http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/110679/index.do
Bertrand v. The Queen (July 8, 2015 – 2015 TCC 174, Lafleur J.).
Précis: Ms. Bertrand, who was separated from her spouse, claimed tax credits (the Canada Child tax benefit and the goods and services tax credit - collectively the “Credits) for a child, identified as X, in 2013. The Tax Court was satisfied that X did not live with Ms. Bertrand in 2013 and had been in the custody of her father, Mr. Lachance, for some time. This was based, in part, on a finding of the Québec Superior Court. Since Ms. Bertrand was not an “eligible individual” for the purposes of the Credits, the appeal was dismissed, without costs.
Decision: Unfortunately for Ms. Bertrand the Superior Court had already held that X was in the de facto custody of her father since 2010:
[18] Paragraphs 4 and 5 of the reasons for judgment of August 14, 2013, in respect of the judgment delivered on May 23, 2013, from the bench, by the Honourable Justice Pierre‑C. Gagnon of the Superior Court (Family Division) (Exhibit I‑2) (the judgment of the Superior Court), state as follows:
[TRANSLATION]
4- . . . And the second significant change is that [child X] went to live with Mr. Lachance in September 2010.
5- Mr. Lachance has since had de facto custody of [child X], despite the judgment of October 2009.
[19] The appellant agreed that this information is true.
Moreover, on cross-examination Ms. Bertrand admitted that X rarely spend time at her place of residence:
[42] For the period from May 2013 to June 2014, I find that the appellant did not reside with child X pursuant to the relevant provisions of the Act for the purposes of the GSTC and the CCTB. Indeed, the appellant agreed that child X rarely went to her house as of May 2013, namely, the date of the judgment of the Superior Court. I therefore cannot find that the appellant resided with child X during this period as the case law is clear that residence implies constancy, regularity and a certain habit. Child X only went to the appellant’s residence on some weekends in accordance with the provisions of the judgment of the Superior Court.
[43] I also find that, for the period from July 2011 to April 2013, the appellant did not reside with child X pursuant to the relevant provisions of the Act for the purposes of the GSTC and the CCTB. The appellant’s testimony did not persuade me that she resided with child X during that period. I believe I should also take into account the judgment of the Superior Court that Mr. Lachance had had de facto custody of child X since September 2010. As I mentioned above, the Superior Court is the court specialized in family matters in the province of Quebec.
[44] In light of my findings with respect to residence, it is not necessary to consider the other conditions set out in the Act in the definitions of the term ‟eligible individualˮ for the purposes of the GSTC and the CCTB.
As a result since Ms. Bertrand was not an “eligible individual” in respect of X, i.e., X did not reside with her at the material times, the appeal was dismissed, but without costs.