BETWEEN:
and
Hearing held at Montréal, Quebec, on January 9, 2007.
Judgment delivered at Ottawa, Ontario, on January 16, 2007.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: NOËL J.A.
PELLETIER J.A.
Docket: A-162-06
Citation: 2007 FCA 44
CORAM: DÉCARY J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
FRANCINE LAURIN
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
[1] Under sections 122.5 and 122.6 of the Income Tax Act, only the parent who resides with the child and on whom the child is dependent for support is the “eligible individual” for the Canada Child Tax Benefit and the goods and services tax credit.
[2] Even when the parents, in a separation agreement confirmed by a justice of the Superior Court, provide, as in this case, that [translation] “To assist the mother in receiving the children, it is agreed that she will receive family allowance benefits,” such a provision and such a judgment neither binds the Minister of National Revenue nor grants tax benefits to the parent who does not reside with the child and on whom the child is not dependent for support.
[3] Accordingly, I concur with Mr. Justice Tardif of the Tax Court of Canada (2006 TCC 124, [2006] D.T.C. No. 2825 (QL)) that in this case the Minister of National Revenue rightly issued the notices of redetermination and claimed repayment from the appellant of the overpayments totalling approximately $14,000.
[4] I deem it appropriate to quote and endorse the excerpts below from Tardif J.’s reasons for judgment, since it is important to keep others in the appellant’s situation from being foiled, so to speak, by similar agreements that are contrary to the Canadian Income Tax Act and remain so even when confirmed by a justice of the Superior Court:
[12] Unfortunately, this is not the first case in which a Superior Court judgment in matrimonial law has caused major disappointment to one of the parties concerned by the judgment when it comes to enforcing the provisions of the Income Tax Act (the "Act") with respect to financial measures such as support.
[13] I find it hard to see how the Tax Court of Canada can confirm a child custody agreement in order to legitimize payment of the Canada Child Tax Benefit. That would definitely exceed its jurisdiction. The reverse is also true: a Superior Court judgment cannot alter the tax treatment of the Canada Child Tax Benefit.
[14] At first glance, one may well wonder about the knowledge that certain lawyers may have of the provisions of the Act, knowledge that is nevertheless very important for their clients, particularly as regards the agreements they draft in matrimonial law.
. . .
[23] There is no doubt that the determination in appeal in the instant case was made in accordance with the provisions of the Act. However, this is another case in which it is clear that the payment of the amount claimed will completely disrupt a taxpayer's life, possibly for a number of years. What is equally serious are the negative consequences that that claim will have on the Appellant's relationship with her children.
[5] I note that counsel for the respondent requested in court that we encourage counsel’s client to show some leniency towards Ms. Laurin. The Court does not have authority to suggest a course of action to the Minister that the Act does not require. By no means does this prevent counsel from advising the Minister in this regard.
[6] Counsel for the respondent has waived costs.
[7] I would dismiss the appeal, but without costs in the circumstances.
“I concur.
Marc Noël J.A.”
“I concur.
J.D. Denis Pelletier J.A.”
Certified true translation
Gwendolyn May, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-162-06
STYLE OF CAUSE: FRANCINE LAURIN v.
HER MAJESTY THE QUEEN
DATE OF HEARING: January 9, 2007
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: NOËL J.A.
PELLETIER J.A.
APPEARANCES:
Francine Laurin APPELLANT
Mounes Ayadi FOR THE RESPONDENT
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR THE RESPONDENT
Department of Justice Canada
Montréal, Quebec