[OFFICIAL ENGLISH TRANSLATION]
2000-4513(IT)I
BETWEEN:
MICHÈLE BÉNARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on February 12, 2002, at Montréal, Quebec, by
the Honourable Judge Louise Lamarre Proulx
Appearances
Counsel for the Appellant: France Brosseau
Counsel for the Respondent: Philippe Dupuis
JUDGMENT
The appeal from the determination of the child tax benefit for the appellant's children, Jayson and Jessica, for the months from July 1999 to February 2000, for the 1998 base year, is allowed with costs in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 16th day of April 2002.
|
"Louise Lamarre Proulx" |
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Date: 20020416
Docket: 2000-4513(IT)I
BETWEEN:
MICHÈLE BÉNARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Lamarre Proulx, J.T.C.C.
[1] This appeal, governed by the informal procedure, concerns the child tax benefit under section 122.6 of the Income Tax Act (the "Act"). The point for determination is which of the two parents, the appellant or Jayson Koshelowsky, primarily fulfilled the responsibility for the care and upbringing of their two children, Jayson and Jessica, during the period from July 1999 to February 2000.
[2] The facts on which the Minister of National Revenue (the "Minister") relied in making his assessment are described in paragraph 5 of the Reply to the Notice of Appeal (the "Reply") as follows:
[TRANSLATION]
(a) the appellant and Jayson T. Koshelowsky are the parents of the following chidren:
(i) Jayson, born on August 31, 1995;
(ii) Jessica, born on July 30, 1996.
(b) on February 4, 2000, the appellant informed the Minister that her children, Jayson and Jessica, had no longer been under her care since the start of February 2000;
(c) in February 2000, the father, Jayson T. Koshelowsky, filed an initial child tax benefit application, alleging that he had obtained legal custody of his children, Jayson and Jessica, and that he had been the parent who primarily fulfilled the responsibility for the care and upbringing of his children since June 28, 1999;
(d) when that application was processed, it became apparent that, in February 1999, Jayson T. Koshelowsky had become the parent who primarily fulfilled the responsibility for the care and upbringing of his children;
(e) the appellant left the marital home on February 8, 1999;
(f) the appellant did not inform the Minister that her children, Jayson and Jessica, had no longer been under her care since her departure from the marital home on February 8, 1999;
(g) the appellant returned to live at the marital home on July 17, 1999, until January 30, 2000;
(h) the Minister asked the appellant's agent to provide him with proof that Jayson had been under the appellant's care during the period from July 1999 to January 2000 as follows:
(i) the first request by telephone on June 8, 2000,
(ii) the second request in writing on July 13, 2000;
(i) in a telephone conversation on July 20, 2000, the appellant's agent told the Minister that her client could not provide any proof that she had attended to her child's care and upbringing;
(j) on July 24, 2000, the Minister confirmed the notice of Canada Child Tax Benefit dated March 20, 2000, for the 1998 base year, determining that the appellant was no longer the person who had primarily fulfilled the responsibility for the care and upbringing of her children, Jayson and Jessica, during the period from July 1999 to February 2000 inclusive.
[3] The appellant admitted subparagraphs 5(a) to (i) of the Reply.
[4] The appellant testified for the appellant party, and Jayson Koshelowsky testified for the respondent party.
[5] The appellant filed as Exhibit A-1 a judgment by the Court of Quebec dated July 14, 1999, awarding custody of the two children to their father. That judgment noted the mother's absence from the family home since February 1999 and stated that the security and development of the two children had been compromised. It also stated, in particular, that the mother had agreed to hand the children over to the father, at least temporarily until a divorce had straightened out the situation.
[6] From July 17, 1999, to January 30, 2000, the appellant returned to live at the marital home. This is the period involved in determining which individual is eligible for the child tax benefit.
[7] The appellant began her testimony by complaining about the violent atmosphere to which her former spouse had subjected her during their marital life. With respect to her children, she explained that she had prepared the morning and evening meals as well as a snack upon their return. The children were happy to see her again when they returned from the day care centre, as was she. She bathed the children after supper. On the days when the children did not go to day care, she took part in activities with them in the house or yard.
[8] The children's father explained that he had driven the children to the day care but that another person sometimes had to do it because his car was in poor repair. He also said that, if one of the children was ill, it was he who had taken the child to the doctor's office. He said he attended to the children a little.
[9] Exhibit A-3 is an application dated February 23, 2000, for extension of the order of July 14, 1999. The application was made by the Director of Youth Protection and stated, in particular, that the mother had left the home on January 24, 2000, as a result of a violent act committed by her former spouse. Exhibit A-4 is the judgment dated December 19, 2000, ordering that the children remain at the father's home. The judgment took note of the efforts the parents had made to improve their parental ability.
[10] Exhibit A-5 is the report dated July 18, 2000, for the Court of Quebec, Youth Division, prepared by Marielle Plante, a family assistant. The social monitoring began on November 23, 1999. The children, Jayson and Jessica, attended a family day care three or four days a week. The report outlined the problems the parents had in their relations with their children and stated that the mother showed a genuine desire to improve and develop better relations with her children. The father was apparently not particularly interested by the family assistant's monitoring. He had trouble understanding the importance that the children's relationship with their mother had for them.
[11] Exhibit A-6 is a report prepared by Daniel Charbonneau dated March 29, 2000, stating that the mother had difficulty in her role supervising her children and that the father was potentially violent and occasionally lost control over his drinking.
[12] The relevant portion of the definition of "eligible individual" in section 122.6 of the Act reads as follows:
122.6 Definitions - In this subdivision,
"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,
(f) where the 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.
[13] Subsection 6301(1) of the Income Tax Regulations (the "Regulations") reads as follows:
Non-application of presumption - (1) For the purposes of paragraph (g) of the definition "eligible individual" in section 122.6 of the Act, the presumption referred to in paragraph (f) of that definition does not apply in the circumstances where
(a) the female parent of the qualified dependant declares in writing to the Minister that the male parent, with whom she resides, is the parent of the qualified dependant who primarily fulfils the responsibility for the care and upbringing of each of the qualified dependants who reside with both parents;
(b) the female parent is a qualified dependant of an eligible individual and each of them files a notice with the Minister under subsection 122.62(1) of the Act in respect of the same qualified dependant;
(c) there is more than one female parent of the qualified dependant who resides with the qualified dependant and each female parent files a notice with the Minister under subsection 122.62(1) of the Act in respect of the qualified dependant; or
(d) more than one notice is filed with the Minister under subsection 122.62(1) of the Act in respect of the same qualified dependant who resides with each of the persons filing the notices if such persons live at different locations.
[14] Section 6302 of the Regulations describes the factors applicable to the notion of care and upbringing of a child:
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 hygenic 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.
[15] Paragraph (f) of the definition of "eligible individual" in section 122.6 of the Act provides that, where the qualified dependant lives with his mother, there is a presumption that the person who primarily fulfils the responsibility for the care and upbringing of the qualified dependant is the mother.
[16] Is that presumption rebuttable? Paragraph (g) of the definition of the term "eligible individual" in section 122.6 of the Act states that the presumption referred to in paragraph (f) does not apply in prescribed circumstances. Subsection 6301(1) of the Regulations enumerates four circumstances in which the presumption does not apply. None of paragraphs (a) to (d) of that provision applies to the circumstances in this case.
[17] It must therefore be determined whether, apart from the factors stated in subsection 6301(1) of the Regulations, the presumption provided for in section 122.6 of the Act can be rebutted by other means.
[18] In Cabot v. Canada, [1998] T.C.J. No. 725 (Q.L.), Judge Rip had to decide the same question. In that case, the appellant and his spouse had separated, and the spouse had agreed that Mr. Cabot would have custody of the children. In July and August 1994, the children lived with Mr. Cabot at his mother's home. In September 1994, Mr. Cabot, his spouse and their children resumed life together and lived together for two years. From March to October 1996, Mr. Cabot, having been convicted of a crime, lived at a halfway house and was in prison in November and December 1996. Mr. Cabot contended that, from August 10, 1994, to March 1996, he had had custody of the children, despite that he and his children had been living with their mother.
[19] In Cabot, the respondent contended that the presumption of section 122.6 of the Act was not rebuttable by factors other than those set out in subsection 6301(1) of the Regulations. Counsel for the respondent referred to the maxim, expressio unius est exclusio alterius, in asserting that, since Parliament had set out four exceptions to the presumption, the failure to state another must be considered intentional.
[20] Judge Rip dismissed the respondent's arguments and held that the presumption under section 122.6 must be rebuttable within the ordinary meaning of the statutory and regulatory provisions. If that were not the case, there would be a risk of granting the child tax benefit to a parent who did not fulfil the responsibility for the care and upbringing of the child. Such a result would defeat the purpose of the benefit.
[21] Thus, given the legislative context of the presumption under paragraph (f) of the definition of "eligible individual" in section 122.6 of the Act and the purpose of the Act, the presumption is also rebuttable with regard to the factors stated in section 6302 of the Regulations, which are used to determine the status of "eligible individual". That section is quoted in paragraph 14 of these reasons.
[22] First of all, I must say that care must be taken in granting the status of eligible individual to a violent spouse claiming to be the person who takes the best care of his children. Establishing a climate of violence in the family home does not amount to taking good care of one's children nor does a failure to facilitate and foster a loving relationship between the mother and her children. In my view, the evidence showed that the children's father unfortunately did not encourage a climate of family harmony.
[23] The Minister's agents based their decision to a great extent on the fact that the appellant had left the home on February 8, 1999, and that the father had taken care of the children until the appellant returned on July 17 of that year. It is not that period that is in issue here, and one cannot know why the mother left.
[24] I find that the evidence showed instead that, during the brief period of time when she was back in the family home, the appellant put more love and attention each day into the care and upbringing of the children than the father. I am not saying that the mother's conduct was perfect. Based on the reports, she has trouble supervising and guiding her children. Perhaps she would have done better if she had had the calm and peaceful support of the children's father. The situation was not all black and white. It is possible that the two parents, in their own way, truly wanted what was good for their children, but I find that in the circumstances of this case, the appellant was the eligible individual for the purposes of the child tax benefit during the period in issue.
[25] The appeal is allowed with costs.
Signed at Ottawa, Canada, this 16th day of April 2002.
|
"Louise Lamarre Proulx" |
J.T.C.C.