Date: 20000616
Docket: 98-1159-IT-I
BETWEEN:
HANK DAVIS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Bowie J.T.C.C.
[1] This appeal is about the entitlement to the child tax credit which is payable under subdivision a.1 of Division E of the Income Tax Act (the Act) for the period between January and September 1995 in respect of the Appellant's daughter Elise. The Minister of National Revenue (the Minister) determined that the Appellant's former wife (to whom I shall refer as "the mother") was the person entitled to receive the payment. The Appellant's position is that he is the one entitled.
[2] The marriage of the Appellant and the mother broke down in the spring of 1993, or at some time before that. Elise was, by a written agreement of the Appellant and the mother, in their joint custody, living in turns with each of them for periods of two weeks at a time. The Appellant and the mother both lived in the province of Quebec at that time, he in Montreal and she in Joliette. At some point prior to the summer of 1994, the Appellant moved his residence to St. John's, Newfoundland, taking Elise with him. His evidence was that he had the mother's oral agreement to do so. In July 1994 he took his daughter to Joliette, Quebec where she stayed with her mother for a month. At the end of that month, the Appellant returned to pick her up and take her back with him to St. John's.
[3] At some point thereafter, and the evidence is unclear as to exactly when, the Appellant began proceedings in the courts of Newfoundland to obtain sole custody of Elise. At some time thereafter the mother began similar proceedings in the courts of the province of Quebec. Before any hearing date was fixed for the proceedings in the Unified Family Court of Newfoundland, the Appellant was given notice of a hearing to take place in the Quebec Court on May 5, 1995. According to his evidence, which I have no reason to disbelieve, he made arrangements, or at least thought that he had done so, through the legal office in St. John's, Newfoundland to have a legal aid lawyer in Quebec attend this hearing and secure an adjournment of it until he was able to go to the province of Quebec to participate. For reasons not known to the Appellant, he was not represented at that hearing on May 5, and as a result an interim custody order was made in his absence giving custody to the mother. A further hearing date was fixed for August 1995. The Appellant testified that he went to Joliette and attended the hearing in August, and that upon entering the courthouse he was arrested and charged with abduction for failing to honour the interim order that had been made in his absence in May. At that time the interim order was either extended, or made permanent. The Appellant's trial date on the abduction charge was fixed for October 1995. Elise had accompanied the Appellant to Quebec in August, and she remained there with her mother pursuant to the August Order of the Quebec Court.
[4] In October, as a result of a plea bargain, the Appellant entered a plea of guilty and paid a $200 fine to avoid what he was told would have been a lengthy trial on the abduction charge.
[5] The Appellant testified that Elise now resides with him in St. John's, as the result of an Order made in 1997 upon the consent of the mother.
[6] The Minister's position is that the Appellant is foreclosed from being considered the "eligible individual" during the period between January and September 1995 by reason of his conviction for abduction, and the May 5 Order granting custody to the mother. Counsel for the Respondent relied upon the maxim ex dolo malo non oritor actio. The Appellant's position is that prior to May 1995 there was no custody order; custody was joint by agreement between him and the mother. He was not made aware of the May Order, and so is not blameworthy for not complying with it.
[7] The person who is entitled to the child tax credit from time to time is the person who satisfies the definition of "eligible individual" which is found in section 122.6 of the Act. So far as it is relevant to this case, that section reads as follows:
"eligible individual" in respect of a qualified dependant at any time means a person who at that time
(a) resides with the qualified dependant [and]
(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;
As a result of paragraph (a) of the definition, a person can only be the "eligible individual" if he or she resides with the qualified dependant at the relevant time. During the period from January 1995 to the beginning of August 1995 Elise lived with her father. He also was the parent who primarily fulfilled the responsibility for the care and upbringing of Elise during this period. Paragraph (h) of the definition requires "prescribed factors to be considered in determining what constitutes care and upbringing". Those prescribed factors are found in Regulation 6302, which reads:
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 hygienic 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.
[8] The existence of a court order is only one factor to be taken into account. It is obvious that the other factors could only have been fulfilled by the Appellant in the present case during the January to August period.
[9] I do not doubt the relevance of entitlement to custody in determining who has fulfilled the parental obligations in respect of children. However there was no custody order in place between January and May 1995, and the Appellant was not made aware of the existence of the May 5 Order until some time in August. If it had been established before me that the Appellant deliberately ignored an order of the Quebec Court relating to custody of Elise then other issues might arise. That is not the case here however, and the existence of the custody order cannot displace either the requirement to live with the child, found in paragraph (a) of the definition, or factors (a) to (g) in Regulation 6302. It is clear from the judgment of the Supreme Court of Canada in 65302 British Columbia Ltd. v. The Queen[1] that considerations of public policy will not be permitted to displace clear statutory language.
[10] In the result, the appeal will be allowed and the determination referred back to the Minister for reconsideration and redetermination on the basis that the Appellant is entitled to be considered the eligible individual in respect of Elise during the period January to August inclusive, 1995.
Signed at Ottawa, Canada, this 16th day of June, 2000
"E.A. Bowie"
J.T.C.C.