Date: 19991201
Docket: 98-168-IT-I
BETWEEN:
JANINE GIBSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Sarchuk J.T.C.C.
[1] By Child Tax Benefit Notices dated September 19, 1997, the Minister of National Revenue (the Minister) informed the Appellant that with respect to the 1995 and 1996 base taxation years it had been redetermined that she was entitled to receive a child tax credit in the amount of $239.60 and nil, respectively.
[2] In redetermining the Appellant's entitlement to the child tax benefit for the 1995 and 1996 base taxation years, the Minister made the following assumptions of fact:
(a) in conformity with section 122.6 of the Act, the 1995 "base taxation year" means the months of July 1996 to June 1997, inclusively;
(b) in conformity with section 122.6 of the Act, the 1996 "base taxation year means the months of July 1997 to June 1998, inclusively;
(c) the Appellant was a single individual, who, at all relevant times until April 4,1998, had one (1) "qualified dependant" born on April 4, 1980, namely Andrew Grant, (the "Child");
(d) by virtue of a Divorce Judgment dated October 15, 1987, The Court of Queen's Bench of Alberta, Judicial District of Calgary, adjudged that the Appellant's former spouse, namely Gordon Grant, shall have custody of the Child;
(e) since August 1995, the Appellant ceased to reside with the Child;
(f) at all relevant times, the Appellant was not an "eligible individual" of the Child; (sic) and
(g) the Appellant was entitled to receive Child Tax Benefits in the amounts of $239.60 and $0.00, with respect to the 1995 "base taxation year" and 1996 "base taxation year", respectively.
[3] The Appellant was the sole witness. She testified that in 1987, her estranged spouse, who was then living in Brooks, Alberta, was granted full custody of their seven year old son, Andrew. In or about 1995, when Andrew was 14, the relationship between him and his father became strained and he sought to spend more time with the Appellant. Andrew had spent Christmas, Thanksgiving and during the school summer break with the Appellant and although he enjoyed the visits, he did not have many friends there because since the age of six, he had been attending school, first in Brooks, Alberta, and then in North Vancouver, B.C. However, the difficulties between father and son persisted and ultimately when Andrew was 15, the parents agreed that he would live with the Appellant. At that time, it was also agreed that the child tax credit would be transferred from his father to the Appellant.
[4] The Appellant testified that she is an organic crop consultant and lives in an alternative community known as the Northern Sun Farm Co-op near Steinbach. They are environmentally based, obtain their power from solar panels and do without many of the amenities such as running water, etc. The Appellant observed that Steinbach is somewhat of a conservative area and while in general, the community has been supportive of the Co-op, Andrew's schooling was a problem. More specifically, while Andrew enjoyed living on the farm "per se" he did not feel comfortable attending the local schools. He transferred from the Steinbach school to a school at Grunthal with no appreciable change in his attitude and as a result, he was ultimately registered for home schooling. The problem persisted and it became apparent that Andrew wanted to return to North Vancouver and attend the Sea Cove School where he had a large number of friends. Although his father resided in the Vancouver area, Andrew refused to return to his residence as a result of which an arrangement was made to place him in "a board and room situation in a rooming house" so that he could attend the school of his choice. During this period, the Appellant and her former spouse assisted Andrew with his rent and other expenses. She further testified that Andrew's father suggested that the Appellant should declare Andrew as a dependant and receive the tax credit for Andrew's benefit. It is with respect to this period of time that the issue in question arose.
[5] It is the Appellant's position that she was the person who was primarily responsible for the care and upbringing of Andrew during the relevant "base taxation years". The Appellant also maintains that Andrew did not reside with his father during that period of time.
Conclusion
[6] Sections 122.6 to 122.64 of the Income Tax Act (the Act) were enacted in 1992 in order to consolidate the existing benefits available with respect to dependant children. This benefit is payable in respect of "qualified dependants". A qualified dependant must be under 18 at the relevant time which was indeed the case with Andrew. The benefit is payable to an "eligible individual". In order to qualify as an eligible individual, the individual at that time must (a) reside with the qualified dependant; (b) the parent who primarily fulfils the responsibility for the child's care and upbringing. In this appeal, it is necessary for the Appellant to demonstrate that both of the above requirements have been met.
[7] With respect to the question whether the Appellant during the relevant period resided with the qualified dependant I must observe that there few cases that substantively deal with the definition of the phrase "resides with the qualified dependant". However, the phrase "resides with" was considered by Rip J. in Eliacin v. Canada.[1] The issue in that case was whether the Appellant was entitled to deduct child care expenses under section 63, an entitlement which was only available to her if the child "resided with" her. Since the question for determination in Eliacin is identical to that before me the following comments of Rip J. are relevant to this appeal:
Counsel for the respondent relied on Thomson v. M.N.R., [1946] S.C.R. 209, [1946] C.T.C. 51, 2 D.T.C. 812, a judgment of the Supreme Court, which affirmed the principle that a taxpayer may have more than one residence. In my view, this judgment in no way applies to the facts of the instant appeal. Paragraph 63(3)(d) uses the words “... the ... spouse ... resided with the taxpayer ...”. In Thomson, it was discussed whether the taxpayer had resided in Canada.
Le Petit Robert 1 defines the word “avec” (“with”) as follows:
1. (Indicates relation: simultaneous physical presence; moral agreement between a person and someone or something). In the company of (someone). See prefix “co-”. “To go walking with someone.” “My greatest pleasure is to go out with you.” “He always has his dog with him.” To be with someone: “in his or her company”. “They are always with each other.” See “auprès (de)”. “She was then with a very rich man.” Flaubert: “she lived with him....”
The same dictionary states that the word “à” (“in”) means “position in a place”.
In English, there is also a difference between the words “in” and “with”. The Shorter Oxford English Dictionary on Historical Principles defines the word “in” to mean “... the preposition expressing the relation of inclusion, situation, position, existence, or action within limits of space ....” The word also means “... within the limits or bounds of, within (any place or thing) ....”
The Shorter Oxford English Dictionarydefines the word “with” as follows:
II. Denoting personal relation, agreement, association, union, addition. ... 13. Following words expression accompaniment or addition, as associate, connect, join, marry, share, unite vbs.. 19. Expressing association, conjunction, or connection in thought, action or condition ... 25. Indicating an accompanying or attendant circumstance, or a result following from the action expressed by the verb.
The English courts have had to define the words “reside with” which appear at subsection 1(4) of the Summary Jurisdiction (Separation and Maintenance) Act, 1925, (15 & 16 Geo. 5, c. 51). That subsection provides that a maintenance order is not executory if the woman “resides with” her husband. The words “reside with” were defined as meaning “residing in the same house as” (see Evans v. Evans, [1948] 1 K.B. 175, at page 182). or “living in the same house with” (see Hewitt v. Hewitt, [1952] 2 Q.B. 627, at page 631). ...
It may be said in light of this case law that the words “to reside with” have a broader definition and do not mean to live in a domestic relationship; they only mean to live in the same house as someone else. ...
Emphasis added
[8] I observe as well Black's Law Dictionary refers to "residence" as "personal presence at some place of abode with no present intention of definite and early removal and with the purpose to remain for undetermined period, not infrequently, but not necessarily combined with design to stay permanently".
[9] It is not possible in the circumstances of this case to conclude that the qualified dependant, Andrew, "resided with" the Appellant. Accordingly, the Minister's determination that the Appellant was not entitled to the child tax benefit for the 1995 and 1996 base taxation years was correct. In view of my conclusion with respect to this requirement, I need not consider whether the Appellant was the individual who was primarily responsible for the care and upbringing of Andrew in that period of time. The appeals are dismissed.
Signed at Ottawa, Canada, this 1st day of December, 1999.
"A.A. Sarchuk"
J.T.C.C.