BETWEEN:
and
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Appeal heard on November 28, 2005, at Saskatoon, Saskatchewan
Before: The Honourable Justice D.W. Beaubier
Appearances:
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JUDGMENT
The appeal with respect to the redetermination made under the Income Tax Act regarding the child tax benefit in respect of the 2002 base taxation year is allowed and the redetermination is referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
The Appellant is awarded the sum of $100 for her out-of-pocket disbursements incurred in prosecuting this appeal.
Signed at Vancouver, British Columbia, this 13th day of December 2005.
"D.W. Beaubier"
BETWEEN:
COLLEEN HARPER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
[1] This appeal, pursuant to the Informal Procedure, was heard at Saskatoon, Saskatchewan on November 28, 2005. The Appellant testified and called her 13-year old son, Evan Ly to testify. The Respondent called Evan's father, Lam Ly and Lam's mother, Ngyet My Tu who required a Court supplied interpreter to testify.
[2] Paragraphs 6 to 11 inclusive of the Reply to the Notice of Appeal set out the matters in dispute. They read:
6. The Appellant was initially issued CTB of $1,948.36, National Child Benefit Supplement, ("NCBS") of $2,264.18 and Saskatchewan Child Benefits, ("SCB") of $247.50 for the months of July 2003 to April 2004 on the basis that she was a single parent and was the primary caregiver for the Children.
7. By CTB notice dated July 20, 2004, the Minister informed the Appellant that with respect to the 2002 base year, more specifically for the period July 2003 to April 21, 2004, that she was not entitled to the CTB, NCBS or the SCB on the basis that she was not the primary caregiver for the Children.
8. On August 17, 2004, the Appellant served the Minister a Notice of Objection with respect to the CTB redetermination for the base year 2002.
9. The Minister confirmed the CTBdetermination of July 20, 2004 by means of a confirmation letter dated November 19, 2004.
10. In so redetermining and confirming the CTB and NCBS of the Appellant, the Minister relied on the same assumptions of fact, as follows:
(a) the Appellant and Lam Ly are the natural parents of the Children;
(b) throughout the 2002, 2003 and 2004 years the Appellant and Lam Ly lived separate and apart;
(c) for the period July 1, 2003 to April 21, 2004, Lam Ly was the parent who primarily fulfilled the responsibility for the care and upbringing of the Children.
(d) for the period July 1, 2003 to April 21, 2004 the Appellant did not primarily fulfill the responsibility for the care and upbringing of the Children.
(e) the Appellant received an overpayment of CTB of $1,948.36, NCBS of $2,264.18 and SCB of $247.50 for the months of July 2003 to April 2004.
B. ISSUES TO BE DECIDED
11. The issue to be decided is whether the Appellant is entitled to the CTB for the period July 1, 2003 to April 21, 2004.
Assumptions 10 (a) and (b) are correct. The remainder are not.
[3] Evan was born on November 30, 1991 and Sara was born on August 7, 1994 to the Appellant and Lam Ly. Until he was 11 years old (November 30, 2002), Evan and Sara were cared for by their grandmother at 922 Steeves Avenue, Saskatoon. Lam lived there until November 2001 when he moved to and resided in British Columbia. He has since moved to and now resides in Calgary, Alberta.
[4] The children visited their mother, the Appellant from time to time. In May 2003 she first learned that they were not living with Lam and that Lam had moved to British Columbia with a common-law woman and their child. Contrary to a Court Order giving custody to Lam, she took custody and assumed care of Evan and Sara.
[5] She has retained them in her custody and care ever since. In July 2003, while they were visiting their grandmother, she took them to British Columbiato visit their father for three and a-half weeks contrary to a Court Order. However they did not stay with him while they were in British Columbia. They stayed with other relatives.
[6] When they returned, the children continued to live with their mother, the Appellant. Both parties have disobeyed Court orders respecting the custody of the children, visitation and their duty to keep them in Saskatchewan.
[7] However the evidence is clear, as admitted by Lam, that since November 2001 the children have not resided with him. Therefore he is not an "eligible individual" pursuant to paragraph 122.6 of the Income Tax Act.
[8] Moreover the Court accepts the evidence that since May of 2003, the Appellant has had factual custody of the children and has primarily fulfilled the responsibility for the care and upbringing of Sara and Evan. Thus the presumption in paragraph (f) is met by the female parent. Moreover the Appellant fulfills all the factors set our in Regulations 6302 (a) to (g) during the period in question.
[9] Where there is a conflict between the evidence of Colleen Harper and Lam, Colleen is believed. All of Evan's testimony is believed, as is that of his grandmother.
[10] The appeal is allowed. The Appellant was the primary caregiver of Evan and Sara for the period from May 2003 until April 21, 2004 and the Appellant was the eligible individual respecting them in that period. This matter is referred back to the Minister of National Revenue for reconsideration and reassessment accordingly.
[11] The Appellant is awarded the sum of $100 which is fixed as the amount of her out-of-pocket disbursements in prosecuting this appeal.
Signed at Vancouver, British Columbia, this 13th day of December 2005.
"D.W. Beaubier"
Beaubier, J.
STYLE OF CAUSE: Colleen Harper v. The Queen
PLACE OF HEARING: Saskatoon, Saskatchewan
DATE OF HEARING: November 28, 2005
REASONS FOR JUDGEMENT BY: The Honourable Justice D.W. Beaubier
DATE OF JUDGMENT: December 13, 2005
APPEARANCES:
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For the Appellant: |
The Appellant herself
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Counsel for the Respondent: |
Brooke Sittler |
COUNSEL OF RECORD:
Firm:
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario