Tax Court of Canada


Income tax
Taxpayer’s appeal regarding redetermination of returns was granted

Taxpayer mother had primary custody of son and daughter after separation from children’s father. Pursuant to temporary order in October 2012, father obtained access to both children every other weekend, and two overnight visits per week for son and one overnight visit per week for daughter. Pursuant to second temporary order in February 2014, father obtained expanded access to daughter. Final order in September 2014 provided that parties would have joint custody of children, that father would continue to have access largely according to February 2014 order, and that parties had consented to roughly equal sharing of children’s care. Minister of National Revenue concluded that taxpayer and father met definition of shared-custody parents of son since January 2013 and of daughter since March 2014, and redetermined taxpayer’s returns for 2011 through 2013 on basis that she was only entitled to 50 per cent of Canada Child Tax Benefit and Goods and Services Tax Credit after those dates. Taxpayer appealed. Appeal allowed. Taxpayer and father had been shared-custody parents of both children since March 2014. Both parents fulfilled responsibility for upbringing of children when they resided with them. Prior to March 2014, conflict between taxpayer and father was such that taxpayer assumed more than her share of responsibility for picking-up children at daycare and that, for weekdays, father’s access was only for overnight period and not full 24-hour day. Children were in care of taxpayer for time periods exceeding 60 per cent up to March 2014, but after that date, taxpayer and father shared parenting responsibilities on equal basis.

Rubinov-Liberman v. R. (Aug. 29, 2016, T.C.C. [Informal Procedure], Guy Smith J., 2015-3461(IT)I) 269 A.C.W.S. (3d) 797.

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