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Docket: 2005-2283(IT)I |
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BETWEEN: |
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GINETTE LEFEBVRE, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on January 30, 2006, at Trois-Rivières, Quebec.
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Before: The Honourable Justice Alain Tardif |
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Appearances: |
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For the Appellant: |
The Appellant herself |
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Counsel for the Respondent: |
Jean Lavigne |
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JUDGMENT
The appeal against the notice of confirmation dated April 27, 2005, wherein the Minister of National Revenue denied the Appellant the Canada Child Tax Benefit and the goods and services tax credit for the period from July 2004 to January 2005, with respect to the 2003 base year and the 2003 taxation year, is dismissed, without costs, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 24th day of February 2006.
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"Alain Tardif" |
Tardif J.
Translation certified true
on this 7th day of April 2006
Aveta Graham, Translator
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Citation: 2006TCC79 |
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Date: 20060224 |
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Docket: 2005-2283(IT)I |
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BETWEEN: |
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GINETTE LEFEBVRE, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Tardif J.
[1] This is an appeal of a notice of confirmation regarding the Canada Child Tax Benefit and the goods and services tax credit for the 2003 base year and taxation year.
[2] The issues are whether the Minister of National Revenue (the "Minister") properly revised the amount of the Appellant's Canada Child Tax Benefit and determined that the overpayment was $1,586.15 for the 2003 base year, and whether the Minister properly revised the Appellant's goods and services tax credit and determined that the overpayment was $168 for the 2003 taxation year.
[3] Through a notice of redetermination dated February 18, 2005, the Minister revised the Appellant's child tax benefit for the period from July 2004 to January 2005 and determined that the Appellant was not entitled to the amount of $1,586.15 for the 2003 base year.
[4] Through a notice of redetermination dated February 25, 2005, the Minister revised the Appellant's goods and services tax credit for the period from July 2004 to January 2005 and determined that the Appellant was not entitled to the amount of $168 for the 2003 taxation year.
[5] On or around March 9, 2005, the Appellant served on the Minister a notice of objection to the notices of determination dated February 18 and 25, 2005, regarding the child tax benefit and the goods and services tax credit for the 2003 base year and taxation year.
[6] On April 27, 2005, the Minister confirmed the notices of redetermination dated February 18 and 25, 2005, relating to the child tax benefit and the goods and services tax credit.
[7] To establish and confirm the determinations regarding the 2003 base year and taxation year, the Minister made the following assumptions of fact:
(a) The Appellant and Marc Damphousse are the parents of Émilie Damphousse born on December 16, 1987;
(b) The Appellant was the eligible individual at June 19, 2004;
(c) As of June 19, 2004, Émilie Damphousse went to live with her father;
(d) During the period at issue, Émilie Damphousse lived with her father.
[8] After swearing the oath, the Appellant explained that, despite her very modest income, she had, during the relevant period, assumed all of the expenses required for the well-being of Émilie Damphousse, born on December 16, 1987, from her relationship with Marc Damphousse.
[9] She then stated that she made the payments for the tuition fees in a private school, in addition to paying for clothes, sporting equipment, etc.
[10] As her income was very modest, and since she was not able to pay for her daughter to have an experience that she felt was very necessary for her, namely educational trips, she then sold lottery tickets for a trip and collected more than $6,000 in commissions that she fully invested in the well-being of her daughter Émilie.
[11] As her relationship with her daughter had become clearly difficult, and as the father was, in her opinion, completely indifferent and totally refused to cooperate, she took legislative action to have the father assume responsibility for his daughter. Following those proceedings, an agreement was signed and Émilie has since then lived with her father.
[12] The Appellant submitted that even after the change, she continued to pay all the expenses of her minor daughter. Undoubtedly aware of the importance of the location where her daughter lived, the Appellant, rather than referring to residence, stated that her daughter's postal address was the same as that of her father who, still according to the Appellant, did not meet the criteria for entitlement to the tax benefits at the centre of the dispute.
[13] The Appellant indicated that she did not have a job and that her annual income was $5,000, while the father's income was probably more than $150,000.
[14] Assuming that the Appellant's income was very modest, it is easy to understand that the assessment represents a considerable amount and that the situation is particularly frustrating if the facts related are true, namely that the father is totally indifferent to the needs of his daughter, with such income.
[15] However, it is surprising that a mother that is so concerned with the well-being of her daughter, while being aware that the father is, in her estimation, not very responsible, cheap and very indifferent to the needs of his daughter, agreed, even requested, that her only child live with a father so unconcerned by the well-being of the child. I must admit that I was very sceptical given this paradox.
[16] The provisions of the Income Tax Act (the "Act") are very clear and below I have reproduced sections 122.5 and 122.6 of the Act:
122.5(1) The following definitions apply in this section.
. . .
"qualified dependant" of an individual, in relation to a month specified for a taxation year, means a person who at the beginning of the specified month
(a) is the individual's child or is dependent for support on the individual or on the individual's cohabiting spouse or common-law partner;
(b) resides with the individual;
(c) is under the age of 19 years;
(d) is not an eligible individual in relation to the specified month;
. . .
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,
. . .
[17] The Appellant's interpretation of the provisions of the Act is deficient because her analysis completely ignores the residence criteria. It is often the case that the parent who is greatly concerned with and invests in the well-being of the child thinks that the child tax benefit goes to them. Unfortunately, the legislator provided otherwise.
[18] Bonner J., in S. R. v. The Queen, 2003TCC649, Docket 2003-602(IT)I, wrote the following at paragraph 12:
12 The word "reside" with as used in the section 122.6 definition of the term "eligible individual" must be construed in a manner which reflects the purpose of the legislation. That legislation was intended to implement the child tax benefit. That benefit was introduced in 1993 with a view to providing a single nontaxable monthly payment to the custodial parent of a child. That payment was intended to benefit the child by providing funds to the parent who primarily fulfilled the responsibility for the care and upbringing of the child. The threshold test is whether the child resides with the parent. Physical presence of the child as a visitor in the residence of a parent does not satisfy the statutory requirement. The word "resident" as used in s. 122.6 connotes a settled and usual abode.
· O'Connor J. in Bachand v. Canada, [2004] T.C.J. No. 26, (Q.L.), at paragraph 7:
. . . Although the Appellant did attend to the care and needs of Vinson on several occasions that is not sufficient to establish residence. As mentioned there are two conditions for entitlement one being residence with the qualified dependant and the other being the primary caregiver. It may be possible in certain circumstances to consider the Appellant as the primary caregiver but even if this is so the residence requirement was not met and consequently the Appellant is not the eligible individual.
· Garon J. in Picard v. Canada, [2005] T.C.J. No. 362. (Q.L.), at paragraphs 14 and 15:
14 . . . This is not a situation in which the word "resides" in paragraph (a) of the definition of "eligible individual" can be interpreted broadly, as it can be where the concept of "residence in Canada" is involved, for example. In the context of section 122.6, physical presence on the premises is required. In this regard, it is interesting - albeit not decisive because it is a regulatory enactment - to note the French wording of paragraph 6302(g) of the Income Tax Regulations, which states that one consideration for the purposes of the definition of paragraph (h) of the definition of "eligible individual" is "le fait d'être présent auprès d'elle", [being physically present for the person] where the person to whom the word "elle" refers is clearly the dependent.
15 . . . the Court held that the children spent the majority of their time with their father, and that the provision in issue relates to a quantitative measurement of time rather than a qualitative assessment of the capabilities of both parents in carrying out the functions set forth in section 6302 of the Income Tax Regulations, supra.
· in Boutin v. Canada, [2004] T.C.J. No. 379 (Q.L.), Bédard J. of this Court stated the following at paragraph 12:
12 The concept of "residing with the qualified dependant" has been defined on many occasions by the case law. The following is a brief review of the case law.
· in Eliacin v. Canada, [1993] T.C.J. No. 144 (Q.L.), [1993] 2 C.T.C. 2635, at pages 2637 and 2638, Rip J. explained:
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It may be said in light of this case law that the words "to reside with" have a broader definition and do not mean to live in a domestic relationship; they only mean to live in the same house as someone else. It also appears that Parliament should have used the word "cohabit" to denote the act of living as husband and wife. |
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The Act uses only the words "reside with". The word "cohabitation" does not appear in the Act, and is of no relevance to the purposes of this appeal. Thus, the English case law does not help us. |
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The word "résider" ([TRANSLATION] "reside") is defined by Le Petit Robert 1 as follows: |
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In English, The Shorter Oxford English Dictionary defines the word "reside" as: |
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... 2. To dwell permanently or for a considerable time, to have one's settled or usual abode, to live, in or at a particular place. |
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The word "with", when used in the phrase "... the ... spouse ... resided with the taxpayer ..." in paragraph 63(3)(d) means two things: first, the spouse must reside customarily in the same building as the appellant, and, second, there must be a domestic relationship between the two spouses and their children. |
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· In Burton v. Canada, [1999] T.C.J. No. 833 (Q.L.) and Gibson v. Canada, [1999] T.C.J. No. 834 (Q.L.), Sarchuk J. cited part of that passage from Eliacin and added:
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I observe as well Black's Law Dictionary refers to "residence" as "personal presence at some place of abode with no present intention of definite and early removal and with the purpose to remain for undetermined period, not infrequently, but not necessarily combined with design to stay permanently". |
· In Lapierre v. Canada, [2005] T.C.J. No.o538:
... All things considered, residence implies a certain constancy, a certain regularity or else a certain permanence according to a person's usual lifestyle in relation to a given place and is to be distinguished from what might be called visits or stays for specific purposes or of a sporadic nature. When the Act sets as a condition to reside with another person, I do not consider it appropriate to attribute to the verb "to reside" a meaning which deviates from the concept of residence as it has been developed by the courts. To reside with someone is to live or stay with someone in a given place with a certain constancy, a certain regularity or else in an habitual manner.
[19] Given the Appellant's very modest income, I do not doubt that a request from her under the equity program will receive the proper attention. I cannot however vacate the assessment or order that it be vacated because my only jurisdiction is to determine whether the assessment was valid.
[20] My role is essentially to determine whether the assessment was made in compliance with the applicable provisions. In that regard, unfortunately, the answer is very clear and simple. The assessment is indeed consistent with the provisions of the Act, and I must dismiss the appeal.
[21] Consequently, the appeal is dismissed.
Signed at Ottawa, Canada, this 24th day of February 2006.
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"Alain Tardif" |
Tardif J.
Translation certified true
on this 7th day of April 2006
Aveta Graham, Translator
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CITATION: |
2006TCC79 |
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COURT FILE NO.: |
2005-2283(IT)I |
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STYLE OF CAUSE: |
Ginette Lefebvre v. Her Majesty the Queen |
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PLACE OF HEARING: |
Trois-Rivières, Quebec |
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DATE OF HEARING: |
January 30, 2006 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice Alain Tardif |
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DATE OF JUDGMENT: |
February 24, 2006 |
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APPEARANCES: |
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For the Appellant: |
The Appellant herself |
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Counsel for the Respondent: |
Jean Lavigne |
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COUNSEL OF RECORD: |
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For the Appellant:
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For the Respondent: |
John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Canada |
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