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Citation: 2005TCC29 |
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Date: 20050216 |
Docket: 2004-910(IT)I |
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BETWEEN: |
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LINDA SEYMOUR, |
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Appellant, |
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And |
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HER MAJESTY THE QUEEN, |
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Respondent. |
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____________________________________________________________________
For the Appellant: The Appellant herself
Counsel for the Respondent: Emmanuelle Faulkner
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REASONS FOR JUDGMENT
(Delivered orally from the Bench at
Montreal, Quebec, on November 25, 2004)
McArthur J.
[1] These are appeals in respect of determinations by the Minister of National Revenue that the Appellant had received overpayments of child tax benefits for the base taxation years 1999, 2000 and 2001 in the amounts of $1,144.24 (October 2000 to June 2001), $2,071.67 (July 2001 to June 2002) and $1,909.22 (July 2002 to June 2003), respectively, as well as overpayments of goods and services tax credits for the 2001 and 2002 taxation years in the amounts of $112.00 and $28.50, respectively.
[2] The Appellant and Danny Confalone were married in 1985 and had two children, Michael born in 1986 and Amanda born in 1987. The Appellant and Danny have been living separate and apart since prior to 1999. Both parties claim to be the eligible individual with respect to Michael during the relevant periods. The Appellant admits that Michael was living with his father five days per week during the periods because his father lived closer to the school Michael attended. However, the Appellant states that she is the eligible individual for her son because (a) her former spouse could not receive the child tax benefits because he did not file income tax returns; and (b) she and Danny decided that she would receive the benefits and she would pay for her son's clothing, school, bus pass, and other expenses.
[3] The evidence was contradictory as to who paid for Michael's expenses and as to whether the Appellant saw Michael every weekend or every fourth weekend. Be that as it may, it is clear that Michael was living with his father during the periods in issue. The question of residency is very clear in section 122.6 of the Income Tax Act with respect to child tax benefits and "eligible individual" is described as follows:
122.6 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,
(c) ...
[4] Counsel for the Respondent provided the following decisions in respect of child tax benefits and eligible individual: Bachand v. Canada, 2004TCC1, Burton v. Canada, [1999] T.C.J. No. 833, and Loyer v. Canada, [2001] T.C.J. No. 71. In Bachand, O'Connor J. stated:
... The benefit is payable to an "eligible individual". In order to qualify as an eligible individual, the individual at that time must (a) reside with the qualified dependant; and (b) be the parent who primarily fulfils the responsibility for the child's care and upbringing. In this appeal, it is necessary for the Appellant to demonstrate that both of the above requirements have been met.
In Burton, Sarchuk J. stated:
... I can only conclude that the Appellant during the relevant period resided with Cory Garrard and therefore, cannot be said to have "resided with the qualified dependants" as that term is used in section 122.6 of the Act.
In view of my conclusion with respect to this requirement, I need not consider whether the Appellant was the individual who was primarily responsible for the care and upbringing of the qualified dependants. ...
And in Loyer, Lamarre J. stated:
To satisfy the definition of "eligible individual", a taxpayer must meet two cumulative conditions, namely residing with the qualified dependant and primarily fulfilling the responsibility for the care and upbringing of the qualified dependant.
It is possible for a taxpayer to be considered the primary caregiver yet not be the eligible individual because he or she did not meet the residency requirements.
[5] During the periods in issue, the Appellant's son Michael resided with his father and for that reason, I dismiss the appeals.
Signed at Ottawa, Canada, this 16th day of February, 2005.
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"C.H. McArthur" |
McArthur J.
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CITATION: |
2005TCC29 |
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COURT FILE NO.: |
2004-910(IT)I |
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STYLE OF CAUSE: |
Linda Seymour and Her Majesty the Queen |
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PLACE OF HEARING: |
Montreal, Quebec |
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DATE OF HEARING: |
November 25, 2004 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice C.H. McArthur |
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DATE OF JUDGMENT: |
December 3, 2004 |
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APPEARANCES: |
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For the Appellant: |
The Appellant herself |
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Counsel for the Respondent: |
Emmanuelle Faulkner |
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COUNSEL OF RECORD: |
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Name: |
N/A |
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Firm: |
N/A |
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For the Respondent: |
John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Canada |