Zara v. R. – TCC: 40% of time with shared custody parent amounted to “near equality”

Zara v. R. – TCC:  40% of time with shared custody parent amounted to “near equality”

Zara v. The Queen (March 31, 2017 – 2017 TCC 45, Boyle J.).

Précis:   This is another in a long line of cases dealing with shared custody parents and their entitlement to child tax benefits.  The test to be applied is whether the parent claiming the benefits had “near equality” of time spent having custody of the child.  Justice Boyle found that on the facts of this case 40% (or perhaps slightly more) amounted to “near equality” and allowed Mr. Zara’s appeal.  There was no order as to costs since this was an informal procedure appeal.

Decision:   The Court concluded that Mr. Zara’s time spent with the children was roughly 40% (or perhaps slightly more than that) and that based on the jurisprudence of the Tax Court that was a “near equality” entitling him to the child tax benefits sought:

[12]         It was agreed by both parties and both parents that it was appropriate to look at a typical three-week schedule which would repeat throughout the year subject to holidays.

[13]         If I do that, looking at days instead of hours in a 21-day cycle, the children slept at their father’s eight days and at their mother’s 13 days. This would be 62:38 in favour of the mother.

[14]         If I adjust for the four-and-a-half hour Monday dinner time on the mother’s weeks, it rises to 39% for the father. There would remain adjustments for the fact that all of the holidays are 50:50 which can be expected to further increase the father’s percentage somewhat.

[15]         I also note that even this approach seems to favour the mother’s percentage calculation with respect to the seven hours of each school day since it assumes residence with one parent or other during the school day.

[16]         Since they are co-parenting with shared parental responsibilities and the school and daycare are aware of the precise terms of their divorce order, it might be more appropriate to consider seven hours of each school day as 50:50.  I am not deciding that point.

[17]         When Parliament tells me to decide if it is near equal, I am not certain one need always spend hours in Court debating each hour of each day of each month.

[18]         The Respondent submits it is not necessary in this case to look at each month, but to work out the typical cycle. The Appellant agrees, as do I, with that sensible approach.

[19]         However, the Respondent wants to look at the months of July and August separately from school months. Even if we do that, then during the school months, an adjustment to the typical cycle would have to be made for the first week of September and the last week of June which are not full school weeks, if they are school weeks at all. This could be expected to further favour the father’s percentage calculation.

[20]         I think what is most important is that it is clear that the mother and the father agreed as part of their divorce to share parental responsibility and to have shared custody on a 60:40 basis, full stop.

[21]         Both parents testified that the divorce order was followed by them in practice. This is clearly a case at the margins of near equality but I must make a decision and I conclude that, in these circumstances, throughout the year the children resided near equally with each parent as that term has been interpreted and applied by this Court.

[22]         This reflects the intention of the parties and their actions in fulfilling the agreement they arrived at as part of their divorce order. The appeal is allowed.

There was no order as to costs since this was an informal procedure appeal.