Date: 20020624
Docket: 2002-51-IT-I
BETWEEN:
MICHELLE M. WISHART,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor Judgment
O'Connor, J.T.C.C.
[1] The Appellant has been asked to repay $1,026.74 of Canadian Child Tax Benefits ("CCTB") and $313.55 of British Columbia Family Benefits ("BCFB") for a total of $1,340.29.
[2] Johnathan Ryan was born January 10, 1992. His mother had considerable psychological problems and Johnathan's custody was taken over by the mother's sister who is the Appellant in this appeal.
[3] Johnathan was taken into care by the British Columbia Ministry for children and families ("Ministry") on December 4, 2000. While in such care the overpayments in questions were made.
[4] While in such care Johnathan received many visits from the Appellant and shared many meals with the Appellant who prepared them.
[5] One of the main contentions of the Appellant is that she was under the impression that the stay with the Ministry for Johnathan would be relatively temporary and that she was maintaining a residence for him upon his expected return.
[6] The position of the Canada Customs and Revenue Agency ("CCRA") is substantially set forth in paragraph 5 of the Reply to the Notice of Appeal. That paragraph reads as follows:
5. In so notifying the Appellant, the Minister relied on the following assumptions:
a) Johnathan was taken into care by the Ministry on 4th December 2000;
b) from 4th December 2000 Johnathan did not reside with the Appellant;
c) the Ministry had custody of Johnathan; and
d) Johnathan, for the period in respect of which the Appellant received Benefits, was a person in respect of whom a special allowance under the Children's Special Allowances Act was payable.
While Johnathan was in the care of the Ministry he lived with foster parents at times.
[7] Section 122.6 of the Income Tax 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) ...
[8] Section 122.6 of the Act defines "qualified dependant" as follows:
"qualified dependant" at any time means a person who at that time
(a) has not attained the age of 18 years,
(b) ... 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;
[9] In paragraph 5 d) of the Reply the Minister has made the assumption that Johnathan for the period in question was a person in respect of whom a special allowance under the Children's Special Allowances Act was payable. This assumption has not been disproven and is therefore assumed true.
[10] Section 3 of the Children's Special Allowances Act, 40-41 Eliz. II reads as follows:
3. (1) Subject to this Act, there shall be paid out of the Consolidated Revenue Fund, for each month, a special allowance in the amount determined for that month by or pursuant to section 8 in respect of each child who
(a) is maintained
(i) by a department or agency of the government of Canada or a province, or
(ii) by an agency appointed by a province for the purpose of administering any law of the province for the protection and care of children,
and who resides in the private home of foster parents, a group foster home or an institution; or
(b) is maintained by an institution licensed or otherwise authorized under the law of the province to have the custody or care of children.
(2) A special allowance shall be applied exclusively toward the care, maintenance, education, training or advancement of the child in respect of whom it is paid.
[11] Although the Appellant contributed significantly to the proper upbringing of Johnathan, Johnathan did not reside with her and moreover Johnathan was a person in respect of whom a special allowance under the Children's Special Allowances Act was payable for the period in question.
[12] Consequently the Appellant was not the eligible individual and moreover Johnathan did not fit the definition of a qualified dependant because of the Children's Special Allowance Act payments. For these reasons the appeal is dismissed and the Benefits as defined in the Reply are to be repaid to the Minister.
Signed at Ottawa, Canada this 24th day of June, 2002.
"T, O'Connor"
J.T.C.C.
COURT FILE NO.: 2002-51(IT)I
STYLE OF CAUSE: Michelle M. Wishart v. The Queen
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 4, 2002
REASONS FOR JUDGMENT BY: The Honourable Judge Terrence O'Connor
DATE OF JUDGMENT: June 24, 2002
APPEARANCES:
For the Appellant: The Appellant herself
Counsel for the Respondent: Nadine Taylor
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2002-51(IT)I
BETWEEN:
MICHELLE M. WISHART,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on June 4, 2002 at Vancouver, British Columbia, by
the Honourable Judge Terrence O'Connor
Appearances
Counsel for the Appellant: The Appellant herself
Counsel for the Respondent: Nadine Taylor
Fiona Hughes, Student-at-law
JUDGMENT
The appeal from the determination made under the Income Tax Act in respect of the Child Tax Benefit for the period after December 4, 2000 is dismissed in accordance with the attached Reasons for Judgment and the Benefits as defined in the Reply are to be repaid to the Minister.
Signed at Ottawa, Canada, this 24th day of June, 2002.
|
"T. O'Connor" |
J.T.C.C.