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No. 836 DRS 98-16759. [19]          The learned Judge concluded from an examination of the relevant authorities that parties are not dealing with each other at arm's length when the predominate consideration or the overall interest or the method used amount to a process that is not typical of what might be expected of parties who are dealing with each other at arm's length. ... Failure to take into account all of the relevant circumstances required by either the Unemployment or the Employment Insurance Act or taking into consideration irrelevant facts would result in an improper exercise of that jurisdiction. ... In summary to find the Minister's determination insufficient in law, the Appellant must establish that he acted in bad faith or for an improper motive, that he failed to take into account all of the relevant circumstances as required by subparagraph 3(2)(c)(ii) of the UI Act and paragraph 5(3)(b) of the EI Act or that he took into account an irrelevant factor. [29]          The Court is satisfied that the Respondent did not act in bad faith or from an improper motive and that he took into account the relevant considerations as set out above. ...

Canada (Minister of Employment and Immigration) [1], the Supreme Court of Canada stated that the purpose of subsection 15(1) was:... to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. [12] In Andrews v. ... Logic suggests that in determining whether a particular group characteristic is an analogous ground, the fundamental consideration is whether the characteristic may serve as an irrelevant basis of exclusion and a denial of essential human dignity in the human rights tradition. ... The law, in purpose or effect, conforms to a society equally capable and equally deserving of concern, respect and consideration. [15] Counsel for the appellant has not demonstrated that either the purpose or effect of subsection 118.3(2) violates the appellant's human dignity so as to constitute discrimination. ...

“shared-custody parent” in respect of a qualified dependent [sic] at a particular time means, where the presumption referred to in paragraph (f) of the definition “eligible individual” does not apply in respect of the qualified dependant, an individual who is one of the two parents of the qualified dependant who; (a) are not at that time cohabitating spouses or common-law partners of each other; (b) reside with the qualified dependant on an equal or near equal basis; and (c) primarily fulfil the responsibility for the care and upbringing of the qualified dependant when residing with the qualified dependant, as determined in consideration of prescribed factors. [Emphasis added.] [33]         Following the date of separation and up to the disputed periods (January 2013 for S and March 2014 for R), it is apparent that the Appellant had the benefit of the presumption set out in paragraph 122.6 eligible individual (f) in that both children primarily resided with her and, as the female parent, she was presumed to be the parent who primarily fulfilled the responsibility for their care and upbringing. [34]         However, the presumption in favour of the female parent is rebuttable where both parents meet the definition of “shared-custody parents” or another parent has filed an application claiming to be the primary caregiver as provided by subsection 6301(1)(d) of the Regulations. [35]         In this instance, the father filed an application with CRA in the fall of 2014 and the Minister concluded that both the Appellant and the father met the definition of “shared‑custody parents” in that both children resided with them “on an equal or near equal basis” and both primarily fulfilled the responsibility for their care and upbringing when they are residing with them, taking into consideration the prescribed factors set out in section 6302 of the Regulations: 6302. ... Whether each parent primarily fulfilled the responsibility for the care and upbringing of the children when they resided with them, as determined in consideration of the prescribed factors set out in section 6302 of the Regulations. [37]         The definition uses the conjunctive “and” suggesting that a parent must meet both requirements. ...

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, (g) the presumption referred to in paragraph 122.6 eligible individual (f) does not apply in prescribed circumstances, and (h) prescribed factors shall be considered in determining what constitutes care and upbringing; “qualified dependant” at any time means a person who at that time (a) has not attained the age of 18 years, (b) is not a person in respect of whom an amount was deducted under paragraph (a) of the description of B in subsection 118(1) in computing the tax payable under this Part by the person’s spouse or common-law partner for the base taxation year in relation to the month that includes that time, and (c) is not a person in respect of whom a special allowance under the Children’s Special Allowances Act is payable for the month that includes that time; “shared-custody parent” in respect of a qualified dependant at a particular time means, where the presumption referred to in paragraph (f) of the definition eligible individual does not apply in respect of the qualified dependant, an individual who is one of the two parents of the qualified dependant who (a) are not at that time cohabitating spouses or common-law partners of each other, (b) reside with the qualified dependant on an equal or near equal basis, and (c) primarily fulfil the responsibility for the care and upbringing of the qualified dependant when residing with the qualified dependant, as determined in consideration of prescribed factors. [18]         With respect to the GSTC regime described in section 122.5 of the Act, I will only add that the person who is eligible for the GSTC is generally, by virtue of paragraph 122.5(6)(b), the person who is the eligible individual in respect of the child for the purposes of the CCTB. There are exceptions that I need not mention here. [19]         It is clear from the definition noted above, that the Appellant and her ex‑spouse ceased to be “cohabitating spouses” since they had been living separate and apart for a period of at least 90 days from the date of separation on March 27, 2012. [20]         CRA was informed of the separation and, since no one testified on their behalf, I can only speculate that CRA concluded the Appellant was the “eligible individual” in respect of her two children, both falling within the definition of “qualified dependant” since i) they resided with her and ii) she was the parent who primarily fulfilled the responsibility for their care and upbringing – relying on the presumption set out in paragraph 122.6 eligible individual (f) that: (f) where the qualified dependant resides with the dependant’s female parent, the parent who primarily fulfills the responsibility for the care and upbringing of the qualified dependant is presumed to be the female parent. [21]         As indicated above, CRA was not informed until November 2013 that the two children in fact resided with both parents on a shared-custody basis in which case the presumption described above would not apply and both the Appellant and her ex‑spouse would qualify as eligible individuals since, looking at the definition of “shared-custody parent”, they were one of two parents of the children who i) were not cohabiting spouses ii) resided with the children on an equal or near equal basis and iii) primarily fulfilled the responsibility for the care and upbringing of the children when they resided with them. [22]         Subsection 122.61(1) of the Act sets out a formula for the calculation of the CCTB but subsection 122.61(2) specifies that where an eligible individual is a shared-custody parent, the CCTB is to be shared between both parents taking into consideration each parent’s adjusted income for the year. [23]         Having concluded that the Appellant and her ex-spouse were shared‑custody parents, CRA issued the notices of redetermination which are the subject of this appeal, adjusting the CCTB and GSTC retroactively to the date of separation and seeking to recover the overpayments. ... [27]         The jurisdiction given to this Court by Parliament is to hear and determine disputes as to the correctness of assessments under the Act: Surikov, supra. [28]         Since it is not a court of equity, the Tax Court’s jurisdiction does not include equitable considerations such as whether there is an issue of fairness to the Appellant. ...

The Federal Court of Appeal in The Queen v Friedberg, 92 DTC 6031, at page 6032, described a gift as: … a voluntary transfer of property owned by a donor to a donee, in return for which no benefit or consideration flows to the donor (see Heald J. in The Queen v. ... These cases make it clear that in order for an amount to be a gift to charity, the amount must be paid without benefit or consideration flowing back to the donor, either directly or indirectly, or anticipation of that. ... The Appellant’s intent was not entirely donative in nature because he anticipated a benefit or consideration to flow to him as a result of his participation in this gifting arrangement. [22]         In cross-examination, the Appellant’s agent was questioned respecting the Appellant’s donative intent. ...

The Appellant calculated the sale price of the computer parts by taking into consideration the purchase price and marking it up by approximately 0.25%. ... Nixey as part of the consideration for his purchase of shares in Amber Technology. ... Nixey apparently negotiated the perks as part of the consideration for a capital investment in Amber Technology. [39]         As a final observation, I note that Mr. ...

She alleges that the respondent did not take into consideration that she worked for both Terrassement and Technologies even though she was only paid by Terrassement and not by Technologies. ... I feel that even if the Minister had taken into consideration the additional work the appellant did for Technologies, the Minister would have still concluded that the work performed did not justify 40 hours a week. [36]         The appellant did not convince me that it is reasonable to conclude, having regard to all the circumstances, that the appellant and her son would have entered into a substantially similar contract of employment if they had been dealing with each other at arm's length. ... Even if the amount of data entries were doubled to take into consideration the work allegedly done for Technologies, the volume would still be minimal. ...

S. 141.01 (5) Subject to section 141.02, the methods used by a person in a fiscal year to determine (a) the extent to which properties or services are acquired, imported or brought into a participating province by the person for the purpose of making taxable supplies for consideration or for other purposes, and (b) the extent to which the consumption or use of properties or services is for the purpose of making taxable supplies for consideration or for other purposes, shall be fair and reasonable and shall be used consistently by the person throughout the year. ... Where property or a service is acquired or imported for consumption, use or supply by a registrant, the registrant is entitled to claim an ITC equal to the fraction of the tax paid or payable on the acquisition or importation that represents the extent to which the property of service is for consumption, use or supply in a commercial activity of the registrant. [17]         Section 141.01 of the Act requires the registrant to apportion the use of inputs based on the extent to which the inputs are consumed or used, or acquired, imported or brought into a particular province for consumption or use, for the purpose of making taxable supplies for consideration or for other purposes. ...

I do not find this a particularly helpful consideration in a case such as this. ... Again, from the perspective of a driver offering a driving service, that factor is a nominal consideration not worthy of influencing the determination. ... Justice Woods highlighted control as the most important consideration citing the following facts to demonstrate insufficient control for a finding of employment:  -                      drivers were free to determine when they work and could work less than a full shift;  -                      drivers were not instructed where to drive;  -                      drivers were encouraged to pick up passengers on their own;  -                      drivers could attend to personal business on a shift.   ...

She added “ there were no family considerations for this [arrangement] at all ” ... She also stated that I should take into consideration the contradictions between the appellant’s testimony and that of Mr.  ... Cooke benefited from the low rent charged by the appellant, since according to the appellant, one of the considerations taken into account in setting his rent was his low income ...