Percentages found by Tax Court judge did not fall within meaning of words “near equal”

Taxpayer separated from father of her child. Court orders issued, with consent order providing for joint custody and shared parenting of child. From July 1, 2013 to June 30, 2015, taxpayer received entire Canada Child Tax Benefit (CCTB) for child. At some point in time, father applied to receive half of amount. Minister issued redeterminations under Income Tax Act for 2012 and 2013 taxation years, on basis that taxpayer was shared-custody parent and only entitled to 50 percent of CCTB. Taxpayer filed notice of objection in regard to redeterminations and Minister confirmed redeterminations that taxpayer was shared-custody parent. Appeal by taxpayer was dismissed. Tax Court of Canada judge found that taxpayer had resided with child between 57.14 percent and 59.38 percent of time, that this was sufficiently close to splits in other cases and that as result he was bound to conclude that taxpayer and father resided with child on near equal basis. Taxpayer appealed. Appeal allowed. There could be no doubt that percentages found by Tax Court judge did not fall within meaning of words “near equal”. On Tax Court judge’s findings of fact regarding time spent by taxpayer and father with child when child resided with them, taxpayer and father were not shared-custody parents. Taxpayer was not shared-custody parent as defined in s. 122.6 of Act. Decision of Tax Court of Canada was ordered set aside and taxpayer’s appeal from Minister’s reassessments for 2012 and 2013 taxation years were allowed with costs.

Morrissey v. Canada (2019), 2019 CarswellNat 856, 2019 FCA 56, M. Nadon J.A., D.G. Near J.A., and Mary J.L. Gleason J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 10621, 2016 CarswellNat 3634, 2016 TCC 178, 2016 CCI 178, Don R. Sommerfeldt J. (T.C.C. [Informal Procedure]).