http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/179872/index.do
Rubinov-Liberman v. The Queen (August 29, 2016 – 2016 TCC 188, Smith J.).
Précis: The issue was whether the taxpayer was a primary custody parent of her two children during the periods in question or whether she was a shared-custody parent with her former spouse. The Court held that she was a shared-custody parent of both children commencing in March of 2014 but prior to March of 2014 she was not a shared-custody parent of her son. The Minister was directed to revise her decision accordingly. There was no order as to costs since this was an informal procedure appeal.
Decision: At issue was the period during which the taxpayer was a shared-custody parent:
[1] The issue in this appeal is whether the Appellant was entitled to the Canada Child Tax Credit (“CCTB”) and Goods and Services Tax Credit (“GSTC”) during the time periods in question on the basis that she was the primary care giver or whether, as a shared‑custody parent, she was only entitled to 50% of those benefits.
[2] The Minister of National Revenue (the “Minister”) has taken the position that the Appellant has been a shared‑custody parent of her son S since January 2013 and of her daughter R since March 2014 and that she was only entitled to 50% of the benefits received after those dates.
The Court concluded on the facts that the taxpayer became a shared-custody parent in March of 2014:
[45] Having heard the evidence of both parties and having concluded that both of them fulfilled the responsibility for the care and upbringing of the children when they reside with them, the remaining issue is whether the children resided with each parent on “an equal or near equal basis”.
[46] As indicated above, the parties did not submit a detailed chart, agenda or schedule to assist the Court in making any kind of a quantitative analysis although in cross‑examination, the Appellant was asked whether she agreed that the father had access to both children 7 out of every 14 days. She did not agree.
[47] The meaning of “equal or near equal basis” and the case law that deal with this issue were reviewed in detail in the recent case of Morrissey v. The Queen (2016 TCC 178) where Sommerfeldt J. concluded (at paragraph 64) that the acceptable range is anywhere from 55/45 to 60/40 in percentage terms.
[48] Prior to March 1, 2014, I find that the conflict between the parties was such that the Appellant assumed more than her share of the responsibility for picking‑up the children at the daycare and that, for weekdays, the father’s access was really only for an over‑night period and not a full 24‑hour day.
[49] On balance, I find that the children were in the care of the Appellant for time periods exceeding 60% up to March 2014, but that both parties shared the parenting responsibilities on an equal basis or within an acceptable range thereafter.
The Minister was directed to revise her decision accordingly. There was no order as to costs since this was an informal procedure appeal.