https://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/349175/index.do
Lavallee v. The Queen (October 31, 2018 – 2018 TCC 213, Russell J.).
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.
Decision: For Justice Russell the matter boiled down to math:
[12] These figures of 58% and 42% for temporal elements of custody by mother and father respectively, translate arithmetically to the conclusion that the children were in the appellant Ms. Lavallee’s custody 38% more time than they were in the custody of their father. The Minister’s assumed figures of 57.29% vs. 42.71% arithmetically reduce to the conclusion that Ms. Lavallee had actual custody of the children 34% more time than the father’s actual custody time. The figure of 38% is well more than one-third (i.e., 33.3%) additional to Mr. Marji’s total custodial time. Also the figure of 34% exceeds the same one-third differential.
[13] As stated, the contest in this matter is whether Ms. Lavallee’s actual custody of the children is “equal or near equal” to that of Mr. Marji. If so then she is a shared-custody parent and her appeal fails. The caselaw shows that this typically is measured quantitatively (which also is the way the Minister has viewed this). And, I have already found that qualitatively there is no significant difference respecting custodial care as between the two parents.
[14] I have taken particular note of the informal procedure decision, Morrissey v. R., 2016 TCC 178, rendered by my colleague Sommerfeldt, J. regarding application of the statutory term “equal or near equal” in this same context. In this case I think it is helpful to discuss the differential in terms as I have here – i.e., what percentage of time did one parent commit relative to the other in providing custodial care.
[15] Viewed temporally (quantitatively), I cannot conclude that when one parent provides custody for greater than one-third of time more than the other, the more than one-third lengthier custody period nevertheless is “equal or near equal” to the shorter custody period. I suggest that in light of common language usage, the phrase “equal or near equal” normally would not apply in respect of any comparison yielding more than a 25% differential - let alone the differentials of 38% and 34% herein as discussed.
He found that the 34% (or 38%, as the case may be) overage failed to meet the “near equal” test. Accordingly, he allowed Ms. Lavalee’s appeal, without costs.
Comment: This test may be a bit too rigid to pass muster in the Court of Appeal. It is well to bear in mind that out of 100% Ms. Lavalee essentially spent 7.25% more time with the children than her former spouse (since additional time spent by her with the children mathematically reduced the former spouse’s time by an equal amount). Each 1% of additional time results in a roughly 4% differential under the Court’s math. That seems somewhat counterintuitive.