Morrissey v. R. – FCA: Different panel of FCA endorses 45% shared custody test from Lavrinenko

Morrissey v. R. – FCA:  Different panel of FCA endorses 45% shared custody test from Lavrinenko

Morrissey v. The Queen (March 27, 2019 – 2019 FCA 56, Nadon (author), Near, Gleason JJ.A.).

Précis:   In the decision of Lavrinenko v. The Queen, 2019 FCA 51, blogged on this site another panel of the Federal Court of Appeal endorsed a 45% test for shared custody for the purpose of the Canada Child Tax Benefit and the GST/HST Credit.  In Morrissey the presiding panel endorsed the result in Lavrinenko.  Thus Ms. Morrissey’s appeal was allowed since her shared custody partner, Mr. Murphy, only had custody for 42.86% of the time.  Ms. Morrissey was awarded her costs.

Decision:  The panel allowed Ms. Morrissey’s appeal and endorsed the decision in Lavrinenko:


[28]  In my view, it does not matter whether the Judge’s determination is subject to the palpable and overriding error test or to the correctness standard because there can be no doubt that the percentages found by the Judge, i.e. somewhere between 57.14%/42.86% and 59.38%/40.62%, do not fall within the meaning of the words “near equal”. Hence, on the Judge’s findings of fact regarding the time spent by the appellant and Mr. Murphy with LM when he resided with them, I am satisfied that the appellant and Mr. Murphy were not shared-custody parents.

[29]  In so concluding I adopt and make mine the Reasons of my colleague Webb J.A. in Alexey Lavrinenko v. Her Majesty the Queen (2019 FCA 51) (A-410-17) [Lavrinenko] which I have had the occasion of reading in draft and with which I am in entire agreement. More particularly, I agree entirely with paragraphs 37 and 41-42 of Webb J.A.’s reasons wherein he states that “near equal” means “almost equal” and hence that “any percentage of time that cannot be rounded off to 50% would not qualify as near equal” (para. 41). As Webb J.A. explains, at paragraph 42 of his reasons, any rounding of percentages should be to the nearest whole number that is a multiple of 10 and another whole number. Specifically, any percentage between 45% and 49% should be rounded upwards to 50%, while any percentage between 41% and 44% should be rounded downwards to 40%. This approach addresses the concern that, due to a lack of precise data, “it is not always possible to accurately quantify the number of hours that the child resides with each parent and, therefore, arrive at a precise determination of the percentage of time that the child resides with each parent” (para. 42).

[30]  Like in Lavrinenko, the concern relating to a lack of precise data arises in this case. However, as I have already indicated, since the Judge concluded as a matter of fact that Mr. Murphy resided with LM at most 42.86% of the time, it is clear that, when this percentage is properly rounded down to 40% in accordance with Webb J.A.’s reasons, the appellant and Mr. Murphy did not reside with LM on a “near equal” basis. Accordingly, the appellant is not a shared-custody parent as defined under section 122.6 of the Act, and is entitled to receive the full amount of the CCTB for the years at issue.

[31]  The appeal in Lavrinenko, which raises a question identical to the one before us in the present appeal, was heard by a different panel of this Court in Toronto during the same week that this appeal was heard by this panel in St. John’s, Newfoundland. Consequently, the decisions are being released together by the Registry on this day.


Ms. Morrissey was awarded her costs.