Tax Court of Canada


Tax

Income tax

Tax credits

Child not qualified dependent when not residing with taxpayer

Taxpayer and common law partner had child, and shortly after taxpayer was diagnosed with multiple sclerosis. Parties separated. Commencing later in June 2013, child had 40 per cent of time with taxpayer and with mother 60 per cent. Minister made four redeterminations, denying taxpayer Child Tax Benefit (CCTB) and GST credit. Minister confirmed redetermination over taxpayer’s objection and taxpayer appealed. Appeal allowed in part. For earlier of two periods (July 2012 to June 2013) taxpayer was “shared-custody parent” and hence “eligible individual”. Within that period taxpayer was not cohabiting with child’s mother, did reside with child on an equal or near equal basis relative to mother and did primarily fulfil responsibility for care and upbringing of child when residing with child Monday to Wednesday and every second weekend. For subsequent period July 2013 to June 2014 when taxpayer moved to parents’ Thornhill home, and weekly schedule then shifted to only from Friday late afternoon to Sunday early evening, taxpayer no longer lived with child on equal or near equal basis. Taxpayer entitled to CCTB, but only from July 2012 to June 2013. Minister denied GST credit on assumption that child did not reside with taxpayer during relevant period, thus child was not a “qualified dependent” of taxpayer within meaning of s. 122.5(1) of Income Tax Act. As taxpayer was a s. 122.6 “eligible individual” by reason of being “shared-custody parent” taxpayer was entitled to GST/HSTC for period January 2013 to April 2013. Taxpayer not entitled to CCTB for July 2013 to June 2014, nor GST credit from July 2013 to April 2014.

Furlan v. The Queen (2018), 2018 CarswellNat 136, 2018 CarswellNat 595, 2018 TCC 25, 2018 CCI 25, B. Russell J. (T.C.C. [Informal Procedure]).

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