Date: 20000803
Docket: 1999-3801-IT-I
BETWEEN:
LOUISE VAILLANCOURT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Lamarre Proulx, J.T.C.C.
[1] This is an appeal from the determination of the child tax benefit to which the appellant may be entitled for her children Mathieu, Marc-André and Maxime. The periods in issue are from March 1997 to May 1998 for Mathieu, from January to May 1998 for Marc-André and from November 1997 to May 1998 for Maxime.
[2] The main point at issue is whether the father or the mother was the person who primarily fulfilled the responsibility for the care and upbringing of the children. It must also be determined with which parent each of the children resided during some or a portion of the periods.
[3] In assessing the appellant's tax benefits as nil, the Minister of National Revenue (the "Minister") relied on the facts set out in paragraph 6 of the Reply to the Notice of Appeal (the "Reply") as follows:
[TRANSLATION]
(a) the appellant and Daniel Bergeron were married on July 15, 1978 and ceased living together in July 1992;
(b) three children were born from the union of the appellant and Daniel Bergeron:
(i) Mathieu on July 21, 1981,
(ii) Marc-André on October 7, 1983,
(iii) Maxime on August 18, 1986;
(c) on October 14, 1994, a consent between the parties established the following arrangements regarding custody of the children:
(i) the father was to have custody of Mathieu;
(ii) the parents were to have joint custody of Marc-André and Maxime;
(d) on December 18, 1995, a consent to vary corollary relief provided inter alia for joint custody of the three children;
(e) in February 1998, the father, Daniel Bergeron, filed a child tax benefit application alleging inter alia that joint custody of Mathieu had never been exercised and that Mathieu had always lived with his father;
(f) a review by the Minister has determined that the children lived with their father during the following periods:
(i) Mathieu, since 1993,
(ii) Marc-André, from January to June 1998;
(iii) Maxime, from November 1997 to March 1998;
(g) with respect to Maxime, the Minister determined that joint custody was exercised during the months of April, May and June 1998 and that a sharing of the tax benefits was possible with the father's consent, but no agreement was reached;
(h) on August 20, 1998, the Minister issued a notice of child tax benefit determining that the father was the person who primarily fulfilled the responsibility for the care and upbringing of the children in the 1995 and 1996 base taxation years:
(i) Mathieu, from March 1997 to June 1998;
(ii) Marc-André, from January to June 1998;
(iii) Maxime, from November 1997 to June 1998;
(i) on September 29, 1998, a consent to vary corollary relief established inter alia that the father would have custody of the children.
[4] The appellant testified on her own behalf, while the children's father, Daniel Bergeron, testified at counsel for the respondent's request.
[5] The appellant admitted paragraphs 6(a) to (d), 6(f)(ii) and (iii) and 6(i) of the Reply. She corrected the birthdate of her son Maxime shown in subparagraph 6(b)(iii) of the Reply to read August 19, 1986.
[6] The consent referred to in subparagraph 6(c) was filed as Exhibit I-1. The appellant referred to article 10 of that consent, which reads as follows:
[TRANSLATION]
10. However, the family allowances paid for the benefit of the children Mathieu, Marc-André and Maxime and the federal tax benefits paid for Mathieu, Marc-André and Maxime shall be paid to the applicant;
Any family allowances and tax benefits paid to the defendant for the benefit of the child Mathieu shall be immediately remitted to the applicant by him.
[7] The consent following the defendant's application to vary corollary relief, referred to in subparagraph 6(d) of the Reply, was filed as Exhibit I-2. The appellant referred to articles 3 to 7 of that document to show that she had paid most of the costs associated with the care and upbringing of the children.
[8] The document referred to in subparagraph 6(i) of the Reply was filed as Exhibit I-3. The appellant objected to this document being produced in view of the fact that it had been executed after the periods in issue. The first page of the defendant's application to vary corollary relief was attached to the consent. The portion of paragraph 5 of the application appearing on that first page reads as follows:
[TRANSLATION]
5. Notwithstanding paragraph 1 of the said consent, the parties have never exercised shared custody of the child Mathieu, who has lived solely with the defendant and . . . .
[9] With respect to the statement in subparagraph 6(f) of the Reply, the appellant said that Mathieu had lived with her during certain periods and with her ex-spouse during others. She had not kept any record in that regard, but that is how it was. When Mathieu got tired of one place, he went to the other. As regards Marc-André, the appellant admitted subparagraph 6(f)(ii). Marc-André thus lived with his father for the entire period in issue concerning him. As to Maxime, the appellant says that he resided with her from March to May 1998.
[10] The appellant explained that, even when the children resided with their father, she saw them every day because they went to her home after school to wait for their father to pick them up and take them home.
[11] The appellant contends that it was she who took an interest in the children's education and went to parent-teacher meetings. It was she who paid the children's education costs and who paid for their clothing. She also says it was she who took the children to the dentist and doctor.
[12] Mr. Bergeron explained that Mathieu had virtually always lived with him. He said it was true that the appellant had paid for most of the children's clothing, but that he had also bought some when necessary. He explained that he had had sole custody of his children starting in August 1998 and that he was very close to his children. He favours dialogue and sincerity over an excessively rigid approach.
[13] He filed a tax benefit application on February 20, 1998. That application was tendered as Exhibit I-5. He testified that he was the one who had always primarily cared for Mathieu, that he had primarily cared for Maxime from October 28, 1997, and that he had done so for Marc-André as of December 25, 1997.
[14] The questionnaires on which persons claiming the status of person primarily fulfilling the responsibility for the care and upbringing of children can explain the care they provide for their children and how they perceive the care given by the other parent were filed as Exhibit I-4 in the case of the appellant and as Exhibit I-6 in Mr. Bergeron's case. In the questionnaire completed by the appellant, the description of the care provided by the children's father seemed denigrating. She explained that it was not her intention to denigrate the father. Her only concern was for the welfare of her children and she wanted their father to take good care of them.
[15] "Eligible individual" is defined in section 122.6 of the Act. I cite the relevant portion below:
"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,
. . .
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;
[16] Subsection 6301(1) of the Income Tax Regulations reads as follows:
(1) For the purposes of paragraph (g) of the definition "eligible individual" in section 122.6 of the Act, the presumption referred to in paragraph (f) of that definition does not apply in the circumstances where
(a) the female parent of the qualified dependant declares in writing to the Minister of National Health and Welfare that the male parent, with whom she resides, is the parent of the qualified dependant who primarily fulfils the responsibility for the care and upbringing of each of the qualified dependants who reside with both parents;
(b) the female parent is a qualified dependant of an eligible individual and each of them files a notice with the Minister of National Health and Welfare under subsection 122.62(1) of the Act in respect of the same qualified dependant;
(c) there is more than one female parent of the qualified dependant who resides with the qualified dependant and each female parent files a notice with the Minister of National Health and Welfare under subsection 122.62(1) of the Act in respect of the qualified dependant; or
(d) more than one notice is filed with the Minister of National Health and Welfare under subsection 122.62(1) of the Act in respect of the same qualified dependant who resides with each of the persons filing the notices where such persons live at different locations.
[17] Section 6302 of the Income Tax Regulations 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 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.
[18] The definition of "eligible individual" requires that the dependant reside with the eligible individual. Thus, for the periods referred to in subparagraphs 6(f)(ii) and (iii) of the Reply, with respect to which the appellant admitted that there had been no joint custody, the appellant is not an eligible individual and is not entitled to the child tax benefit for those periods or for the children concerned. Therefore, as Marc-André lived with his father during the entire period in issue, the appellant is not entitled to the child tax benefit for him.
[19] With respect to Maxime, the period in issue is from November 1997 to May 1998. He apparently resided with his mother during the last three months of that period. As to Mathieu, the father states that he usually lived with him. The mother asserts that Mathieu resided with her for long periods of time. The evidence is not clear as to the periods during which Mathieu resided with either one.
[20] For the period when they had joint custody of Maxime and for the period in issue respecting Mathieu, which is from March 7, 1997 to May 1998, the Court must determine on the evidence whether it was the appellant or her ex-spouse who primarily fulfilled the responsibility for the care and upbringing of the children.
[21] I will first consider Mathieu's case. When the parents separated, Mathieu was not in the sole custody of one parent. His father had sole custody of him starting on August 1, 1991. It is true that on December 18, 1995, a consent to vary corollary relief provided for joint custody of the three children. However, it does not appear that there was actually joint custody of Mathieu. In her notice of appeal, the appellant sets out what she did with respect to Mathieu from February to July 1998. I hope that the appellant clearly understands that the Court's determination of the person who primarily fulfils the responsibility for the care and upbringing of a dependant does not mean that the other person does not take care of that dependant or that his or her contribution is not essential to the child's psychological well-being. However, it is my view that the evidence shows that it is with the father that Mathieu seems to have mostly resided and I believe, based on the parents' testimony and their answers to the questionnaires, that it was the father who mainly took care of him.
[22] Now as to Maxime, who resided with his mother under joint custody for the last three months of the period in issue, let us consider the particular circumstances of that period. During the period, Maxime underwent therapy with a psychologist at his mother's request. The therapy was necessary as a result of an act by Maxime which was a possible symptom of psychological confusion. His mother also received advice from the psychologist. She took part in school meetings and activities and attended to Maxime's material and psychological needs during that period. In my view, the appellant was the person who primarily fulfilled the responsibility for the care and upbringing of the dependant during this period.
[23] The appeal is allowed with respect to the aforementioned three-month period as regards the child Maxime. For all the other periods in issue, no relief may be granted.
Signed at Ottawa, Canada, this 3rd day of August 2000
"Louise Lamarre Proulx"
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
[OFFICIAL ENGLISH TRANSLATION]
1999-3801(IT)I
BETWEEN:
LOUISE VAILLANCOURT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on June 15, 2000, at Montréal, Quebec, by
the Honourable Judge Louise Lamarre Proulx
Appearances
For the Appellant: The Appellant herself
Counsel for the Respondent: Mounes Ayadi
JUDGMENT
The appeal from the determination of child tax benefit for the periods from March 1997 to May 1998 for Mathieu, from January to May 1998 for Marc-André and from November 1997 to May 1998 for Maxime, made under the Income Tax Act for the 1995, 1996, 1997 and 1998 base taxation years is allowed with respect to the last three months of the period referred to for Maxime.
No relief may be granted for any other period in issue.
The whole in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 3rd day of August 2000.
|
"Louise Lamarre Proulx" |
J.T.C.C.