014.00.

7. In so reassessing the appellant, the Minister made the following assumptions of fact:

(a) the facts hereinbefore admitted;

(b) the appellant’s marital status on December 31, 1992, was that of a single divorced person;

(c) the appellant and her ex-husband have joint custody of their two children;

(d) the appellant is not the primary caregiver to the dependant children;

(e) the appellant does not primarily fulfil the responsibility for the care and upbringing of the dependant children;

(f) pursuant to section 122.62 of the Income Tax Act the “Act”), the Department of National Health and Welfare has determined that the appellant is not an eligible individual for purposes of claiming the Child Tax Benefit.

B. ISSUES TO BE DECIDED

8. The issue is whether the appellant is entitled to claim the Child Tax Benefit in the 1992 taxation year.

Exhibit A-l is an Order made August 6, 1991, by Mr. Justice Walsh of the Ontario Court of Justice (General Division) pursuant to Minutes of Settlement of the same date entered into between the appellant and her former husband. It includes a “split time arrangement” pertaining to their children. Details of this are well known to both parties.

The appellant and her former husband testified at trial. My conclusion in relation to the whole of the evidence is that the appellant is not entitled to the claimed child tax benefit in respect of 1992. In this regard I am satisfied that what is said in subparagraphs (d) and (e) of paragraph 7 of the reply to the notice of appeal has been established on a balance of probability.

It follows that the appeal cannot succeed and judgment shall issue accordingly.

Appeal dismissed.