http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/230656/index.do
Huneault v. The Queen (April 28, 2017 – 2017 TCC 70, Boyle J.).
Précis: This is yet another case where in a joint custody arrangement only one parent pays support. The Courts have established clear precedent that in such cases the payor parent is not entitled to treat one of the children as a dependant for tax purposes. Justice Boyle simply applied that precedent and dismissed the taxpayer’s appeal. There was no order as to costs as this was an informal procedure appeal.
Decision: The decision was straightforward:
[3] I am unable to construe this clear — albeit arguably imperfect — agreement, as imposing any obligation on Ms. Plouffe to pay child support to Mr. Huneault. This is no different in the 2011 amended agreement than in the original 2008 agreement.
[4] In the agreement I would note the following:
[5] First, the 2011 amendments were drafted by Mr. Huneault’s lawyer, the child support language does not change in any material way even though there is now shared custody beginning in 2011.
[6] Secondly, the calculations used by the two parents to compute Mr. Huneault’s obligation each year did not change following the amendments.
[7] Thirdly, Mr. Huneault’s obligation is clearly set out in the agreements between the parents. There is not a hint of any obligation in the agreements themselves for Ms. Plouffe to pay child support to Mr. Huneault. Indeed, the definition of termination event applicable to his obligation is not even triggered if Ms. Plouffe starts earning more than Mr. Huneault.
[8] Fourthly, I do not see the separate provision of the 2011 amendments that specifies each parent will be entitled to claim one of the two children as a dependant for tax purposes as creating an ambiguity, much less resolving one. This is at best evidence of an intention to do what it takes to qualify for each parent claiming a dependant; it is not evidence that they did what is necessary. It evidences a lack of knowledge of the requirement for mutual obligations, which is not surprising. It cannot create the missing obligation.
[9] Fifthly, I’m unable to construe Ms. Plouffe’s reimbursement of any excess payment by Mr. Huneault in those years where the April calculation resulted in an overpayment for the first three months of the calendar year as anything other than Ms. Plouffe was reimbursing him for his excess child support payments in January, February and March; she was not paying him child support.
[10] In short, this decision is then driven by the Federal Court of Appeal decision in Verones on the netting of amounts to be contributed under child support guidelines not being able to help a parent if that parent is the only parent obligated under the agreement to actually pay child support. That is how the provision of the statute reads and how the Federal Court of Appeal and this Court have interpreted it.
Justice Boyle dismissed the taxpayer’s appeal. There was no order as to costs as this was an informal procedure appeal.