Tax Court of Canada


Income tax

Tax credits

When shared parenting arrangement ceased, taxpayer continued to be primary caregiver

Taxpayer and former spouse had three children and separated. Parties’ agreed to shared parenting arrangement but they also agreed that taxpayer would be primary caregiver. Taxpayer home schooled children for one taxation year, and taxpayer and spouse parties’ shared children on three day off and three day on arrangement. Taxpayer obtained ex parte order that spouse would have supervised visits only with children after incident occurred, and spouse had little to no contact with children for while until children were given into his care for first three weekends of each month. Minister redetermined taxpayer’s eligibility to both Canada Child Tax Benefit (CCTB) and Goods and Services Tax Credit (GSTC) for four base taxation years and claimed overpayment was made to taxpayer. Taxpayer appealed. Appeal allowed in part. It was determined that shared custody parent arrangement existed for brief period only during one base taxation year. For rest of taxation years, although children resided with each parent on equal or near-equal basis until certain point, facts supported conclusion that taxpayer was parent who primarily fulfilled responsibility for their care and upbringing. Evidence supported that taxpayer was parent who saw to daily needs and requirements of children, such as dropping children off and picking them up from school and paying for their activities. When shared parenting arrangement ceased due to ex parte order, taxpayer continued to be primary caregiver both in respect to time that children resided with her and in respect to applicable prescribed factors. This conclusion was supported by existing court orders, which recognized that taxpayer would continue as primary caregiver of children. Taxpayer’s appeal for three of four base taxation years was allowed, but appeal for fourth base taxation year was dismissed on consent.

Frobb v. The Queen (2018), 2018 CarswellNat 3419, 2018 TCC 121, Diane Campbell J. (T.C.C. [Informal Procedure]).

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