http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/110265/index.do 
Curry v. The Queen (June 18, 2015 – 2015 TCC 152, V. Miller, J.).
Précis: The only point at issue in this appeal was whether Mr. Curry was entitled to “claim the tax credits for a Wholly Dependent Person and the Child Amount (the “Tax Credits”) with respect to his daughter in his 2011 and 2012 taxation years”.
He was self-represented and his argument is difficult to follow. He seems to have argued that both he and his ex-wife were paying support and that since she received the Tax Credits prior to 2011 he should receive them in 2011 and 2012. The Court held that although the amount of his support obligation was netted against his ex-wife’s notional support amount, he was the only person as a matter of fact and law paying support in 2011 and 2012 and therefore was not entitled to the Tax Credits. As a result his appeal was dismissed.
Decision: Subsection 118(5) prohibits claiming the Tax Credits where the taxpayer is paying child support and living separate and apart from a spouse or former spouse:
Support
(5) No amount may be deducted under subsection (1) in computing an individual’s tax payable under this Part for a taxation year in respect of a person where the individual is required to pay a support amount (within the meaning assigned by subsection 56.1(4)) to the individual’s spouse or common-law partner or former spouse or common-law partner in respect of the person and the individual
(a) lives separate and apart from the spouse or common-law partner or former spouse or common-law partner throughout the year because of the breakdown of their marriage or common-law partnership; or
(b) claims a deduction for the year because of section 60 in respect of a support amount paid to the spouse or common-law partner or former spouse or common-law partner.
The support obligations of the parties were the subject of a number of orders:
[4] The Appellant and his former spouse have been living separate and apart since at least September 2002. On November 21, 2002 the Ontario Court of Justice issued an Order granting them joint custody of their Child. In that Order, the Appellant was directed that he “shall pay child support in the amount of $296.00 per month”. The amount of child support which the Appellant had to pay was calculated by deducting the former spouse’s contribution to child support from that payable by the Appellant.
[5] Following the November 2002 Order, the Appellant and/or his former spouse made applications to the Ontario Court of Justice on several occasions. The following Orders were issued as a result of those applications:
a) On June 15, 2010, the former spouse was given sole custody of the Child and the Appellant was given access on various terms. There was no mention of child support in the Order and the child support continued to be payable in accordance with the Order dated November 21, 2002.
b) On January 4, 2012, the Appellant was again given joint custody of the Child. According to the Order the Appellant’s payments for child support were in arrears.
c) On April 10, 2012, the Appellant was ordered to pay ongoing child support in the amount of $247.98 monthly commencing on January 1, 2012 based on his income of $30,199.
d) On June 3, 2013, the Appellant was ordered to pay child support in the amount of $88 monthly commencing July 1, 2012 “based on an offsetting 2012 incomes”.
e) The June 3, 2013 Order was amended on September 23, 2013 to reflect that the commencement date for child support of $88 should have been July 1, 2013.
The Court held that the effect of these orders in 2011 and 2012 was that only Mr. Curry paid support and, accordingly, the appeal was dismissed:
[15] The child support payments for 2011 were made in accordance with the Order dated November 21, 2002 and those paid in 2012 were made in accordance with the Order dated April 10, 2012.
[16] Paragraph 17 in the November 21, 2002 Order addressed the amount of the child support that the Appellant had to pay. It read:
17. Commencing September, 2002, the Applicant/father shall pay child support in the amount of $296.00 per month, payable on September 1, 2002, based on the sharing of time between the parties. This is calculated on the Applicant/father’s income of $45,200.00 at $389.00 per month, and less the Respondent/mother’s contribution of $93.00 per month based on he (sic) income of $11,700.00.
[17] According to this paragraph, both parents are required to contribute to the Child’s maintenance but once the former spouse’s contribution is set-off against the Appellant’s contribution, only the Appellant had to pay a support amount: Verones v R, 2013 FCA 69. It is clear from the wording of the Order that only the Appellant had to pay a support amount for 2011.
[18] Paragraph 2 of the Order dated April 10, 2012 reads:
2. Calvin Curry shall pay ongoing child support for the child… born October 22, 2000 in the amount of $247.98 per month commencing January 1, 2012, based on a 2011 line 150 income of $30,199.00.
[19] In 2012, the Appellant was required to pay child support and he was not eligible to claim the Tax Credits.
[20] The former spouse should not have been reassessed to claw back the Tax Credits which she had claimed in 2011. The appeal is dismissed.