Archambault T.C.J.:
1 These are appeals by Anne-Marie Paquette from tax benefit notices dated February 20 and June 20, 1994, indicating that she was not entitled to child tax benefits for the benefit months from January to October 1993. I must determine whether Ms. Paquette was an eligible individual during this period under the child tax benefit scheme set out in ss. 122.6 et seq. of the Income Tax Act (Act).
2 In particular, it must be determined whether Ms. Paquette primarily fulfilled the responsibility for the care and upbringing of her dependent children, Julien and François, seven and five years old respectively, in 1993. The Court's task is not an easy one because the evidence was that Ms. Paquette and the father, Jacques Lavallée, both assumed responsibility for the care and upbringing of their children.
Facts
3 Ms. Paquette and Mr. Lavallée were living apart in 1993. Since 1991, Mr. Lavallée had been living with a common-law spouse, Ms. Neilson, with whom he had a child in January 1993. Ms. Neilson had two children from a previous marriage, who were approximately the same age as Mr. Lavallée's children.
4 An order of the Ontario Court (General Division) dated November 26, 1991, gave Ms. Paquette and Mr. Lavallée joint custody.
5 The children in fact spent two weeks with their mother and two weeks with their father. In 1993, Ms. Paquette was working for a travel agency; her hours of work were 9:00 a.m. to 5:00 p.m. As one of her children was in a day care centre and the other in school, she needed the services of a babysitter when the children returned from school. The babysitter was readily available and could look after the children when Ms. Paquette was delayed at work. In 1993 Ms. Paquette provided a house that was adequate for her children's needs, a house with three bedrooms. Ms. Paquette regularly met with her children's teachers and went with them to recreational activities such as baseball.
6 Mr. Lavallée and Ms. Neilson spent more time at home. As Ms. Neilson did not have paid employment outside the house, she looked after the children. Mr. Lavallée, who worked as a sales representative, had a flexible work schedule and was able to spend more time at home. Mr. Lavallée devoted a lot of his time to his children's upbringing.He was on a parents' committee at the school his two children attended. He also attended every meeting with the teachers when report cards were given out. In view of his involvement in the parents' committee, it would appear that he was in closer contact with the school and its administration. The school contacted him if the children had problems.
7 Mr. Lavallée also took a very active part in his children's recreational activities. He coached a soccer team to which his two children belonged and was the leader of a Beaver troop to which the children also belonged. The children took part in other recreational activities when they lived with their father, including swimming and handicrafts. When the children needed to see the pediatrician, it was usually Mr. Lavallée or Ms. Neilson who went with them. The same was true for visits to the dentist.
8 Accordingly, the evidence was that both parents were very involved in their children's upbringing and that both discharged their responsibilities for the care of the children. However, I must make a decision as to which of them primarily fulfilled the responsibility for the care and upbringing of the children.
9 In view of the factors set out in section 6302 of the Income Tax Regulations and the analysis of the evidence submitted to this Court, I think it is the father who primarily fulfilled this responsibility. The main facts supporting this conclusion are as follows. In general, I think that Mr. Lavallée spent more time with his children in 1993 than Ms. Paquette. He had a more flexible schedule which allowed him to spend more time at home (factor 6302(g)). The evidence further indicated that Mr. Lavallée was more involved than Ms. Paquette in arranging medical care and transporting the children to the places where such care was available (factor 6302(c)). The same applies to educational and recreational activities. In particular, as a member of the parents' committee of the school the children attended, Mr. Lavallée had a closer connection with the school's administration and the teachers so he could discuss the children's problems. The fact that he took part personally in scouting and soccer activities also leads the Court to believe that Mr. Lavallée played a greater part in his children's recreational activities (factor 6302(d)).
10 The fact that I have concluded that Mr. Lavallée primarily fulfilled the responsibility for the care and upbringing of Julien and François should not be construed as a judgment on the quality of the care provided by Ms. Paquette. I am satisfied that she has fully discharged her duties to her children.
11 For these reasons, Ms. Paquette's appeal is dismissed.
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