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Date: 20020308

Docket: 2000-4127-IT-I

BETWEEN:

CHRISTOPHER GOGUEN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasonsfor Judgment

Angers, J.T.C.C.

[1]            These appeals under the informal procedure were heard in Miramichi, New Brunswick on February 12, 2002. The Appellant objects to the Minister of National Revenue's (the "Minister's") Child Tax Benefit Notice dated November 20, 1998, which assessed an overpayment of $2,804.05 against him for the base years 1996 and 1997. The issue before this Court is whether the Appellant was the eligible individual in respect of two qualified dependants for the period from July 1997 to October 1998 and was therefore entitled to receive child tax benefits under the Income Tax Act (the "Act").

[2]            The qualified dependants in this matter are Stacey Eleanor Regina Goguen, born on April 27, 1989, and William Malcolm Goguen, born on January 25, 1992. They are the children of the Appellant and of Deborah Goguen, who were married on July 18, 1987.

[3]            The couple separated around November 1992, and the Appellant had custody of both children. It was admitted that the children resided with the Appellant after the separation and that he was the primary care giver. The Appellant received the child tax benefits until November 1998. At that time, the Appellant's wife informed the Minister that she had been the eligible individual entitled to the benefits since July 1996. On the basis of this information, the Minister established that the Appellant's wife was eligible as of July 1997, and an overpayment was accordingly assessed against the Appellant.

[4]            The parties signed a financial agreement on May 12, 1993 at the Court of Queen's Bench of New Brunswick. (Exhibit A-6). The Appellant's wife agreed to pay the Appellant $200 per month for the support of the two children commencing the first week of June 1993. The agreement was later modified by an interim consent order from a judge of the Court of Queen's Bench of New Brunswick (Exhibit A-7). The interim consent order awarded custody of the two qualified dependants to the Appellant, granted the Appellant's wife access to the children and provided for the payment of $125.00 per month for the support of both children commencing on November 1, 1993.

[5]            On November 29, 1994, a further order was signed by a judge of the Court of Queen's Bench of New Brunswick (Exhibit A-8). It provided for the resolution of a matter involving a request for extended access and froze arrears of support payments by the Applicant's wife, it also included an undertaking by her to advise that court's Enforcement Office of any change in her employment or financial status.

[6]            The final court document that was introduced in evidence is an interim order dated July 8, 1998 from the same court (Exhibit A-9). It provided inter alia that the parties agreed by consent to joint custody in order to accommodate the Appellant's work schedule. The Appellant's work schedule consisted of 4 working days on and 4 working days off. The Appellant was to pay his wife $100 per week as support for both children, and 50% of the cost of the children's activities, as they fell due. This order also provided for a psychological evaluation of the children and the parties in order to determine the best custody arrangements for the children. The evidence at trial did not disclose the outcome of the evaluation and at the time of the hearing the parties were under their joint custody agreement.

[7]            The Appellant testified that at the time of their separation, he was a seasonal worker in the forest industry. At that time he had to arrange for babysitters for the children, most of whom were live-in sitters. He was not getting any financial help from his wife, as she was in arrears with her support payments. He was living with the children in a house that was later in issue in a trial before the courts in New Brunswick.

[8]            In September 1996, the Appellant changed jobs and started working for Eagle Forest Products Inc. At first, the work shifts were irregular. He began regular and permanent employment with the company in 1997. When at work, he had sitters come in to care for his children. He had seven sitters over the years. In the fall of 1996 and the spring of 1997, his girlfriend, Suzanne Francoeur, moved in with him and took care of the children. They separated in March 1997 but she continued to sit and care for the children. The Appellant said that his wife exercised her visiting rights every second weekend as agreed.

[9]            The Appellant testified that his wife did not like him to have girlfriends around the children. Because of his difficulties in keeping sitters, he asked his wife to babysit their children. He paid her $75 for the first week but then stopped paying her. The children were staying at his place. When his son started school, he was staying at the Appellant's house. The Appellant recalled that when his son started school, both his mother and grandmother came to watch him take the bus the first morning, and that his son told them to go home because he was fine.

[10]          The Appellant admitted that his wife took the children to her mother's house and that they slept there for a couple of months before the joint custody order of September 1998. He testified that the children stayed with him until the order was signed. After that, when he was at work, the children were with their mother, and when he was not working, they were with him. He admitted that the children were with their mother more often about a month before the joint custody order. Although the Appellant appeared uncertain about the exact dates of these events, the exhibits and the evidence of Suzanne Francoeur confirmed the time when these events actually took place.

[11]          The Appellant further testified that when his wife was babysitting, he still provided the groceries, took the children to the doctor's and gave them their medicine. When he was home with the children, his wife was not there. Because they resided in a small subdivision, their friends were just across the street. His wife was unemployed when babysitting her own children.

[12]          Suzanne Francoeur testified that she met the Appellant in September 1995 and started dating him. She also started babysitting the children during the winter months. In the summer of 1996, she worked as a flag person and in the fall of that year, she moved in with the Appellant until March 1997. During that period, she took care of the children. After she moved out, she continued to babysit them. During the period of Ms. Francoeur's involvement with the children, she said that the Appellant's wife took the children every second weekend until the Appellant asked her to babysit. According to Ms. Francoeur, the Appellant's wife babysat from August 1997 until the joint custody order of September 1998. The Appellant's wife was living with her mother until that date.

[13]          The evidence of Deborah Goguen (the Appellant's wife) corroborated the Appellant's testimony as regards the events and the dates of their occurrence. Her evidence began to contradict this when she testified that she became more involved in June 1997. She said the Appellant asked her to watch the children when he was at work. At first, she would go to the Appellant's house at four in the morning. At the time it was a 15-minute drive from her residence. She did that for a couple of days and then started to see them at her place, after which they were with her from Monday to Friday after work. Their youngest son was not in school yet, as he started in September 1998. This arrangement lasted until October 1997 when the Appellant got a new job and was working four days on and four days off. Mrs. Goguen testified that the children spent 50% of their time with each parent, and this arrangement has in fact continued to this day. When her son started school, Mrs. Goguen was living in Newcastle and he was with her from Monday to Friday. She said that she stayed at the Appellant's house once when he went on a trip and another time when he had an operation.

[14]          According to Mrs. Goguen, the children were taken to the doctor by the parent they were with when the need arose during the years 1997 and 1998. She began working in June 1997 and while she was at work her mother and a few sitters took care of the children. She said that she eventually moved in with her mother in 1999 for a ten-month period, but she corrected this to 1998 under cross-examination.

[15]          Both parties introduced letters from various friends, neighbours and school principals that support their respective positions. None of those individuals were present in court and I don't intend to give the letters much weight.

[16]          The Act provides that an eligible individual may, for specific periods, receive the Canada Child Tax Benefit in respect of qualified dependants under the age of 18. It is not necessary for the determination of this appeal to review the qualified dependants aspect or the availability of the benefit. The issue is whether the Appellant is the eligible individual in respect of the period from July 1997 to October 1998.

[17]          Section 122.6 of the Act defines "eligible individual" as follows:

"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 or, where the person is the cohabiting spouse or common-law partner of a person who is deemed under subsection 250(1) to be resident in Canada throughout the taxation year that includes that time, was resident in Canada in any preceding taxation year,

(d) is not described in paragraph 149(1)(a) or (b), and

(e) is, or whose cohabiting spouse or common-law partner is, a Canadian citizen or a person who

(i) is a permanent resident (within the meaning assigned by the Immigration Act),

(ii) is a visitor in Canada or the holder of a permit in Canada (within the meanings assigned by the Immigration Act) who was resident in Canada throughout the 18 month period preceding that time,

(iii) was determined before that time under the Immigration Act, or regulations made under that Act, to be a Convention refugee, or

(iv) was determined before that time to be a member of a class defined in the Humanitarian Designated Classes Regulations made under the Immigration Act,

and, for the purposes of this definition,

(f) where a 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 (f) does not apply in prescribed circumstances, and

(h) prescribed factors shall be considered in determining what constitutes care and upbringing;

[18]          Section 6302 of the Income Tax Regulations, which appears in Part LXIII, lists a series of factors to be considered in determining what constitutes care and upbringing of a qualified dependant. Section 6302 reads as follows:

6302. Factors — 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.

[19]          It is clear from the evidence that court orders have existed in respect of both qualified dependants since as early as May 12, 1993. Up until July 15, 1998, custody rested solely with the Appellant. In July 1998, in order to accommodate the Appellant's work schedule, the parents agreed to joint custody. The evidence given by the Appellant is that the children began spending more time with their mother approximately a month before the July 15, 1998 court order. The evidence also disclosed that the Appellant was involved in a court action against his wife's parent over ownership of the house he occupied with his children. I find that the issues in that action have no relevancy in the case at bar other than to confirm that the Appellant was living with his children in that house and that he had sole custody of the children up until July 1998, shortly before the trial, which was held on September 17, 1998.

[20]          At the time of separation, the Appellant clearly became the parent who primarily fulfilled the responsibility for his children's care and upbringing. He arranged and attended to all their needs including their supervision while he was at work. Their mother had access every second weekend and was often behind in support payments. It was the Appellant who assumed the daily responsibilities of raising these two young children.

[21]          The Appellant's wife started to get involved in her children's care in August 1997. She had been asked by the Appellant to babysit the children and he offered her $75 a week, which he said he paid for one week. This was neither confirmed nor denied by the Appellant's wife. According to Suzanne Francoeur, the Appellant's wife babysat her children until the joint custody order of 1998. I have no doubt that the Appellant's wife spent more time with her children over the course of these months and had them over at her or her mother's place more often as well. I believe that this was done mainly to accommodate her schedule and that her purpose was not necessarily to assume more responsibilities with respect to her children. I did not hear any evidence that would lead me to conclude that the Appellant at any time relinquished his duties and responsibilities as the primary care giver for his children. His wife testified that he continued to take the children to their doctor's appointments but that they have shared these responsibilities on an equal basis since the joint custody order.

[22]          The Appellant appeared to me to be a responsible and credible person who, despite all the difficulties he encountered in the break-up of his marriage, succeeded in providing his children with a secure environment, provided for their needs at all times and was with them when not at work. The presence of their mother in 1997 and 1998 and the more active role she played in the live of her children were definitely necessary and are to be commended. However, they do not convince me that the Appellant ceased to be the primary care giver for the qualified dependants during the period in question.

[23]          I therefore conclude that the Appellant has proven on a balance of probabilities that he is the eligible individual entitled to the Canada Child Tax Benefit for the period from June 1997 to October 1998. The appeals are therefore allowed.

Signed at Ottawa, Canada, this 8th day of March 2002

"François Angers"

J.T.C.C.

COURT FILE NO.:                                                 2000-4127(IT)I

STYLE OF CAUSE:                                               CHRISTOPHER GOGUEN

                                                                                                and Her Majesty the Queen

PLACE OF HEARING:                                         Miramichi, New Brunswick

DATE OF HEARING:                                           February 12, 2002

REASONS FOR JUDGMENT BY:      The Honourable Judge François Angers

DATE OF JUDGMENT:                                       March 8, 2002

APPEARANCES:

Agent for the Appellant:                     Irene McCardle

Counsel for the Respondent:              Dominique Gallant

COUNSEL OF RECORD:

For the Appellant:                

Name:                               

Firm:                 

For the Respondent:                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                                Ottawa, Canada

2000-4127(IT)I

BETWEEN:

CHRISTOPHER GOGUEN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeals heard on February 12, 2002 at Miramichi, New Brunswick by

the Honourable Judge François Angers

Appearances

Agent for the Appellant:                                          Irene McCardle

Counsel for the Respondent:                                   Dominique Gallant

JUDGMENT

          The appeals from the assessments made pursuant to the Income Tax Act for the 1996 and 1997 taxation years are allowed, in accordance with the attached Reasons for Judgment, and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the Appellant is entitled to the Canada Child Tax Benefit for the period from June 1997 to October 1998.

Signed at Ottawa, Canada, this 8th day of March 2002

"François Angers"

J.T.C.C.


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