Date: 19991201

Docket: 98-1219-IT-I

BETWEEN:

VALERIE D. BURTON,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Sarchuk J.T.C.C.

[1] By way of Child Tax Benefit Notice dated May 20, 1997, the Minister of National Revenue (the Minister) determined that the Appellant was in receipt of a child tax benefit overpayment in the amount of $4,323.89 for the period from October 1996 to April 1997 being in respect of the base taxation year 1995. The Appellant, Valerie Burton, has appealed from this determination on the basis that she was an eligible individual in respect of the qualified dependants during this period and, more specifically, that she was a person who at the relevant time resided with and was the parent of the qualified dependants who primarily fulfilled the responsibility for their care and upbringing.

Facts

[2] The Appellant and her former spouse, Blair Burton, are the natural parents of seven children, Amanda, Candy, Jason, Ellery, David, Trevor and Kevin, all of whom were, during the period in question, qualified dependants. Until the beginning of October 1996, the family resided together in Kelwood, Manitoba. From 1980 when they were married to August 1995 when the youngest child began to attend school, the Appellant was a homemaker. In 1995, she went back to work on a fulltime basis. On or about October 9, 1996, the Appellant and her former spouse separated and she left the Kelwood residence. She initially moved to St. Rose, where she was employed, and stayed with a friend for two weeks before moving into rented quarters for approximately one month. The Appellant then moved in with Cory Garrard with whom she has "cohabited since that time".

[3] The Appellant testified that during this period she returned to the family home in Kelwood on almost a daily basis after the end of her work day and did the cooking, cleaning, laundry, the chauffeuring of the boys to hockey games and looked after them when they were ill. Her former spouse agreed that she performed some of these tasks but not to the extent nor on the daily basis as asserted by her. It was evident from their testimony that there was a substantial degree of animosity between them and each went to some lengths in attempting to embellish their contribution to the care and attention provided to the children. I think it is only proper to mention that the hostility between the two parties was exacerbated by the fact that the individual with whom the Appellant is cohabiting represented her in this appeal.

[4] Towards the end of the benefit period in issue, the Appellant and her former spouse met with a mediator principally for the purpose of limiting the amount of time that the Appellant would spend at the family home. She observed that "things were going on exactly as before except I did not sleep there" and "we came to the point we had to draw a line". In Blair Burton's words the situation had reached the point where she was there too often and he "didn't want her around". They ultimately agreed that her attendance at the Kelwood residence would be limited to:

" ... two evenings per week, overseeing their after-school routine until 8 p.m. on one of the evenings (with an overnight at her home and driving them to school the next morning) and until 10 p.m. on the second evening. In addition, the children will spend every second weekend with their mother. The remaining time the children will be in their father's care."

Issue

[5] The sole issue in this appeal is whether Valerie Burton was an eligible individual in respect of the qualified dependants. The relevant portion of the definition of eligible individual in section 122.6 reads:

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,

...

[6] There are two questions of fact to be determined in this appeal. First did the Appellant, during the relevant period, reside with the qualified dependants and second, was she the parent who primarily fulfilled the responsibility for their care and upbringing.

Conclusion

[7] Sections 122.6 to 122.64 of the Income Tax Act (the Act) were enacted in 1992 in order to consolidate the existing benefits available with respect to dependant children. This benefit is payable in respect of "qualified dependants". A qualified dependant must be under 18 at the relevant time which was indeed the case with her children. The benefit is payable to an "eligible individual". In order to qualify as an eligible individual, the individual at that time must (a) reside with the qualified dependant; (b) the parent who primarily fulfils the responsibility for the child's care and upbringing. In this appeal, it is necessary for the Appellant to demonstrate that both of the above requirements have been met.

[8] With respect to the first question, there are virtually no cases in which the circumstances are even remotely similar that deal substantively with the definition of the phrase "resides with the qualified dependant". However, the phrase "resides with" was considered by Rip J. in Eliacin v. Canada.[1] The issue in that case was whether the Appellant was entitled to deduct child care expenses under section 63, an entitlement which was only available to her if the child "resided with" her. Since the question for determination in Eliacin is identical to that before me the following comments of Rip J. are relevant to this appeal:

Counsel for the respondent relied on Thomson v. M.N.R., [1946] S.C.R. 209, [1946] C.T.C. 51, 2 D.T.C. 812, a judgment of the Supreme Court, which affirmed the principle that a taxpayer may have more than one residence. In my view, this judgment in no way applies to the facts of the instant appeal. Paragraph 63(3)(d) uses the words “... the ... spouse ... resided with the taxpayer ...”. In Thomson, it was discussed whether the taxpayer had resided in Canada.

Le Petit Robert 1 defines the word “avec” (“with”) as follows:

1. (Indicates relation: simultaneous physical presence; moral agreement between a person and someone or something). In the company of (someone). See prefix “co-”. “To go walking with someone.” “My greatest pleasure is to go out with you.” “He always has his dog with him.” To be with someone: “in his or her company”. “They are always with each other.” See “auprès (de)”. “She was then with a very rich man.” Flaubert: “she lived with him....”

The same dictionary states that the word “à” (“in”) means “position in a place”.

In English, there is also a difference between the words “in” and “with”. The Shorter Oxford English Dictionary on Historical Principles defines the word “in” to mean “... the preposition expressing the relation of inclusion, situation, position, existence, or action within limits of space ....” The word also means “... within the limits or bounds of, within (any place or thing) ....”

The Shorter Oxford English Dictionarydefines the word “with” as follows:

II. Denoting personal relation, agreement, association, union, addition. ... 13. Following words expression accompaniment or addition, as associate, connect, join, marry, share, unite vbs... 19. Expressing association, conjunction, or connection in thought, action or condition ... 25. Indicating an accompanying or attendant circumstance, or a result following from the action expressed by the verb.

The English courts have had to define the words “reside with” which appear at subsection 1(4) of the Summary Jurisdiction (Separation and Maintenance) Act, 1925, (15 & 16 Geo. 5, c. 51). That subsection provides that a maintenance order is not executory if the woman “resides with” her husband. The words “reside with” were defined as meaning “residing in the same house as” (see Evans v. Evans, [1948] 1 K.B. 175, at page 182). or “living in the same house with” (see Hewitt v. Hewitt, [1952] 2 Q.B. 627, at page 631). ...   

...

It may be said in light of this case law that the words “to reside with” have a broader definition and do not mean to live in a domestic relationship; they only mean to live in the same house as someone else. ...

   Emphasis added

[9] I observe as well Black's Law Dictionary refers to "residence" as "personal presence at some place of abode with no present intention of definite and early removal and with the purpose to remain for undetermined period, not infrequently, but not necessarily combined with design to stay permanently".

[10] On the evidence before me, it is not possible to conclude that the Appellant "resided in the same house or lived in the same house with" the qualified dependants. When the Appellant testified that she commenced cohabitation with Garrard, she surely must have meant that they not only lived together "as to people living in one house" but also "as husband and wife". I can only conclude that the Appellant during the relevant period resided with Cory Garrard and therefore, cannot be said to have "resided with the qualified dependants" as that term is used in section 122.6 of the Act.

[11] In view of my conclusion with respect to this requirement, I need not consider whether the Appellant was the individual who was primarily responsible for the care and upbringing of the qualified dependants. The appeal is dismissed.

Signed at Ottawa, Canada, this 1st day of December, 1999.

"A.A. Sarchuk"

J.T.C.C.

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