Federal Appeal


Tax

Income tax

Tax credits

Parliament intended that “near equal” be interpreted as essentially or almost equal

Taxpayer claimed one-half of Canada Child Tax Benefit (CCTB) and Goods and Services Tax /Harmonized Sales Tax (GST/HST) Credit in respect of his child on basis that he had custody of child for 40 per cent of time. Minister of National Revenue determined that taxpayer was not shared-custody parent and denied benefits for four taxation years. Tax Court judge dismissed taxpayer’s appeal on ground that he was not eligible individual under s. 122.6 of Income Tax Act. Judge found that taxpayer resided with son less than 40 per cent of time and held that even 60/40 split would not qualify taxpayer as shared-custody parent. Taxpayer appealed. Appeal dismissed. Meaning of “shared-custody parent” for purposes of Act was to be determined without reference to Federal Child Support Guidelines. Based on text, context and purpose, Parliament intended that “near equal” be interpreted as essentially or almost equal. Each parent had to reside 50 per cent or almost 50 per cent of time with child to reside with child on equal or near equal basis. Parliament did not intend for time with child to be measured too precisely. Percentages should be rounded to nearest whole number that was multiple of ten. Any percentage of time that could not be rounded off to 50 per cent would not qualify as near equal. Even if taxpayer resided with child 41 per cent of time, he did not satisfy requirement of residing on equal or near equal basis with child.

Lavrinenko v. Canada (2019), 2019 CarswellNat 855, 2019 FCA 51, Wyman W. Webb J.A., Donald J. Rennie J.A., and J.B. Laskin J.A. (F.C.A.); affirmed (2017), 2017 CarswellNat 6682, 2017 CarswellNat 6750, 2017 TCC 230, 2017 CCI 230, B. Paris J. (T.C.C. [Informal Procedure]).

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