http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/143105/index.do
Shevchyk v. The Queen (March 22, 2016 – 2016 TCC 64, Smith J.).
Précis: This case concerned the appellant’s entitlement to the Canada Child Tax Benefit (“CCTB”) during the months of May and June of 2013. Mr. Shevchyk had a series of very serious accidents as well as a dispute with his oldest daughter, the upshot of which was that although he continued to support all three children they did not live with him during the period of his convalescence. CRA took the position that he was not entitled to CCTB’s for the three children because his oldest daughter had moved out and, CRA claimed, the Children’s Aid Society had taken custody of the two younger children. The Tax Court concluded that Mr. Shevchyk did not lose custody of the younger children and that he supported them and his oldest daughter throughout the period under appeal. As a result the appeal was allowed.
Decision: The Court accepted the taxpayer’s evidence:
[36] Although it is clear that the complaint lodged by the eldest daughter lead to an intervention by CAS, I am unable to conclude that the children were apprehended or that there was an actual removal order at that time.
[37] As a result of his injury and likely at the prodding of the CAS, the two youngest children were placed in the temporary care of a good family friend during at least the relevant period. The Appellant gave her money and remained as involved as he could despite his physical impairments.
[38] The eldest daughter, who was 17 years old at the time, left the family home in April 2013 following the dispute with the Appellant. She lived elsewhere, either with her boyfriend or with her mother, but there was nothing permanent about her situation. The Appellant remained as the custodial father and provided money directly to her, as evidenced by the receipts provided.
[39] On the basis of the above, I conclude that the Appellant has established a prima facie case that the two youngest children had not been removed by the CAS and that, while the eldest daughter had left the family home, she was still in his care and custody during the relevant period. The Appellant had not given up legal guardianship of his three children, even on a temporary basis.
On that basis his claim for CCTBs was allowed:
[47] On the basis of the above and on the particular facts of this case, I find that the three children were residing with the Appellant during the relevant period and that he was the parent who primarily assumed responsibility for their care and upbringing.
[48] In other words, I conclude that the Appellant was an eligible individual in relation to the three children for the months of May and June 2013 and therefore that he is entitled to the CCTB benefits for that period.
[49] For the reasons indicated above, I would allow the appeal and refer this matter back to the Minister on the basis that the Appellant was an eligible individual within the meaning of section 122.6 of the ITA with respect to his three children during the period May 2013 to June 2013.
The Court file was sealed at the request of the Crown to protect the identities of the minors involved. There was no order as to costs since this was an informal procedure appeal.