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Docket: 2002-2758(IT)I |
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BETWEEN: |
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KIMBERLEY MONK, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
____________________________________________________________________
Appeals heard on November 6, 2003, at Halifax, Nova Scotia
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By: The Honourable Justice C.H. McArthur |
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Appearances: |
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Counsel for the Appellant: |
Claire McNeil and Emily Watson (Student-at-law) |
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Counsel for the Respondent: |
Rebecca Gasek |
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JUDGMENT
As agreed by the Respondent, the appeal from the determination made under the Income Tax Act for the 1998 base taxation year is allowed and the determination is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the Appellant was the "eligible individual" entitled to child tax benefits pursuant to section 122.6 of the Act during the months of July to November 1999 for her son, Mitchell.
The appeal from the determination made under the Act for the 1999 base taxation year is allowed and the determination is referred back to the Minister for reconsideration and reassessment on the basis that the Appellant was the "eligible individual" entitled to child tax benefits pursuant to section 122.6 of the Act during months of June to November, 2000 for her sons, Mitchell and Logan.
Signed at Ottawa, Canada, this 13th day of January, 2004.
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McArthur J.
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Citation: 2004TCC35 |
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Date: 20040113 |
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Docket: 2002-2758(IT)I |
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BETWEEN: |
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KIMBERLEY MONK, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
REASONS FOR JUDGMENT
McArthur J.
[1] This appeal is from a child tax benefit determination for the 1998 and 1999 base taxation years. The Minister of National Revenue determined that the Appellant was not entitled to the benefit for the period March 1, 1999 to February 28, 2001 on the basis that she was not the primary caregiver for Mitchell and Logan ("the children") during that period. This was a highly emotional hearing and the parties agree that the period in question is in fact December 1, 1999 to November 30, 2000. The Respondent having agreed that the Appellant is the eligible individual from July to November 1999.
[2] Mitchell and Logan were born in 1993 and 1994, from a common-law relationship between the Appellant and Robert Monk. They separated in 1994 and in December of that year, the Family Court of Nova Scotia issued a Varied Consent Order[1] giving the Appellant sole custody of both children.
[3] On November 20, 2000, the same Court issued an Interim Variation Order[2] providing for the children to live with their father, Robert, through the week, with weekend visitation rights to the Appellant.
[4] Subsequent to her relationship with Robert, the Appellant married his cousin, Richard Monk with whom she had three more children. During the fall of 1999, the Appellant who was living in Dartmouth, went through difficult times and both she and Robert agreed it was in the children's best interests to live with their father in Ship Harbour until she became emotionally and physically able to renew her custody. The children were transferred from Bicentennial School in Dartmouth to Harbourside Elementary School in Ship Harbour. Within two weeks (December 1999), Kim and Richard, and their other three younger children moved to Lake Charlotte, about 10 minutes away from Mitchell and Logan in Ship Harbour, who were residing with their father in his parents' (Tom and Margaret) four-bedroom home. This permitted Kim to be close to the children.
[5] In the spring of 2000, the Appellant, Richard, and their three children moved into a small house[3] within 500 feet of where Mitchell and Logan resided. The Appellant remained there until the end of the period in question.
[6] The following is a brief description of the persons referred to:
(i) Kim Monk, the Appellant, mother of Mitchell an Logan born in 1993 and 1994;
(ii) Robert Monk, father of Mitchell and Logan;
(iii) Tom and Margaret Monk, father and mother of Robert and paternal grandparents of the children;
(iv) Joseph M. Monk, brother of Tom Monk and father of Richard Monk;
(v) Richard Monk, now the husband of Kim and father of Joseph, Kalen and David, who have no interest in the present appeal; and
(vi) Anna Mae Conrad, the children's teacher at Ship Harbour Elementary School.
All of the above testified except for Richard Monk.
[7] The facts, as I find them, boil down to the following. During the first six months of the relevant year, the children resided most weekdays in the home of their paternal grandparents, where their father also resided. Every week they resided two or three nights with the Appellant. While in Charlotte Lake, from December 1999 to May 2000, the Appellant would take care of her children after school from 2:30 p.m. until 6:00 p.m., when after supper they would be taken by Tom or Robert, to their grandparents' home. The Appellant would, perhaps twice during the week, on school days, go and bathe them and put them to bed. Joseph Monk testified that his brother Tom, who was on a disability pension, spent more time with the children than his son Robert.
[8] Having heard several witnesses, I have no doubt that Tom was an extraordinary grandfather. During the school's weekdays, he fed, bathed, played with the children and put them to bed. His wife Margaret and son Robert both worked outside the home and did not have the free time Tom did. On some weekday evenings, Robert spent time with his children and put them to bed. He also attended parents' school interviews.
[9] In June 2000, the Appellant and her family moved to Ship Harbour within a stone's throw of Tom's home to be closer to her children. Robert had a full-time job. The Appellant was a stay-at-home mother. During the summer months, the Appellant's five children played together and she looked after them, almost exclusively, during the day. Because her home was small and lacked facilities, the children bathed and slept in their grandparents' home. Richard's parents, John and his wife, took the three younger children to their Dartmouth home almost every weekend. They also were dedicated grandparents.
[10] Tom continued generously devoting time to the children through the period in question. Robert did what he could but remained very busy in his small newspaper business and as a school board trustee. Miss Conrad, the children's teacher, testified she had more contact with Robert than with Kim.
[11] Until the fall of 2000, the primary caregivers, Kim, Robert and Tom, interacted in harmony placing the children's best interests ahead of anything else. The children and in particular, Mitchell, were not easy to handle and all three attended to the children in their own way, as best they could. Both Kim and Tom had more time to give than Robert.
[12] From December 1, 1999 to May 31, 2000, the children slept more frequently at Tom's than at Kim's home. From June to November 2000, the Appellant spent more time with the children than Tom and Robert combined. They resided with Kim during the day and slept at Tom's more often (four or five times a week).
[13] Kim's husband, Richard, is a carpenter and he built an addition to their very modest home, which provided sleeping accommodation but no water facilities.
[14] Kim was very emotional while testifying. Robert's evidence was more articulate and more focused on showing himself in the best light. I find as a fact that from December 1, 1999 to May 31, 2000, the paternal grandparents and Robert were the primary caregivers and from June 1 to November 30, 2000, the Appellant was the primary caregiver.
[15] Section 122.6 of the Income Tax Act defines "eligible individual" in part as follows:
122.6 In this subdivision
"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 ...
Also, Regulation 6302states:
6302 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 dependent 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.
[16] Stone J. stated in R. v. Marshall:[4]
This section (122.6) of the Act contemplates only one parent being an "eligible individual" for the purpose of allowing the benefits. It makes no provision for prorating between two who claim to be eligible parents. Only Parliament can provide for a prorating of benefits but it has not done so.
[17] The eligibility of a parent claiming the child tax benefit is to be determined at any particular time. Although the benefit cannot be prorated between Robert and Kim, a determination must be made at a particular time and not on a yearly basis. When a parent fulfills the criteria of Regulation 6302 over a significant period of time, in this case six months, that parent is in that period an "eligible individual" contemplated in subsections 122.61 and 122.62.
[18] The Appellant was the eligible individual in respect of Mitchell and Logan from June 1 to November 30, 2000 as she resided with them and was the parent who primarily fulfilled the responsibility for their care and upbringing as defined in section 122.6.
[19] The appeal is therefore allowed and as agreed by the Respondent, the determination for the 1998 base taxation year is referred back to the Minister for reconsideration and reassessment on the basis that the Appellant was the eligible individual within the meaning of section 122.6 of the Act for the five-month period July to November, 1999 for her son, Mitchell. In addition, I find that the appeal for the 1999 base taxation year will also be allowed and referred back to the Minister on the basis that the Appellant was the eligible individual for the six-month period June 1 to November, 2000 for her sons, Mitchell and Logan.
Signed at Ottawa, Canada, this 13th day of January, 2004.
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"C.H. McArthur" |
McArthur J.
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CITATION: |
2004TCC35 |
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COURT FILE NO.: |
2002-2758(IT)I |
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STYLE OF CAUSE: |
Kimberley Monk and Her Majesty the Queen |
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PLACE OF HEARING: |
Halifax, Nova Scotia |
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DATE OF HEARING: |
November 6, 2003 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice C.H. McArthur |
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DATE OF JUDGMENT: |
January 13, 2004 |
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APPEARANCES: |
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Counsel for the Appellant: |
Claire McNeil and Emily Watson (Student-at-law) |
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Counsel for the Respondent: |
Rebecca Gasek |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
Claire McNeil |
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Firm: |
Dalhousie Legal Aid Service |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |