Agrebi v. Canada
Between
Sami Agrebi, Appellant, and
Her Majesty the Queen, Respondent
Sami Agrebi, Appellant, and
Her Majesty the Queen, Respondent
[2014] T.C.J. No. 124
[2014] A.C.I. no 124
2014 TCC 141
Docket: 2013-318(IT)G
Docket: 2013-318(IT)G
Tax Court of
Canada
Montreal, Quebec
Jorré T.C.J.
Heard: April 17, 2014.
Judgment: May 9, 2014.
Montreal, Quebec
Jorré T.C.J.
Heard: April 17, 2014.
Judgment: May 9, 2014.
(24 paras.)
JUDGMENT:-- In accordance
with the attached Reasons for Judgment, the appeal from the determinations made
under the Income Tax Act for the
2008 and 2009 base years with respect to the goods and services tax credit, and
for the 2005, 2006, 2007, 2008 and 2009 taxation years with respect to the
Canada child tax benefit, is dismissed.
· Under the circumstances, no costs will be awarded.
REASONS FOR JUDGMENT
· JORRÉ T.C.J.:--
Issue
1 The
appellant is appealing determinations made with respect to the Canada child tax
benefit and the goods and services tax credit.
2 One
of the essential conditions to be met in order for a person to be the
"eligible individual" for the purpose of receiving the child tax
benefit and the GST credit is being resident in Canada.1
3 The
Minister of National Revenue admits that the appellant became a resident of
Canada again on July 24, 2010, and that, consequently, he is entitled to
receive the Canada child tax benefit and the GST credit as of August 2010.
4 At
issue is whether the appellant was resident in Canada in 2005, 2006, 2007, 2008
and 2009 and duringthe period from January 1 to July 23, 2010, as he contends,
or whether he was not, as the respondent contends.
Facts
5 The
appellant is from Tunisia and is a Tunisian citizen. He obtained a work permit
and came from Tunisia to work in Canada. While he was in Canada, he got married
in May 2001. In April 2002, the appellant and his wife became parents of a
daughter.
6 On
May 31, 2001, Citizenship and Immigration Canada decided to execute a removal
order against the appellant. The effect of this order was to oblige the
appellant to leave the country, which he did on December 16, 2004.
7 The
removal order also had as a consequence the termination of his Canadian work
permit.
8 The
mother was not able to take care of the child and there was no one else in
Canada who could do so.
9 Consequently,
the mother authorized the appellant to take their daughter with him and the
appellant and his daughter left for Tunisia, his country of origin, in December
2004.
10 The
appellant and his daughter remained in Tunisia until he returned to Canada on
July 24, 2010. Before his arrival in Canada the first time and during the
entire period at issue, the appellant was a Tunisian citizen.
11 The
appellant resided with his parents in Tunisia. He received considerable
financial support from his family. In addition, his sisters helped him raise
his daughter.
12 The
appellant's wife remained in Canada.
13 While
he was in Tunisia, the appellant and his wife took steps to enable him to
return to Canada. In particular, his wife filedapplications to sponsor a member
of the family class.2
14 At
last, their efforts were successful and the appellant and his daughter returned
to Canada in July 2010.
15 The
period during which the appellant was in Tunisia was difficult and all of these
events have caused serious problems for his daughter. The appellant's current
situation continues to be difficult.
Analysis
16 The
issue before me is very specific: was the appellant resident in Canada from
January 1, 2005, to July 23, 2010, a period of approximately five and a half
years?
17 During
that period the appellant was not in Canada and could not legally enter Canada.
18 The
appellant submits that he remained a resident of Canada because he left
involuntarily.
19 Determining
whether a person is resident is a question of mixed fact and law. There is
considerable case law on the subject.
20 As
the Federal Court of Appeal recognized in Canada v.
Laurin:3
· 2 ... a person is resident in the country where he or she, in the
settled routine of life, regularly, normally or customarily lives, as opposed
to the place where the person unusually, casually or intermittently stays. . .
.
21 During
the period of more than five years in question, the appellant, a Tunisian
citizen, had significant ties to Tunisia. He lived in Tunisia with his daughter
at his parents' home. He had a bank account in Tunisia.
22 During
that period, his wife was in Canada and he wanted to return to Canada,4 but he did not have the right to enter Canada. Until he obtained a
visa, there was no certainty that he would succeed in returning to Canada.
23 Under
such circumstances, I do not see how I could find that the appellant
"regularly, normally or customarily" lived in Canada during the
period of more than five years in question.5
24 Consequently,
I must find that the appellant was not resident in Canada duringthe period in
question. The appeal is dismissed.
Translation certified
true: Erich Klein, Revisor
1 See, with
respect to the Canada child tax benefit, paragraph (c) of the definition of "eligible individual"
in section 122.6 of the Income Tax Act and see as well subsection 122.61(1) of the Act. See, with respect to
the goods and services tax credit, paragraph 122.5(2)(c).
2 The efforts
made are reflected in, inter alia,
Exhibits A-10 to A-15.
3 2008 FCA 58.
See also, for example, paragraphs 11 and 12 of this Court's decision in Bower v. The Queen, 2013 TCC 183.
4 I would note
that residence is a question of fact and not intention, which is different from
the matter of domicile where intention is a factor.
5 I note that
there is a fundamental difference between the situation here and the one in Slater v. Commissioner of Taxes, [1949] NZLR 678, and as a result the
reasoning in Slater cannot apply to the circumstances
here. Mr. Slater had the right to return to New Zealand, his country, at any
time; he had significant ties with New Zealand, including his house and his
family, but he could not return for an extended period because he was being
held as a prisoner of war.
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