https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/366006/index.do
Lavrinenko v. The Queen (March 27, 2019 – 2019 FCA 51, Webb (author), Rennie, Laskin JJ.A.).
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.
Decision: The salient provisions in the decision are found at paragraphs 41 and 42 of the reasons of Webb J.A.:
[41] Parliament chose to not fix the range that would qualify as “near equal”. However, in my view, any percentage of time that cannot be rounded off to 50% would not qualify as near equal. In deciding how to round off an amount of time, it is important to consider the accuracy of the amounts used to determine the percentage of time that a child resides with each parent.
[42] As noted above, 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. As a result, any rounding of percentages should not be restricted to rounding to the nearest percentage point but rather to the nearest whole number that is a multiple of 10 and another whole number. For example, 48% would be rounded to 50% and 44% would be rounded to 40%. This would allow some flexibility for the imprecise data that may be available and still reflect the intention of Parliament that the child reside on an equal or near equal basis with each parent.
Thus Mr. Lavrinenko’a appeal was dismissed. Although the Crown sought costs the Court of Appeal declined to award any.
Comment: While this decision provides a helpful “red line” for future decisions presumably it still leaves some “wiggle room” for exceptional circumstances such as where a child is bedridden at the home of one parent on account of unexpected serious illness and, as a consequence, falls beneath the 45% threshold.