[OFFICIAL ENGLISH TRANSLATION]
2001-3717(IT)I
BETWEEN:
CAROLE BEAUDOIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on March 12, 2002, and May 2, 2002, at Ottawa, Canada, by
the Honourable Judge Louise Lamarre Proulx
Appearances
For the Appellant: The Appellant herself
Counsel for the Respondent: Marlyse Dumel
JUDGMENT
The appeal from the determination concerning the Child Tax Benefit for the period from July 1999 to August 2000 is allowed, and the determination is referred back to the Minister of National Revenue for reconsideration and redetermination on the basis that the appellant was the eligible individual for the period from July 1999 to the end of February 2000, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 19th day of June 2002.
|
"Louise Lamarre Proulx" |
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Date: 20020619
Docket: 2001-3717(IT)I
BETWEEN:
CAROLE BEAUDOIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Lamarre Proulx, J.T.C.C.
[1] This is an appeal under the informal procedure concerning the Canada Child Tax Benefit for the period from July 1999 to August 2000.
[2] The appellant and Jean-Marc Soutière testified for the appellant. Pierre Blondin, the appellant's former spouse, testified at the request of counsel for the respondent.
[3] The assumptions of fact on which the Minister of National Revenue (the "Minister") relied in making his determination concerning the tax benefit are set out in paragraph 11 of the Reply to the Notice of Appeal (the "Reply"), as follows:
[translation]
(a) in accordance with section 122.6 of the Act, the 1998 "base taxation year" means the months from July 1999 to June 2000 inclusive;
(b) in accordance with section 122.6 of the Act, the 1999 "base taxation year" means the months from July 2000 to June 2001 inclusive;
(c) the appellant and Pierre Blondin (the "former spouse") stopped living together on August 22, 1997;
(d) during the period at issue, the appellant and the former spouse were the parents of two children (the "children"): Jean-François, born August 12, 1992; and Marie-Andrée, born March 14, 1994;
(e) during the period at issue, the appellant and the former spouse were the parents of two "qualified dependants" within the meaning of section 122.6 of the Act;
(f) the children lived with the appellant from August 22, 1997, to March 1, 1998;
(g) the children lived with the former spouse from March 1, 1998, to July 1, 1998;
(h) the appellant and the former spouse shared custody of the children on the basis of alternating weeks from August 1998 to June 1999;
(i) under a June 9, 1999, written agreement between them, the appellant and the former spouse shared custody of the children on the basis of alternating weeks from June 1999 to March 2000;
(j) under a February 10, 2000, Quebec Superior Court judgment, the children lived with the former spouse during the week and with the appellant on weekends; and
(k) the appellant has not established that, during the periods at issue, she was the person who primarily fulfilled the responsibility for the care and upbringing of the children.
[4] The Notice of Appeal gives the following reasons for the appeal:
[translation]
...
On June 9, 1999, an agreement was reached between the parties, Pierre Blondin and myself, which agreement was ratified by a judgment rendered by the Honourable Justice Jean R. Dagenais.
Under that agreement, we agreed to shared alternating custody of the children Marie-André and Jean-François Blondin, on the basis of alternating weeks between the parents.
Also under that agreement, Mr. Blondin agreed to be responsible for all child care costs, including the proportion corresponding to my weeks of custody, in the amount of $50.00.
Mr. Blondin also agreed to pay me monthly support payments for the benefit of the children in the amount of $200.00.
The amount of the support payable for the benefit of the children was set below the amount provided for in the applicable legislation and regulations. As well, that agreement was duly signed by Mr. Blondin and confirms that Mr. Blondin waives the right to claim family allowances.
Following that judgment, Mr. Blondin refused to make the support payments. Quebec's Ministère du revenu des pensions alimentaires was obliged to collect the amount of the payments from his wages. The atmosphere then deteriorated. In the fall of 1999, we each submitted an application to change custody of the children. At the February 2000 hearing, the Honourable Justice Orville Frenette ordered a psycho-social assessment regarding custody of the children.
Under the judgment, the children live with their father during the week and with me every weekend until the assessment report is submitted. In the February 2000 judgment, Justice Frenette made no changes to the terms and conditions set out in the June 1999 judgment, which were to apply until the present case is heard on its merits.
...
[5] The appellant admitted the truth of subparagraphs 11(a) to 11(f) of the Reply. She denied the truth of subparagraph 11(g), stating that during this period she had the children every weekend, plus two days per week, for a total of four days per week. Concerning subparagraph 11(h) of the Reply, the appellant stated that this period began in July 1998. She admitted the truth of subparagraph 11(i). Concerning subparagraph 11(j), she stated that this period began in March 2000: the hearing was held in February but the written documents were received only in March.
[6] The June 11, 1999, Quebec Superior Court judgment ratifying the agreement between the parties was adduced as Exhibit A-1. That agreement is referred to in subparagraph 11(i) of the Reply and in the first paragraph of the Notice of Appeal. The clauses of that agreement concerning the children, the support payments for the children, and the Child Tax Benefit read as follows:
[translation]
...
10 The parties shall jointly have custody of the children Marie-Andrée and Jean-François, the parties agreeing to keep the children at the school in the father's neighbourhood (Lac des Fées);
20 Custody shall be in alternating periods of one full week; the turnover shall be on Mondays at 4:00 p.m. However, during the mother's week, the father shall be responsible for taking the children on Thursday evenings after school until 8:30 p.m. after which he shall return them to their mothers and on Fridays after school until 6:30 p.m. after which he shall return them to their mother's;
30 the father shall be responsible for all child care costs, including the proportion corresponding to the mother's week of custody; the parties shall each be responsible for the purchase of the clothing necessary for their periods of custody;
40 the father shall pay $200 per month as additional support for the children, payable on the first day of each month at the mother's residence until Quebec's Ministère du revenu intervenes, and then payable in accordance with Quebec's Act to facilitate the payment of support;
50 the support payments shall be made starting on July 1, 1999, and shall be indexed annually on January 1 of each year, starting on January 1, 2000;
60 the mother shall be authorized to receive the family allowances and the tax benefits for the child Marie-Andrée, subject to the applicable legislation and regulations;
70 concerning the tax deductions, the father may use the tax deductions for the child Marie-Andrée and the mother may use the tax deductions for the child Jean-François if and when the legislation and regulations so permit.
...
[7] Custody of the children is shared. The appellant pointed out that, under the agreement, she was entitled to the Child Tax Benefits and, on that basis, agreed to lower support payments for her children.
[8] In order to ensure stability in the children's education, the appellant and her former spouse decided to place the children in the Lac des Fées school in August 1999. Mr. Blondin's parents lived in this neighbourhood, and occasionally he stayed with them. He also owned a lot located beside his parents' property.
[9] The appellant stated that in the summer of 1999, she took part in many activities with her children in the evenings and on weekends. During that summer, the children attended day camps since both parents are employed. At the end of August, the children began school. According to the appellant, her parents-in-law and the children's father unfortunately did not co-operate with her.
[10] In October, Mr. Blondin took the children out of the day care centre at the school when, under the agreement, he was responsible for paying the day care costs. This situation caused the appellant considerable difficulty. She had to pick up the children at the home of her parents-in-law, who were unpleasant to her. She was unable to place the children at the day care centre during her weeks of custody because of a requirement that children attend three days per week, every week.
[11] In March 2000, according to the appellant, to her great disappointment and dismay, the period of shared custody came to an end. From Monday evening to Saturday morning, the children lived with their father. They lived with their mother from Saturday morning until Monday morning and on holidays. The February 10, 2000, Superior Court judgment was adduced as Exhibit A-2.
[12] The appellant stated that, oddly, as soon as the February 2000 court judgment returned full custody of the children to their father, he began using the services of the day care centre once again.
[13] Jean-Marc Soutière, principal of the Lac des Fées school, testified at the appellant's request. He explained that, during the period of shared custody, the appellant was very often at the school. When she lost custody of the children, she still came to the school regularly, but he was obliged to inform her that she could not have access to the teachers or to her children as before; she would have to meet with the principal, who would keep her informed on what was happening with her children. Mr. Soutière stated that the appellant took good care of her children. He stated that the father, too, loved and took good care of his children, adding, however, that since the appellant had obtained full custody of the children, they were doing better.
[14] Mr. Blondin testified. The separation took place in August 1997. He admitted taking the children out of the day care centre from October 1999 to February 2000. He submitted that, during the period at issue, he looked after the children more than did the appellant and that she was unreliable.
[15] A document entitled [translation] "Report for the Court - Youth Division" was adduced as Exhibit A-4. In particular, this report recommended that the mother have custody of the children, that the father have them every other Sunday, and that the parents communicate with each other through the social workers in order to protect the children from the adults' battle and avoid parental alienation that could harm the children's proper development. Since September 27, 2001, the appellant has had custody of the children.
Conclusion
[16] Since, under a court judgment, the father had full custody of the children starting in March 2000 and since the children did in fact live with him, it was he who was the eligible individual and it was he who was entitled to receive the Child Tax Benefits.
[17] Before that date, during the period of shared custody, I consider that it was the appellant who had that entitlement. I have read the two questionnaires completed by the children's parents as well as the family relations assessment reports, and I have heard the evidence; in my opinion, all these factors point to the importance of the bond that existed during the period at issue between the mother and her children and the unremitting supervision and counselling she provided for them. It is not my intent in so concluding to downplay the role of the father, who was and continues to be an important figure.
[18] The appeal is granted on the ground that the appellant was the eligible individual from July 1999 to the end of February 2000.
Signed at Ottawa, Canada, this 19th day of June 2002.
|
"Louise Lamarre Proulx" |
J.T.C.C.