http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/179871/index.do
Borgstadt v. The Queen (August 29, 2016 – 2016 TCC 185, Favreau J.).
Précis: The taxpayer had two teen-aged children, one of whom, the son, was autistic. She claimed that even though her son divided his time between her home and that of her ex-spouse, she bore the brunt of his special needs and should therefore be entitled to a full Canada Child Tax Credit. CRA limited her claim in the case of both children to 50% of the Canada Child Tax Credit and she appealed to the Tax Court in respect of her son. She had two previous appeals in the Tax Court. In one, when her son was younger, former Chief Justice Rip held that she was a shared-custody parent for her daughter but a primary custody parent for her son. In the second, the Court held that she was a shared-custody parent for her daughter (and did not rule on the son).
In this decision the Court concluded that on the evidence the parenting duties were shared on a roughly equal basis between the taxpayer and her ex-spouse. Accordingly she was a shared-custody parent for both children and only entitled to 50% of the Canada Child Tax Benefit. Her appeal was dismissed but there was no order as to costs since this was an informal procedure appeal.
Decision: The mother’s position was that the son’s special needs caused her to be the primary care giver:
[11] The appellant’s position is that, although her son sleeps approximately equal amounts of time at both places, she is the primary caregiver for her son at all times. A shared-custody on a separation agreement does not mean there is a shared responsibility. The situation here is one of a child with a disability that has endless amounts of challenges and that requires daily interventions, either with the schools, the doctors and specialists of all sorts to meet his sensory needs and to develop his social skills by peer interaction. According to the appellant, it has and will always remain her responsibility to make sure everything gets done.
The father, on the other hand, maintained that he was equally active in attending to his son’s needs:
[15] Mr. Vern Borgstadt testified without providing any receipts, invoices, emails or correspondence with the school concerning his son. He explained that he worked for the City of Whitby and, in such capacity, he had flexible hours of work and a lot of time-off. He said that he never missed any of the doctor appointments, nor any meetings with the school teachers in connection with the individual education plans of his son. Concerning the dentist appointments, he said that they were all pre-scheduled and that he paid the dentist invoices through his family medical plan.
[16] Mr. Borgstadt stated that he paid for his son’s hockey and skateboarding equipment and that he attended his son’s practices and hockey games during the weeks he had his son with him. He also mentioned that he brings his son to his cottage during the summer for a 6 to 8 week vacation where his son could go swimming, fishing and waterskiing. He described his relationship with his son from good to excellent and his son comes to him when he has a problem.
On the evidence the Court determined it could not override the Minister’s determination that the taxpayer was a shared-custody parent of her son:
[22] The issue here is to determine which one of the parents was the primary caregiver of their son when they each resided with him. The evidence is clear that the appellant’s son resided equally throughout the period for the 2011 base taxation year with both the appellant and Vern and that they were each equally the parent who primarily fulfilled the responsibility for the care and upbringing of their son when he resided with each of them.
[23] In my view, both parents respect the terms of the separation agreement and assume their respective responsibility when their son is residing with each of them. The shared-custody parent rules should apply in this instance which means that the appellant is an “eligible individual” who is a “shared-custody parent” of her son and is entitled to one-half of the CCTB for her son for the Period, as computed under subsection 122.61(1.1) of the Act.
[24] This decision should not be interpreted as minimizing the role played by the appellant in the life of her son, in particular for her emotional support, her initiatives in the scheduling of the medical appointments and her participation in the development of the individual education plans. It is difficult for the Court to evaluate the importance of those factors without the son’s testimony.
[25] Therefore, I will not disturb the Minister’s determination with respect to the son of the appellant. The appeal is dismissed.
There was no order as to costs since this was an informal procedure appeal.