Beaubier
J.T.C.C.:
—
This
appeal
was
heard
at
Saskatoon,
Saskatchewan
on
June
26,
1996
pursuant
to
the
Informal
Procedure.
The
Appellant
and
her
former
husband,
Joseph
Larry
Elder,
both
testified.
The
Appellant
was
disallowed
the
Child
Tax
Credit
for
1992
respecting
her
three
children.
She
appealed.
The
assumptions
contained
in
the
Reply
read:
In
so
reassessing
the
Appellant,
the
Minister
made
the
following
assumptions
of
fact:
(a)
the
Appellant
is
known
as
Caroline
Elder
and
Caroline
Elder
Tod
and
Carolyne
Fay
Elder.
(b)
the
Appellant
was
married
to
Joseph
Larry
Elder
on
July
13,
1974
and
ceased
to
cohabit
with
Joseph
Elder
on
or
about
October
1,
1992.
(c)
the
Appellant
and
Joseph
Elder
have
three
children
as
follows:
Name/Date
of
Birth
Tyler:
December
2,
1982
Tyson:
May
5,
1980
Kristopher:
February
1,
1979
(d)
The
children
listed
in
(c)
above
stayed
with
Joseph
Elder
at
the
date
of
separation
and
after
the
date
of
separation
and
he
had
custody
and
was
primary
care-giver
of
these
children.
(e)
During
the
1992
Taxation
year
the
Appellant
did
not
have
an
Eligible
Child
for
which
the
Appellant
was
entitled
to
receive
the
Child
Tax
Credit.
(f)
The
Appellant
was
not
entitled
to
receive,
in
January
of
1993,
a
family
allowance
under
the
Family
Allowance
Act,
1973
in
respect
to
Tyler,
Tyson
or
Kristopher.
Subparagraphs
(a)
and
(c)
of
the
assumptions
are
admitted.
The
crux
of
the
issue
is
who
had
custody
of
the
children
in
December,
1992
pursuant
to
paragraph
122(2)(a)
of
the
Income
Tax
Act
as
it
read
for
that
time
period.
Ms.
Tod
moved
out
of
the
marital
home
on
November
14,
1992.
She
moved
into
her
parents’
home
near
Asquith.
The
children
went
back
and
forth
to
each
home,
using
their
school
bus
as
the
means
of
transit.
Mr.
Elder
testified
that
they
agreed
with
their
mother
where
they
would
stay
from
time
to
time.
However
the
children’s
personal
effects
were
at
the
Elder
home.
The
oldest
boy,
Kristopher,
babysat
a
local
boy
both
before
and
after
school
each
day
during
this
period.
On
December
20,
1992,
the
Appellant
moved
back
into
the
family
home.
But
she
spent
Christmas
with
friends
in
British
Columbia.
On
January
3,
1993
she
moved
out
again.
On
January
31,
1993
the
Appellant
wrote
Revenue
Canada
and
stated
that
thereafter
Joseph
Elder
should
receive
the
Child
Tax
Credit.
Mr.
Elder
testified
that
he
made
medical
and
other
appointments
for
the
children
and
that
about
all
of
the
time
one
child
was
with
him.
The
Court
finds
that
Mr.
Elder
had
custody
of
Kristopher,
the
oldest
boy
at
all
times
and,
particularly,
throughout
December
of
1992,
since
it
appears
from
the
evidence
that
the
boy
Kristopher
babysat
was
dropped
off
and
picked
up
at
Mr.
Elder’s
home
each
school
day.
The
other
two
children
remain
an
issue.
They
went
back
and
forth
between
their
parents
on
agreement
between
them
and
their
mother,
the
Appellant.
Mr.
Elder
testified
that
he
did
the
children’s
washing
and
arranged
for
any
of
their
medical
appointments
during
the
disputed
period.
There
is
no
evidence
that
the
Appellant
had
a
residence
of
her
own
in
December
of
1992.
Rather,
she
was
a
guest
of
her
parents.
In
essence,
the
agreements
between
the
Appellant
and
the
other
two
children
who
visited
her
were
just
that,
agreements
that
they
would
visit.
The
Appellant
did
not
spend
Christmas
with
her
children.
All
of
these
facts
indicate
to
the
Court
that
the
Appellant
was
not
the
custodial
parent
of
the
children
of
the
marriage
in
December,
1992.
Mr.
Elder
was
the
custodial
parent.
The
children’s
residence
was
Mr.
Elder’s
residence.
Moreover,
he
appears
to
have
exercised
parental
control
over
the
children
throughout
December,
1992.
The
Appellant
has
failed
to
rebut
the
Minister’s
assumptions.
The
appeal
is
dismissed.
Appeal
was
dismissed.
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