[OFFICIAL ENGLISH TRANSLATION]
2001-616(IT)I
BETWEEN:
YVES ALLARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on August 21, 2001, at Montréal, Quebec, by
the Honourable Judge Lamarre Proulx
Appearances
For the Appellant: The Appellant himself
Agent for the Respondent: Nancy Dagenais
Student-at-law
JUDGMENT
The appeal from the child tax benefit determination for the 1998 base taxation year is allowed without costs and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 24th day of September 2001.
|
"Louise Lamarre Proulx" |
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Date: 20010924
Docket: 2001-616(IT)I
BETWEEN:
YVES ALLARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Lamarre Proulx, J.T.C.C.
[1] This is an appeal under the informal procedure from a child tax benefit determination made on December 13, 1999, for the period of July 1999 to June 2000.
[2] The issue is who, during that period, was the eligible individual or the parent who primarily fulfilled the responsibility for the care and upbringing of the children within the meaning of section 122.6 of the Income Tax Act ("the Act") and sections 6300 and 6302 of the Income Tax Regulations ("the Regulations").
[3] The Minister of National Revenue ("the Minister") based the determination on the facts set out as follows in paragraph 5 of the Reply to the Notice of Appeal ("the Reply"):
[TRANSLATION]
(a) the appellant and Guylaine Asselin (hereinafter the "former spouse") got married on September 7, 1996.
(b) they had three children together: Naomi, who was born on May 30, 1997, Jordan, who was born on June 10, 1995, and Audréane, who was born on April 21, 1992;
(c) a fourth minor child, Ludovik, who was born on July 7, 1989, is from a previous relationship, but the appellant has always acted as that child's father;
(d) on August 27, 1998, the appellant and the former spouse stopped living together;
(e) on December 16, 1998, both parties signed a consent to corollary relief in the Superior Court;
(f) in a divorce judgment rendered by the Honourable Mr. Justice Jean Guy Dubois of the Superior Court of Quebec on January 27, 1999, that Court ratified the parties' consent to corollary relief of December 16, 1998, and ordered the parties to comply with that agreement;
(g) according to the consent to corollary relief of December 16, 1998, it was agreed, inter alia, that:
(i) the two parties had and were to have joint custody of their four minor children, with each parent having them in alternate weeks starting from the time the parties separated, that is, the beginning of August 1998;
(ii) during the weeks when the appellant had custody, the former spouse was to look after the minor children Naomi and Jordan in the daytime until January 1999, when she was to be going back to school;
(iii) starting in January 1999, each party was to look after the children and be responsible for child care costs during the weeks when he or she had custody;
(iv) the appellant was to pay $304.16 a month in support for the minor children; the said amount was to be indexed on January 1 of each year in accordance with article 590 of the C.C.Q.;
(v) family allowances and tax deductions were to be shared equally by the parties;
(vi) the appellant undertook to pay for clothing for Audréane and Jordan; the former spouse undertook to pay for clothing for Naomi and Ludovik;
(vii) under the divorce judgment, the former spouse was to give the appellant half of the family allowances and tax deductions, and the two parties signed an agreement stating that the former spouse was to write cheques for the difference between the amounts of the family allowances, including baby bonuses from the provincial government, and the support amounts for the months of February to June 1999;
(viii) around March 10, 1999, the appellant applied to the Minister to have the Canada Child Tax Benefit paid to him for six months and to the former spouse for the following six months;
(ix) based on a review of the information obtained from the questionnaires filled out by the appellant and the former spouse, the Minister determined that the appellant was not eligible for the CTB for the four minor children because he was not the parent primarily responsible for their care and upbringing. A notice of determination was sent to the appellant on December 13, 1999;
(x) on November 21, 1999 [sic], the appellant filed a notice of objection to the notice of determination of December 13, 1999;
(xi) on March 31, 2000, the Minister confirmed the notice of determination on the ground that the appellant had not shown that he was the "eligible individual" within the meaning of section 122.6 of the Act for the period of July 1999 to June 2000;
(xii) the former spouse therefore continued to receive the CTB for the other children for the entire period encompassed by the 1998 base taxation year.
[4] Section 6302 of the Regulations reads as follows:
For the purposes of paragraph (h) of the definition "eligible individual" in section 122.6 of the Act, the following factors are to be considered in determining what constitutes care and upbringing of a qualified dependant:
(a) the supervision of the daily activities and needs of the qualified dependant;
(b) the maintenance of a secure environment in which the qualified dependant resides;
(c) the arrangement of, and transportation to, medical care at regular intervals and as required for the qualified dependant;
(d) the arrangement of, participation in, and transportation to, educational, recreational, athletic or similar activities in respect of the qualified dependant;
(e) the attendance to the needs of the qualified dependant when the qualified dependant is ill or otherwise in need of the attendance of another person;
(f) the attendance to the hygienic needs of the qualified dependant on a regular basis;
(g) the provision, generally, of guidance and companionship to the qualified dependant; and
(h) the existence of a court order in respect of the qualified dependant that is valid in the jurisdiction in which the qualified dependant resides.
[5] Both parents testified. Based on the evidence that was heard, it seems to me that the period at issue must be divided into two parts. The first part ended in December 1999. In January 2000, Ms. Asselin started a one-year Emploi-Québec training program in computer technology. The courses were given from 8:00 a.m. to 4:30 p.m.
[6] During the first period, Ms. Asselin did not work outside the home. She even said that she was the one who looked after the two youngest children in the daytime during the weeks when her former husband had custody.
[7] On August 2, 1999, Ms. Asselin filled out the child tax benefit questionnaire filed as Exhibit I-5. The period to which the questionnaire applies started on August 27, 1998, and the period at issue started in July 1999. The appellant's questionnaire is dated July 16, 1999. The questionnaires therefore relate to the first part of the period at issue.
[8] In view of the answers given on the questionnaires and in light of the parents' testimony, the Minister's decision that the children's mother was the eligible individual seems to be the only reasonable conclusion for that first part of the period at issue.
[9] However, with regard to the second part, when Ms. Asselin was taking a full-time training program, it is my view that the appellant was the one who looked after the children the most. There is no doubt that he was more interested in the children's extracurricular activities, that he took those activities more seriously and that he was more available for the children generally. This does not mean that the mother did not look after her children properly, but, since it is necessary to decide who primarily took care of them, it is my opinion that it was their father for that period.
[10] The appeal is allowed and the matter is referred back to the Minister for reconsideration and reassessment on the basis that the appellant was the eligible individual or the parent who primarily fulfilled the responsibility for the care and upbringing of the children within the meaning of section 122.6 of the Act during the part of the period at issue that started in January 2000
Signed at Ottawa, Canada, this 24th day of September 2001.
|
"Louise Lamarre Proulx" |
J.T.C.C..