http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/67359/index.do
Sara Peixoto DaFonseca v. The Queen (March 19, 2014 – 2014 TCC 88) involved a bitter dispute between mother [the appellant] and daughter about who was the elegible individual entitled to the Canada Child Tax Benefit (“CCTB”) and the National Child Benefit Supplement (“NCBS”) in respect of the daughter’s children raised in her mother’s house:
[1] This is a sad dispute between mother and daughter for entitlement to the Canada Child Tax Benefit (“CCTB”) and National Child Benefit Supplement (“NCBS”) in respect of two of the children for the period February, 2009 to June 2011 (the “Period”), as it pertains to the 2007, 2008 and 2009 “base taxation years”. Mother and daughter resided together at the mother’s home with daughter’s three children during the Period. The Appellant, who was the mother in this dispute and the grandmother of the two children, collected the benefits until it was redetermined by the Minister that she was not the “eligible person” during the Period with respect to those children. As a result of such redetermination dated June 20, 2011 and confirmed February 16, 2012, the Appellant was required to pay back the sum of $12,993.45 which is the subject of this appeal. The Appellant’s daughter, C, was determined to be the eligible individual during the Period.
[2] The facts not in dispute between the parties or otherwise clear from the evidence is that the daughter C, moved into her mother’s house in Thunder Bay, Ontario after becoming pregnant with her third child, D, before the start of the Period, and lived in her mother’s house during the Period and afterwards until May of 2012. C also moved into her mother’s house after becoming pregnant with her first two children and lived there as well, moving out for periods between her pregnancies, thus demonstrating a pattern of moving in with her mother during such times in her life. There is also no dispute, as C had admitted in testimony, that she experimented with and had a drug problem, at least prior to the Period, that caused her mother, the Appellant, great concern, both for her daughter and for her grandchildren, and that played a role in the Appellant wanting to have her daughter and grandchildren live in her home. There is, of course, great disagreement between mother and daughter as to the extent of the daughter’s drug problem and lifestyle and it is frankly, in the circumstances, far too simplistic to merely state that mother and daughter had serious relationship issues with one another. Unfortunately, a great deal of both of their respective testimony focused on blaming each other for their disagreements.
The court concluded that while the appellant had provided the permanent residence for her grandchildren, the mother was primarily responsible for the other aspects of care-giving:
[9] Having considered all of the above factors, I can only find the evidence strongly supports the Appellant’s position in factor (c), the maintenance of a secure environment for the children. The evidence is overwhelming that the Appellant owned the home and paid all the bills to maintain it. The contribution made by the Appellant’s daughter was minimal at best having regard to the fact the daughter and her three children lived in the Appellant’s home and contributed only small rent portions as above described. After such contributions of rent, the daughter had very little income left over as reviewed above. I accept that the Appellant was receiving the CCTB and related NCBS instead of the daughter initially during the Period and so the daughter did not have those funds then available to contribute directly, however the evidence is also clear that even when the daughter obtained a lump sum payment from the Canadian government after a determination she was the eligible individual, that she did not contribute these funds to assisting her mother in the maintenance of the home. In any event, while the Appellant did receive those funds, it is clear she used them to maintain the home and support her daughter and grandchildren.
[10] As for the remaining factors however, I must find that they all support the daughter C’s position that C was the parent primarily responsible for the care and upbringing of the children in question.
[11] More specifically, the evidence supports the fact that the daughter supervised the daily activities and the needs of the children in factor (a) above. I accept the evidence of the daughter as being more credible on this matter. The daughter testified she was not working during the Period and so, since her mother was working, it was she who woke the children, prepared breakfast, dressed and sent the older child, S, off to school, who either walked or took the bus a few blocks away, and supervised the preschool daughter, N, as well as the baby D, taking them with her to counselling lessons for her drug assistance program three times per week in the mornings to the Hope venue which had child daycare facilities. I accept the daughter’s evidence that it was she who was back home to receive her son S when he returned from school, help with home work and prepare dinner and deal with their bed time preparations. There is no dispute that it was C who signed up the children for school after she moved in with her mother and C who arranged school bus service for her son S as well.
[12] I accept also that the Appellant, as a loving grandmother, also helped in these activities from time to time, but it is clear that the Appellant, who worked shift work for two different employers, simply could not have been present on any consistent basis to primarily supervise these daily activities. She may well have come home during her breaks to check on them as she testified, but checking on her daughter and grandchildren may suggest a general oversight role, but not a direct supervision of the grandchildren.
Accordingly, the court was forced to dismiss the grandmother’s appeal and she was required to repay the CCTB and the NCBS she had received previously:
[21] I have no doubt the love and support of the Appellant, during the Period and during the daughter’s earlier pregnancies, have played a crucial role in allowing her daughter to keep and maintain the custody of her children. I have no doubt that even though the daughter testified she often left her mother’s house because of the “intolerable” situation, referencing her strained relationship with her mother who she accused of being too controlling, she had no problem tolerating her mother when her mother financially supported her and her children to the degree she did. I also have no doubt the Appellant used those funds received as CCTB and NCBS during the Period before being requested to return it for the benefit of those for whom the funds were intended, namely the children and their mother C. What emerges from the evidence is a tale of a mother who repeatedly opened her home, heart and wallet to her daughter and grandchildren. It is then almost intolerable for me to find for the Respondent in this matter as the funds were used for their intended purposes as should have been the case had the funds been directed to the daughter in the first place. However, based on the analyses of the law and facts I must find the Appellant was not the eligible individual entitled to receive such benefits during the Period as unfortunate, thankless and even insulting as this must seem to the Appellant in the circumstances. It is unfortunate the system allows funds to be paid out to a new eligible individual and a former eligible individual is asked to pay them back in circumstances where the funds are actually used for their intended purposes, but that is a matter for Parliament to address, not this Court.
[22] The Appeal is dismissed.