http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/180303/index.do
Harder v. The Queen (September 14, 2016 – 2016 TCC 197, Bocock J.).
Précis: The taxpayer paid an amount to his former spouse which represented a netting of their individual child support obligations for the two children of the marriage (based on their individual levels of income). The calculation was done by their respective lawyers using a program called “Divorce Mate”. Since the taxpayer was the only person paying support he was not entitled to dependent tax credits in respect of one of the children. Both parents could claim dependent tax credits in respect of one child only where both were actually making payments. The Tax Court Judge counselled the family law Bar to take note of the situation in order to avoid the unnecessary loss of tax credits. Unfortunately Mr. Harder’s appeal had to be dismissed. There was no order as to costs since this was an informal procedure appeal.
Decision: The Tax Court Judge expressed regret that he was forced to dismiss Mr. Harder’s appeal because of the “netting out” of support obligations by a computer program:
[10] All of these decisions or situations involve a mandatory requirement for each parent to pay an amount reflected in a court order or formal agreement marching along with conclusive evidence of actual payment being made. It does not include the expeditious use of a computer software programme, the culmination of which is a unilateral payment of a support amount by only one parent to the other.
[11] The practising family law Bar should take note. The engagement of the combined effect of subsections 118(5) and 118(5.1), at a minimum, requires a comprehensive documentary and evidentiary record. If separating spouses, seeking joint custody, wish to avail themselves of a dependent deduction for both spouses in such situations, surely family law lawyers can deploy their usual flexible skills to ignore the set off provisions within the paradoxically named “Divorce Mate” for a brief moment and mandate and effect actual periodic payments by both spouses to each other in cases of shared parenting of two or more children. Surely cheques, or even their more modern replacement of recurring e-transfers, may evidence a clearly enumerated, reciprocal and mandatory support amount paid by each spouse to the other.
[12] Regrettably, until this factual scenario is placed before the Court, sympathetic appellants, like Mr. Harder, shall have their appeals dismissed. That result will continue to be both unfortunate generally and purposively defeating of the child benefit programme specifically; dependent deductions for a second child shall remain legally unavailable to a unilateral support paying parent.
There was no order as to costs since this was an informal procedure appeal.