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

Apr 26, 2019 By Bill Innes

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.
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Lavrinenko v. R. – FCA: Federal Court of Appeal sets 45% floor for “shared custody” rule for the Canada Child Tax Benefit (CCTB) and the GST/HST Credit

Apr 25, 2019 By Bill Innes

Précis: “Shared custody parents” are entitled to split the Canada Child Tax Benefit and GST/HST Credits in respect of children whose custody they share on an equal or near equal basis. The courts have long held that “shared custody” does not require and exact 50/50 percentage split. The question on this appeal (and the appeal in Morrissey v. The Queen, 2019 FCA 56 which was released on the same day) was how far the flexibility of “near equal” extends. The taxpayer was unsuccessful in the Tax Court and appealed to the Federal Court of Appeal. Mr. Lavrinenko submitted that he had custody of his child 41% of the time which he argued should suffice for “near equal”. The Court of Appeal found that was not sufficient to establish near equal shared custody. While the precise rule enunciated by the Court is somewhat more complex it seems to boil down to a 45% floor for based on simple mathematical rounding principles. Thus Mr. Lavrinenko’a appeal was dismissed. Although the Crown sought costs the Court of Appeal declined to award any.
Lavrinenko v. R. – FCA: Federal Court of Appeal sets 45% floor for “shared custody” rule for the Canada Child Tax Benefit (CCTB) and the GST/HST CreditREAD MORE »

Lavalee v. R. – TCC: Taxpayer not a “shared-custody” parent because she had custody 57.29% of the time as opposed to her former spouse who had custody 42.71% of the time

Nov 14, 2018 By Bill Innes

Précis: The taxpayer was denied full Canada Child Benefits on the basis that she and her former spouse were “shared-custody” parents. CRA made that determination on the basis that she had custody 57.29% of the time as opposed to her former spouse who had custody 42.71% of the time. The statutory test was whether custody was shared on “an equal or near equal basis”: paragraph 122.6(b) of the Act. Russell J. found that using a ratio of 57.29/42.71 the taxpayer had custody of the children 34% more than her former spouse. He found that such an overage failed to meet the “near equal” test and that CRA had applied the test incorrectly. Accordingly, he allowed Ms. Lavalee’s appeal, without costs.
Lavalee v. R. – TCC: Taxpayer not a “shared-custody” parent because she had custody 57.29% of the time as opposed to her former spouse who had custody 42.71% of the timeREAD MORE »

Frobb v. R. – TCC: Taxpayer primary caregiver of her three children

Jul 09, 2018 By Bill Innes

Précis: The taxpayer was denied the Canada Child Tax Benefit and the Goods and Services Tax Credit in respect of her three children. She appealed to the Tax Court on the basis that she was the primary caregiver. The Court accepted her position and allowed the appeal. There was no order as to costs since this was an informal procedure appeal.
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Groves v. R. - TCC: Mother, sole payer of support, cannot claim tax credits for one of two children

May 24, 2017 By Bill Innes

Précis: Ms. Groves and her former spouse had joint custody of the two children of the marriage. They separated in 2011 and under the original Separation Agreement she was to pay child support to her former spouse. Under an amended Separation Agreement executed in 2015 they were each to pay child support. Ms. Groves claimed the Canada Child Tax Benefit in 2014 in respect of one child. CRA denied the claim and Ms. Groves appealed to the Tax Court. The Court held that the case law was clear that where only one parent pays child support the parent paying support is not entitled to the Tax Benefit. Thus the appeal was dismissed. There was no order as to costs since this was an informal procedure appeal.
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Leinweber v. R. - TCC: Amendments to support arrangements not effective to entitle taxpayer to child credits

Nov 23, 2016 By Bill Innes

Précis: The taxpayer and his former spouse shared custody of two children. Originally he was to pay a net amount to his former spouse. He was denied child credits for 2012 and he and his wife tried to amend their support arrangements but CRA rejected the amendments. They then applied to the Court to vary their final Order of support. The Tax Court found that neither amendment was effective. The taxpayer was still the sole person making a “net” payment to his former spouse. The appeal was dismissed. There was no order as to costs since this was an informal procedure appeal.
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Morrissey v. R. - TCC: Taxpayer a shared-custody parent - no Canada Child Tax Benefit

Aug 22, 2016 By Bill Innes

Précis: The taxpayer claimed the Canada Child Tax Benefit with respect to her son in 2012 and 2013. The Minister determined that she was a shared-custody parent of the boy and allowed her only 50% of the Credit. She appealed to the Tax Court. The Court, after a very careful review of the evidence, concluded that she was a shared-custody parent and dismissed the appeal. There was no award of costs as this was an informal procedure appeal.
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Margeau v. R. - TCC: Appellant entitled to small amount of Canada Child Tax Benefit

Aug 10, 2016 By Bill Innes

Précis: The taxpayer claimed Canada Child Tax Benefits for both children of her former marriage. CRA denied most of the Benefits on the basis that the taxpayer and her ex-spouse were shared-custody parents during most of the period. In the end it boiled down to a question of credibility and the Tax Court preferred the evidence of the father, i.e., that the children were primarily in his custody during the period in question. The mother was held however to have had sole custody of one of the children during the month of July, 2014.
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Crete v. R. - TCC: Appeal of over-payment of Canada Child Tax Benefits by shared-custody parent rejected

Jul 27, 2016 By Bill Innes

Précis: Ms. Crete separated from her ex-spouse in early 2012 and thereafter she and he ex-spouse shared custody of their children. She continued to receive Canada Child Tax Benefits as before until 2014 when, in response to a CRA request for confirmation of her status, she indicated that he was a shared-custody parent (in addition, CRA admitted that she had specifically informed CRA of the shared custody arrangement in late 2013). As a result of that she was assessed for overpayments of Canada Child Tax Benefits (and related GST Credits).
Crete v. R. - TCC: Appeal of over-payment of Canada Child Tax Benefits by shared-custody parent rejectedREAD MORE »

Karim v. R. - TCC: Occasional visits by daughter not enough for Canada Child Tax Benefit

Apr 25, 2016 By Bill Innes

Précis: Mr. Karim claimed, and was denied, the Canada Child Tax Benefit and other credits in respect of his 13 year old daughter. Mr. Karim appealed to the Tax Court. The Court found that after Mr. Karim separated from his spouse in 2013 the daughter lived with her mother and visited her father occasionally, sometimes doing her homework at his apartment. The Court found that such visits were not sufficient to entitle him to the Canada Child Tax Benefit and the other credits at issue. The appeal was dismissed. There was no order as to costs since this was an informal procedure appeal.
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