http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/108539/index.do 
Davidson v. The Queen (March 4, 2015 – 2015 TCC 54, Lyons J.).
Précis: Ms. Davidson was born in the United States and immigrated to Canada with her parents when she was 9 years old. In 2006 she applied to Citizenship and Immigration Canada (“CIC”) for permanent resident status. The process was protracted but she finally received a temporary work permit in 2011 and appears to have received her permanent resident status in 2012. She applied in 2011 for Canada Child Tax Benefits going back to 2006. For benefits going back more than 11 months from an application, the payment was based on an exercise of Ministerial discretion, which was not forthcoming. For the balance of her application the Minister disallowed the benefits because of Ms. Davidson’s immigration status. She appealed the Minister’s decisions to the Tax Court. The Court held that it did not have jurisdiction to review the exercise of the Minister’s discretion not to allow benefits beyond the 11 month period. For the balance of the period the Court agreed with the Minister’s position that she was not an “eligible individual” for the Canada Child Tax Benefit because she was not a permanent resident, a temporary resident or a protected person (i.e., refugee). As a result her appeals were dismissed with the parties to bear their own costs.
Decision: Ms. Davidson was appealing the disallowance of her claim to Canada Child Tax Benefits. She had a complex personal history:
[8] At the time of the hearing, Ms. Davidson was 28 years old. She was born in the United States and moved to Canada in 1994 with her parents when she was nine years old.
[9] Since then, Ms. Davidson lived in various cities in Ontario attending elementary school, high school and post-secondary education in Canada. She had not obtained a student permit from Citizenship and Immigration Canada (“CIC”) when she was in high school nor between 2005 to 2012. In June 2012, she obtained a degree of Bachelor of Science in Nursing with Honours from York University.
[10] Ms. Davidson testified that in September 2009, she removed herself and her two children, J.H. age 9 and J.E. age 6, from an abusive relationship. This created financial hardship. She was unable to afford rent, nutritious food and basic necessities. In August 2010, J.N. was born. Prior to September 2009, her husband had claimed the benefit.
[11] In September 2007, Ms. Davidson applied to CIC for permanent resident status (the “Application”). While waiting for her Application to be considered, she was unable to work until she received a work permit issued on October 20, 2011.
[12] The issue is whether Ms. Davidson is entitled to the retroactive benefits and benefits for the relevant period for her children pursuant to the provisions of section 122.6 of the
Income Tax Act (the “Act”).
[13] Ms. Davidson states that the benefit was to prevent and reduce child poverty and assist with the basic necessities of life providing income assistance to lower income families. Her position is that
although she understands the legislation, it is unfair that her lack of immigration status – especially since she had been in Canada since 1994 – results in her children suffering.
[Footnote omitted]
In 2011 she applied for Canada Child Tax Benefits dating back to 2007. After sorting through the issues the periods under appeal were as follows:
[6] The timeframe Ms. Davidson confirmed is under appeal comprise the following BTYs:
a) Part of 2008 (September 2009 to June 2010 BPP);
b) 2009 (July 2010 to June 2011 BPP);
c) 2010 (July 2011 to June 2012 BPP); and
d) Part of 2011 (July 2012 to April 2013 BPP).
The Minister allowed her claim for 2012 so it appears (although it is not clear from the decision) that she received permanent residence status in 2012.
The provision governing entitlement to the Credit was based, in part, on residence:
[15] To be eligible for the benefit, a person must qualify as an “eligible individual” as defined in section 122.6 of the Act. The relevant portion is in paragraph 122.6(e) which requires that to be an “eligible individual” in respect of a qualified dependant at any time means a person who at that time:
(e) is, or whose cohabiting spouse or common-law partner is, a Canadian citizen or a person who
(i) is a permanent resident within the meaning of subsection 2(1) of the I
mmigration and Refugee Protection Act,
(ii) is a temporary resident within the meaning of the
Immigration and Refugee Protection Act, who was resident in Canada throughout the 18 month period preceding that time, or
(iii) is a protected person within the meaning of the
Immigration and Refugee Protection Act,
(iv) was determined before that time to be a member of a class defined in the
Humanitarian Designated Classes Regulations made under the
Immigration Act, …
The Court determined that she fell within none of the four enumerated classes during the period under appeal. As well the court determined that the claim in respect of periods more than 11 months prior to her 2011 claim was entirely within the Minister’s discretion and not reviewable by the Tax Court:
[20] Pursuant to subsection 122.62(1) of the Act, the earliest juncture for which Ms. Davidson is entitled to the benefit is May 2010. As the Minister made a discretionary decision relating to the BPPs prior to May 2010 and also declined to exercise the discretion under subsection 122.62(2) to extend the time for filing under subsection 122.62(1), the Court has no jurisdiction relating to such discretionary decisions pertaining to the retroactive benefits.
[Footnote omitted]
The Court, with great sympathy for Ms. Davidson’s position, dismissed the appeal, without costs:
[44] As stated by Ms. Davidson, her efforts in pursuing higher education and obtaining a degree, against all odds, to break the cycle of poverty has contributed to the goals of reducing child poverty. Her contribution is commendable and no doubt will be an inspiration to many.
[45] The names of the children will be expunged from the transcript.
[46] Each party will bear their own costs.