Date: 20020624
Docket: 2002-100-IT-I
BETWEEN:
TODD CECIL WALSH,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor Judgment
O'Connor, J.T.C.C.
[1] The Notice of Appeal and the Reply to the Notice of Appeal succinctly state the main facts as follows:
...
NOTICE OF APPEAL
TAKE NOTICE THAT Todd Cecil Walsh, appeals to the Court from the Notification of Confirmation by the Minister dated October 11, 2001.
A) I was the eligible individual as defined in the Income Tax Act under section 122.6 with respect to Kolby Samuel Walsh born February 6, 1991 and Hailey Rhiannon Walsh born November 19, 1992 for the period of July 1, 1998 - July 21, 2000. Furthermore I was an eligible individual in a shared parenting arrangement for the period commencing July 22, 2000 - present.
B) I was the primary caregiver for the period of July 1, 1998 - July 21, 2000. The children and I moved out of the matrimonial house on June 30, 1998. They brought all their belongings inclusive of all their bedroom furniture, clothing and toys. During this time the children resided with me twelve nights per fortnight while their mother provided before and after school care and visitation every second weekend. Clothing requirements were sent with the children for their visit with their mother every second weekend. I provided all medical/dental appointments, direct care when the children were ill, clothing, school requirements, extracurricular activities and transportation. A shared parenting plan for the children was implemented on July 22, 2000.
...
REPLY
In reply to the Appellant's Notice of Appeal with respect to the Child Tax Benefit Notices dated August 17, 2001, the Deputy Attorney General of Canada says:
A. STATEMENT OF FACTS
1. With respect to the allegations of fact stated in paragraph A of the Notice of Appeal, he admits that the Appellant was an eligible individual commencing on July 22, 2000. He denies the balance of the allegations of fact contained therein.
2. With respect to the allegations of fact stated in paragraph B of the Notice of Appeal:
i) he admits that the Appellant and Kolby and Hailey Walsh (the "Children") moved from the matrimonial home on or about June 30, 1998;
ii) with respect to a shared parenting plan he specifically states that the Appellant and Kelly Walsh (the "Former Spouse") entered into a joint guardianship agreement on or about June 28, 1998 and a further arrangement was ordered by the Supreme Court of British Columbia on July 20, 2000;
iii) he denies that the Appellant was the primary caregiver for the period of July 1, 1998 to July 20, 2000; and
iv) he has no knowledge of the balance of the allegations contained therein.
3. The Appellant filed a Child Tax Benefit ("CTB") application on October 16, 2000.
4. The Minister of National Revenue (the "Minister") by letter dated March 13, 2001 advised the Appellant that the CTB would be paid to the Appellant for a six month period commencing March 2001 and then alternately to the Former Spouse for another six month period. The Appellant was further advised that the Former Spouse had already received the CTB payments for the Children and no retroactive CTB payments would be paid to the Appellant.
5. The Minister by Notifications for the 1998 and 1999 base years, dated August 17, 2001 determined that the Appellant was not the primary caregiver for CTB purposes for the Children.
6. In so determining the Appellant's eligibility for the CTB for the Children, the Minister relied on the following assumptions of fact:
a) the Appellant and his Former Spouse are the parents of the Children;
b) the Appellant and his Former Spouse separated on or about June 30, 1998;
c) the Appellant and his Former Spouse entered into a joint guardianship agreement dated June 28, 1998 (the "Agreement") with respect to the Children;
d) the Agreement specified that the Former Spouse would have custody of the Children from 7:30 a.m. to 6:30 p.m. Monday through to Friday and on alternate weekends;
e) the Agreement specified that the Appellant had custody of the Children from 6:30 p.m. to 7:30 a.m. Monday through to Friday and on alternate weekends;
f) the Agreement specified that the Appellant and his Former Spouse shared access to the Children on and [sic] equal number of statutory holidays, vacations and in other areas as they arose;
g) by order of the Supreme Court of British Columbia dated July 20, 2000 (the "Order") the Children were to continue going to the Former Spouse's home as per the Agreement and, in addition, the Children were to spend two evenings on one week and one evening on the other week plus alternate weekends with the Former Spouse;
h) the Former Spouse was the primary caregiver of the Children for the period from July 1, 1998 to July 20, 2000; and
i) the Former Spouse was the eligible caregiver who received the CTB for the Children for the period from July 1, 1998 to July 20, 2000.
...
[2] It is obvious that for the period July 1, 1998 to July 20, 2000 the Appellant considers that he was the primary caregiver for purposes of being entitled to the Child Tax Benefit. On the other hand, counsel for the Respondent called the former spouse as a witness and her testimony was at variance with that of the Appellant. She considered she was the primary caregiver during the period in question.
[3] It should be observed that so long as the shared parenting plan for the Children which was implemented on July 22, 2000 remains in effect, there will be no further disagreement as the parties have agreed on how to divide the Child Tax Benefit. Thus there is a relatively short period in dispute and a relatively small amount of monies involved.
[4] This appeal is quite similar to Matte v. Canada, [2001] T.C.J. No. 886 where Rowe D.T.C.J. relied on another similar case Piorkowski v. The Queen, [2000] 2 C.T.C. 2308. In Pirokowski, Dussault, T.C.J. stated at page 2 as follows:
28. I am faced here with two parties, the mother of the children on the one hand and their father (and his new spouse) on the other, who undoubtedly did their best to give their utmost attention to the care of the children and to be involved in the upbringing in a difficult joint custody situation. Each provided attention, each participated, and each got involved in his or her own way and according to his or her own means.
29. Where the evidence taken as a whole does not really tip the scales one way or another in any significant manner, one would want to find a solution that would be in line with the wish of the parties to share the custody of their children on an equal basis, which is what was essentially agreed to and adhered to in the present case.
30. Unfortunately, except where there is an agreement between the interested parties to share the child tax benefit on a six-month rotational basis, an arrangement accepted as an administrative practice by Revenue Canada, it is not possible to divide the benefit between the parents as was decided by the Federal Court of Appeal in R. v. Marshall, [1996] 2 C.T.C. 92.
On the facts in Piorkowski, Dussault, T.C.J. found that:
31. In light of the factors to be considered, which was based on care, attention, participation and involvement, and in view of the evidence adduced in the present case, I must conclude that the appellant has brought insufficient evidence to demonstrate, on a balance of probabilities, that she has satisfied the condition set out in paragraph (b) of the definition of 'eligible individual' in section 122.6 of the Act, namely that she was, during the periods of issue, the parent who primarily fulfilled the responsibility for the care and upbringing of the two children.
[5] Considerable testimony and evidence was entered by both parents as to their contributions in feeding, education, caring for, medically and otherwise, entertaining, taking to various activities, reading and general care exercised obviously assiduously by both parents. Attempts were made to even calculate how many hours per week or other time period a given child or children was with each parent. It is definitely clear that both parents contributed significantly but I am left with the task of picking one or the other as being the primary caregiver during the period in question. A representative of the Canada Customs and Revenue Agency ("CCRA") made a determination based on a questionnaire that it was the former spouse who was entitled to the Child Tax Benefit. That questionnaire considers many factors, especially those set out in Income Tax Regulation 6302. It reads as follows:
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.
[6] Considering all the evidence, I have not been convinced that the decision of CCRA was incorrect. Consequently, I find that the former spouse was the eligible individual for the period in question and consequently the appeal is dismissed.
Signed at Ottawa, Canada this 24th day of June, 2002.
"T, O'Connor"
J.T.C.C.
COURT FILE NO.: 2002-100(IT)I
STYLE OF CAUSE: Todd Cecil Walsh v. The Queen
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 5, 2002
REASONS FOR JUDGMENT BY: The Honourable Judge Terrence O'Connor
DATE OF JUDGMENT: June 24, 2002
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Nadine Taylor
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2002-100(IT)I
BETWEEN:
TODD CECIL WALSH,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on June 5, 2002 at Vancouver, British Columbia, by
the Honourable Judge Terrence O'Connor
Appearances
Counsel for the Appellant: The Appellant himself
Counsel for the Respondent: Nadine Taylor
JUDGMENT
The appeal from the Notification of Confirmation of the Minister of National Revenue respecting the Child Tax Benefit for the Appellant's two children for the period of July 1, 1998 to July 20, 2000, is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 24th day of June, 2002.
|
"T. O'Connor" |
J.T.C.C.