https://decisia.lexum.com/tcc-cci/decisions/en/item/312184/index.do
Frobb v. The Queen (June 27, 2018 – 2018 TCC 121, Campbell J.).
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.
Decision: This was essentially a question of balancing the responsibilities of the two parents. On balance the Court found that Ms. Frobb was the primary caregiver:
[29] During the periods before me, the Appellant and her former spouse, for the months in the 2011 base taxation year that they were separated, resided with the children on an equal basis of one week on, one week off, in July and August of 2012 and three days on, three days off in March, April, May and June of 2013; during the 2012 base taxation year, each resided with the children on an equal basis of three days on, three days off, in July, August, September and October of 2013. Commencing in November, 2013, Mr. Miller was limited by court order to supervised visits only and in December, 2013, the court ordered that Mr. Miller have parenting time during the first three weekends of each month with summer months of July and August being shared equally. Until November, 2013 the parents each resided with the children on an equal basis but after this the evidence supports that the children were residing with the Appellant the majority of each month. During the 2013 base taxation year, the court ordered schedule continued between July, 2014 to October, 2014. In November of 2014, the Appellant allowed the children to reside with Mr. Miller on Wednesday night of each week, in addition to the court ordered first three weekends of each month. This arrangement continued until June, 2015.
[30] Although Respondent counsel submitted that an accounting of the hours that each parent had the children with them supported the definition of shared custody parent, I do not agree. While the children were with Mr. Miller on three weekends and on Wednesday evening when they were not in school, the Appellant had the care and supervision during the majority of each month. I do not believe the Appellant abdicates her responsibilities as caregiver during the time they were in her care simply because they are in school. She was the primary contact person and volunteered at the school lunch program, as well as various extracurricular school activities. Based on these facts, in respect to the time that the children resided with each parent, it was on an equal basis for the periods in which they were separated during the 2011 base taxation year and up until and including the month of October 2013 in the 2012 base taxation year. However, commencing in November, 2013 until June, 2015, being the balance of the 2012 base taxation year and the whole of the 2013 base taxation year, the children resided with the Appellant a greater amount of the time than they did with Mr. Miller.
Thus Ms. Frobb’s appeal was allowed. There was no order as to costs since this was an informal procedure appeal.