Canada ( Attorney General ) v. Young
T-2973-94
MacKay J.
20/2/96
13 pp.
Judicial review of Review Committee's decision respondent entitled to receive family allowance benefits payable for two children effective October 1988-Respondent, husband separating in 1988-Husband granted interim custody in August-Effective October, settlement agreement, corollary relief judgment providing for joint custody, although father having de facto custody-Father receiving family allowances on behalf of both children effective July 1989-Amended settlement, order effective April 1991 increasing respondent's access, but retaining joint, de facto custody provisions-Family allowance payments paid to respondent effective December 1991-In 1993 respondent informed no longer eligible to receive family allowance benefits and had received overpayment-Review Committee allowing appeal, holding respondent meeting requirements of Family Allowances Regulations, s. 9(1.2), stipulating in cases of joint custody, family allowance benefit paid to mother in absence of written request of both parents that payment be paid to father-Family Allowances Act, s. 7 providing family allowance benefit payable to mother except in specified circumstances-Regulations, s. 9(1) providing father may receive benefit where has, in fact, custody of child-Application dismissed-S. 9(1)(b) not permitting father to receive payment of family allowance benefit where parents share joint custody of children-Only applies where father has exclusive custody-Father herein not having exclusive custody-Parents shared joint custody from October 1988-Provision for de facto custody by father simply to ensure that if unable to agree, ultimate authority rested with father-Settlement, court orders providing parents to consult with each other with respect to decisions regarding health, religion, education, welfare of children, except with respect to school attended-De facto custody could not have been intended to authorize father to ignore agreed process for consultation in regard to health, religion, education, welfare-Father not having exclusive custody, not eligible to receive benefits under s. 9(1)(b)-Evidence supporting Review Committee's conclusion, implicit in application of s. 9(1.2), that parents shared joint custody of children, in fact, as in accord with terms of court orders, settlement agreement-After October 1988 father not entitled to receive family allowance benefits under s. 9(1)(b) since parents living separate and apart and father not having exclusive custody-Father not entitled to receive family allowance benefits under s. 9(1.2) as parties not having written agreement granting him right to receive family allowance payments-Family Allowances Act, R.S.C., 1985, c. F-1, s. 7-Family Allowances Regulations, C.R.C., c. 642, s. 9 (as am. by SOR/90-35, s. 4).