Date: 20020531
Docket: 2001-1964-IT-I
BETWEEN:
CATHERINE LAUDER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Bonner, T.C.J.
[1] This is an appeal from assessment of income tax for the 1998 taxation year.
[2] The Appellant and Edward Nobles are the parents of a child born in January, 1996. Initially, in respect of entitlement to receive the Canada Child Tax Benefit, the Minister of National Revenue (the "Minister") recognized the Appellant as the "eligible individual" in respect of the child within the meaning of section 122.6 of the Income Tax Act (the "Act").
[3] On July 7, 1999, the Ontario Court of Justice issued an order awarding custody of the child to Edward Nobles and the Appellant jointly and providing that the child was to have his principal residence with his father. That led Mr. Nobles to apply for the benefit beginning July 1999.
[4] The Minister reassessed the Appellant for 1998 base taxation year in respect of eligibility for the benefit received by her from July 1999 to November 1999. He took the position that after July 7, 1999 the Appellant ceased to be an eligible individual in respect of the child.
[5] The Appellant appealed from that reassessment. The Minister applied to this Court under section 174 of the Act for a determination of the following question:
"... who is the eligible individual within the meaning of section 122.6 of the Act and Regulation 6302 of the Income Tax Regulations (the "Regulations") in determining the Canada Child Tax Benefit (herein the "Benefit") payable in relation to the qualified dependant of Catherine Lauder and Edward Nobles for the period of time of July 1999 up to, and including, the month of November 1999 (herein the "Period")."
Mr. Nobles was joined as a party to the appeal pursuant to paragraph 174(3)(b) of the Act.
[6] The applicable statutory definition of the term "eligible individual" is found in section 122.6 of the Act. It reads in part:
"'eligible individual' - '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,
and for the purposes of this definition,
...
(h) prescribed factors shall be considered in determining what constitutes care and upbringing;"
Section 6302 of the Income Tax Regulations sets out the "prescribed factors" which paragraph (h) of the definition requires to be considered:
"6302. 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."
[7] The terms of the Court Order of July 7, 1999 included the following:
"1. The parties shall have interim interim joint custody of the child, ...
2. The child shall have his principal residence with his father, the respondent, Edward Nobles.
3. The child shall reside with his mother, the applicant, Catherine Lauder, from after camp to 7 pm on Monday, Tuesday, Wednesday and Thursday and Saturday, from 9 am to 7 pm and Sunday 9 am to 7 pm on alternating weekends commencing July 17, 1999.
4. After camp, the child may visit his paternal grand-mother at her home for the period from end of camp until Friday of the Labour Day Weekend provided that the grand-mother allows the mother reasonable visits and telephone access.
5. The child shall reside with the mother on Saturday and Monday of Labour Day Weekend from 9 am to 7 pm.
6. Once school starts, the child shall reside with the mother on Monday, Tuesday, Wednesday and Thursday from 4:30 pm to 7 pm and for the day on Saturday and Sunday on alternating weekends from 9 am to 7 pm commencing September 11, 1999."
The Order also required Mr. Nobles to pay interim spousal support. I note here that the Appellant states that Mr. Nobles has failed to do so but that fact is not relevant for present purposes.
[8] Both the Appellant and Mr. Nobles testified at the hearing of this appeal. The Appellant's testimony indicated that she was a concerned and caring mother who made full use of every opportunity afforded to her to see to the welfare of her child. Those opportunities were however limited to the periods prescribed by the Court Order and by Mr. Nobles' inflexible insistence on strict compliance with the terms of the Order. It is clear that during the period with which I am concerned the Appellant was relegated to a secondary role with respect to the care and upbringing of the child by reason of the time limitations imposed by paragraphs 3 to 6 of the Court Order. The evidence of both witnesses suggests that the secondary nature of the Appellant's role extended to all of the factors listed in paragraphs (a) to (g) of section 6302 of the Regulations. The Court Order clearly placed the primary responsibility for the care and upbringing of the child on Edward Nobles and it is clear on the evidence that he in fact fulfils that responsibility.
[9] There can be only one eligible individual in relation to a qualified dependant for a particular period. The question which must be determined pursuant to section 174 of the Act is therefore answered as follows: The eligible individual is Edward Nobles.
[10] The Appellant's appeal will therefore be dismissed.
Signed at Ottawa, Canada, this 31st day of May 2002.
|
"Michael J. Bonner" |
T.C.J.
COURT FILE NO.: 2001-1964(IT)I
STYLE OF CAUSE: Catherine Lauder and Her Majesty the Queen
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 14, 2002
REASONS FOR JUDGMENT BY: The Honourable Judge M.J. Bonner
DATE OF JUDGMENT: May 31, 2002
APPEARANCES:
For the Appellant: The Appellant herself
Counsel for the Respondent: James Rhodes
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-1964(IT)I
BETWEEN:
CATHERINE LAUDER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on May 14, 2002 at Toronto, Ontario by
the Honourable Judge Michael J. Bonner
Appearances
For the Appellant: The Appellant
Counsel for the Respondent: James Rhodes
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1998 taxation year is dismissed.
Signed at Ottawa, Canada, this 31st day of May 2002.
|
"Michael J. Bonner" |
T.C.J.