http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/127099/index.do
Luschtinetz v. The Queen (December 10, 2015 – 2015 TCC 320, Favreau J.).
Précis: The appellant was required pursuant to a court order to pay support for both his former wife and their children, who resided with the ex-wife. He claimed tax credits in respect of the children which CRA denied. His appeal to the Tax Court was dismissed.
Decision: This case was very clear cut. The appellant was required to pay support for his children who lived with his ex-wife. The credits claimed by the taxpayer were simply not available to him:
[14] This means that if a taxpayer lives apart from his or her spouse or common-law partner or former spouse or common-law partner and is required to make support payments for a dependant, the taxpayer is not entitled to claim a personal credit for the dependant under subsection 118(1) even if the taxpayer does not pay the support amounts or pays them but does not deduct them.
[15] Pursuant to the Order of the Supreme Court of British Columbia issued on June 7, 2012, the appellant was required to pay his former spouse:
- $1,092 per month for child support for the children of the marriage commencing February 1, 2012; and
- $900 per month for spousal support commencing February 1, 2012.
[16] The appellant was then required to pay support amounts, as contemplated by subsection 56.1(4) of the Act, and as a result of the application of subsection 118(5), he was not entitled to the tax credits in respect of the Eligible Dependant Amount 2012, the Eligible Dependant Amount 2013, the Children Amount 2012 and the Children Amount 2013.
[17] The appellant was not entitled to the tax credits in respect of the Disability Amount 2012 and the Disability Amount 2013 transferred from T.L. because the appellant was not entitled to claim the Eligible Dependant Credit under paragraph 118(1)(b) in respect of T. L.
[18] For these reasons, the appeal is dismissed.