Tremblay
J.T.C.C.:
—
This
appeal
was
heard
under
the
informal
procedure
at
Québec,
Quebec
on
January
8,
1996.
1.
Point
at
Issue
According
to
the
notice
of
appeal
and
the
amended
reply
to
the
notice
of
appeal,
the
point
at
issue
is
whether
the
appellant
is
an
individual
eligible
for
the
child
tax
benefit
for
the
1992
base
taxation
year.
According
to
the
respondent,
the
appellant
has
lived
apart
from
his
former
spouse
Dominique
Côté
since
December
20,
1991.
According
to
the
information
received
from
the
Income
Security
Programs
Division
of
Health
and
Welfare
Canada,
the
appellant
is
not
an
individual
eligible
for
this
benefit.
2.
Facts
Adduced
in
Evidence
2.01
The
evidence
showed
that,
pursuant
to
an
interim
order
by
the
Quebec
Superior
Court
dated
December
18,
1991
(Exhibit
I-2)
and
a
judgment
of
February
10,
1992
(Exhibit
1-1)
rendered
by
the
same
Court
on
a
motion
for
interim
relief
as
part
of
a
divorce
action
and
pursuant
to
the
testimony
of
the
appellant
and
his
former
spouse
Dominique
Côté,
the
appellant
and
Dominique
Côté
did
in
fact
leave
each
other
on
December
20,
1991.
2.02
Prior
to
February
1993,
the
appellant
had
to
pay
$800.00
a
month
for
the
mortgage
on
the
family
home
and
$125.00
a
week
for
support.
Then
in
February
1993,
that
is
after
the
sale
of
the
house,
the
support
was
reduced
to
$178.00
a
month.
According
to
the
appellant,
he
incurred
debt
of
$10,000.00
in
order
to
meet
his
obligations
during
1992.
2.03
The
appellant
and
Dominique
Côté
have
two
children
currently
10
(Bernard)
and
13
(Caroline)
years
of
age.
With
respect
to
their
custody
in
1992,
Ms.
Côté
had
custody
of
them
four
days
a
week,
that
is
from
Sunday
evening
to
Thursday
evening,
and
the
appellant
the
other
three
days
of
the
week
until
the
end
of
the
school
year.
During
vacations,,
each
of
the
parents
had
custody
alternating
every
two
weeks.
Starting
on
August
30,
each
parent
had
custody
alternating
every
week.
This
alternating
custody
continued
in
1993,
1994
and
1995.
2.04
Following
the
evidence,
the
appellant
filed
the
following
letter
(Exhibit
A-l):
Québec,
January
8,
1996
Revenue
Canada
Re:
Child
Tax
Benefit
To
whom
it
may
concern,
I
hereby
waive
my
rights
to
the
child
tax
benefit
in
favour
of
Dominique
Côté,
domiciled
at
179
Ave.
Royale,
St-Jean
I.O.
for
1993,
1994,
1995
and
1996.
(S.I.N.:
252-821-269)
However,
should
Ms.
Côté’s
financial
situation
improve
or
my
financial
situation
deteriorate,
I
reserve
the
right
in
future
years
to
assert
my
rights
to
the
child
tax
benefit.
GIROUX,
CLEMENT
228
Des
Rubis
Boischatel
(Que.)
GOA
1H0
S.I.N.:
231-558-792
[Translation.]
The
appellant
says
he
filed
this
document
in
consideration
of
the
fact
that
Ms.
Côté
is
currently
unemployed.
2.05
Ms.
Côté
said
it
was
her
view
that,
starting
on
July
1,
1996,
the
child
tax
benefit
should
be
granted
on
the
basis
that
she
had
custody
of
Caroline
and
the
appellant
custody
of
Bernard,
while
retaining
joint
custody
alternating
every
week.
The
appellant
agreed.
3.
The
Act
-
Analysis
3.01
The
Act
With
respect
to
the
child
tax
benefit,
section
122.6
of
the
Income
Tax
Act
(the
“Act”)
and
subsection
6301(1)
of
the
Income
Tax
Regulations
apply
in
the
instant
case.
They
read
as
follows:
122.6
Definitions.
In
this
subdivision,
“base
taxation
year”
-
“base
taxation
year”
in
relation
to
a
month
means
(a)
where
the
month
is
any
of
the
first
6
months
of
a
calendar
year,
the
taxation
year
that
ended
on
December
31
of
the
second
preceding
calendar
year,
and
(b)
where
the
month
is
any
of
the
last
6
months
of
a
calendar
year,
the
taxation
year
that
ended
on
December
31
of
the
preceding
calendar
year;
“eligible
individual”
-
“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,
(c)
is
resident
in
Canada,
(d)
is
not
described
in
paragraph
149(1
)(a)
or
(b),
and
(e)
is,
or
whose
cohabiting
spouse
is,
a
Canadian
citizen
or
a
person
who...
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....
6301(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
(d)
more
than
one
notice
is
filed
with
the
Minister
of
National
Health
and
Welfare
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
where
such
persons
live
at
different
locations.
3.02
Analysis
3.02.1
It
is
the
Court’s
view
that,
based
on
the
evidence
adduced,
each
parent
in
fact
had
custody
of
one
child
during
the
period
from
1992
to
1993.
3.02.2
However,
it
is
the
Court’s
opinion
that
the
agreement
between
the
parties,
described
above
(2.04,
2.05),
should
be
respected;
the
respondent
should
not
penalize
the
appellant’s
spouse
by
reassessing
her.
4.
Conclusion
For
the
aforementioned
reasons,
the
appeal
is
allowed.
Appeal
allowed.
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