Section 122.6

Lyons J found that there was ample evidence to support that the taxpayer, who was a US and Canadian citizen at birth, was not resident in Canada and therefore not eligible for Canada child tax benefits. Among other things, he was married in the US, lived there with his wife and five children, and could offer no credible support for his claim that he later intended to return to Canada.

The taxpayer claimed the Canada Child Tax Benefit (“CCTB”) for his three children for the 2009, 2010, 2011 and 2012 base taxation years. Pursuant to a Consent Judgment, the taxpayer and his wife had come to an agreement for joint custody in 2001 with the taxpayer having the care of the children for six days in every two week period. However, over the years in question, the children elected one-by-one to live full-time with their mother.

V.A. Miller J dismissed the appeal on the basis of s. 122.6 of the Act as she found that the taxpayer did not reside with the qualified dependants on an equal or near equal basis for the periods in question and so therefore was not a shared-custody parent during those times.

The taxpayer had a child in 2002, was deported back to Tunisia in 2004, and returned to Canada in 2010. Jorré found that the taxpayer was ineligible for Canada child tax benefits and GST/HST tax credits for the period he stayed in Tunisia, as he did not normally reside in Canada in that period.

The taxpayer and his wife applied from India for immigration visas in 2004, which were granted in 2010. The taxpayer's wife and mother died shortly before his immigration, so he decided to keep his son in the Indian boarding school he attended, in order to avoid disrupting his son's education while establishing himself in Canada.

Based on Charafeddine, Hogan J found that the son resided with the taxpayer, so that the taxpayer eligible for Canada Child Tax Benefits. He stated (at para. 22):

[T]he appellant and [his son] would have been living together during the period at issue were it not for the unforeseen death of the Appellant's wife... . I do not believe that the legislative intent behind the residency requirement was to exclude otherwise eligible families who have had to adapt to unfortunate circumstances.

The taxpayer's daughter and grandchildren lived in the taxpayer's home. The daughter was a welfare recipient and, although she contributed the portion of that assistance designated by Ontario works as being for rent to the taxpayer as rent, the taxpayer was the primary financial contributor. Nevertheless, Pizzitelli J found that the Minister was correct in finding that the taxpayer's daughter was the primary caregiver of the children, as she supervised their daily activities and educational, hygienic, recreational and medical needs. It was infeasible for the taxpayer to provide a similar degree of care, given her eight hour shifts as a personal caregiver three or four times per week. Therefore, the Minister's retroactive denial of the taxpayer's Canada child tax benefits and national child benefit supplements was correct.

VA Miller J found that the taxpayer's claim that his sons resided primarily with him rather than on a near-equal basis with his wife as well founded. She based this conclusion partly on the taxpayer's and his sons' testimony, and a court order retroactive to the beginning of the period in question. An interim court order giving custody to the wife in that period had had no weight, as it was obtained without notice to the taxpayer and did not reflect reality.

Favreau J found that the taxpayer was not the parent who primarily fulfils the responsibility for the care and upbringing of his son, as the fact that his ex-wife had custody of the son for more days (four of every seven) and that he had to pay child support "clearly tend[ed] to demonstrate" that she was the one primarily responsible for the son's care and upbringing.

Woods J found that the taxpayer was not an eligible individual, given the inclusion in Regulation 6302(h) of court orders as a factor to consider. The taxpayer's separation from his spouse was subject to an interim court order that provided that he had custody of their daughter on Wednesday and Friday afternoons, and on every other weekend - significantly less time than the mother had.

Although the taxpayer was also involved in his daughter's school life and was more frequently able to pick her up on an emergency basis, this was not enough to establish that the mother did not assume primary responsibility for the daughter. Woods J noted that both were dedicated parents, and that this should not be a factor in deciding who is entitled to benefits (para. 25).

The taxpayer's former spouse was the primary caregiver for the taxpayer's daughter and received the resulting Canada Child Tax Benefits. Angers J found that the taxpayer became the primary caregiver when the daughter moved in with him following a falling-out with her mother. Although the mother and the mother's parents continued to see the daughter regularly, the father's contributions (including daily drives to a school in the mother's neighborhood) established that he was the primary contributor.

The taxpayer had neglected to file a return for one of the years in question. Angers J ordered that his s. 122.6 credits be determined once he filed the return.

Woods J found that, although the taxpayer and her former spouse had intended to split custody of their children on a 60/40 basis, the taxpayer in fact had custody closer to 75% of the time. It was therefore clear that she was not a shared-custody parent and was thus entitled to full Canada child tax benefits.

The taxpayer, who was separated from her husband, claimed Canada child tax benefits in respect of their son. Webb J. found that, in the absence of Minister assumptions of facts regarding the conditions set out in paras. (b) and (f) of the definition of "eligible individual," the taxpayer could benefit from the female parent presumption in para. (f) as long as she could show that her son resided with her at any point during the period in issue (para. 9). Webb J. stated (at para. 14):

It seems to me that whether her son was "in her care for the purposes of the CCTB" is a conclusion of mixed fact and law. ... Section 6302 of the Regulations sets out the various factors that are "to be considered in determining what constitutes care and upbringing of a qualified dependant." The Minister should have assumed the factual components of the test for "care and upbringing" not the conclusion that the child was "not ... in her care" for the purposes of the CCTB or that the child was in the "care" of someone else.

Webb J. only denied the CCTB credits for the times when, according to the taxpayer's own evidence, her son clearly did not reside with her.

The taxpayer was able to prove that she was the sole primary caregiver for one of her children (and therefore the only "eligible individual" for a Canada Child Tax Benefit) but not for the other. The children spent equal time living with the taxpayer and her separated husband on a week-on/week-off basis, which led to a presumption that they shared equally in providing care. The taxpayer's evidence was enough to reverse this presumption for her son with autism, but not for her daughter. Although both children received treatment for behavioural issues, which the father refused to pay for or participate in, the son's treatment was significant and the daughter's less so. On an application of the evidence to the list of factors in Regulation 6302, Rip C.J. found that the taxpayer's "efforts and support, both emotional and financial, to the son eclipsed that of the father."

The Canadian taxpayer moved to teach English in China, where he met and married his wife and had two children. Boyle J. upheld the Minister's position that the taxpayer was not a Canadian resident for the period in issue and that the taxpayer's claimed Canada Child Tax Benefits should therefore be denied.

The Minister had also raised the female-presumptive rule in para. (f) of the s. 122.6 definition of "eligible dependant" to argue that the taxpayer was not the primary caregiver. The Minister initially took the position that the taxpayer's wife, being a Chinese citizen and therefore not an eligible individual for the purpose of the CCTB, did not have standing to waive the para. (f) presumption. The Minister subsequently abandoned this position. Boyle J. agreed obiter dicta with the Minister that the position had been incorrect (para. 3).

The taxpayer cared for a number of refugee children under PRAIDA, a regional assistance program, and the taxpayer applied for the Canada child tax benefits. Favreau J. found that the taxpayer was not an "eligible individual" under s. 122.6 because the taxpayer was not the parent of the children under the extended definition of "parent" in 252(1)(b). While the taxpayer had custody of the children, the children where not wholly dependent on her given that PRAIDA provided financial assistance for housing, optometry and dentistry.

The taxpayer's children were abducted by her husband in Lebannon, and were being held there while the taxpayer tried to effect their return to Canada. At issue was whether the children "resided" in Canada and whether the taxpayer was the one who "primarily [fulfilled] the responsibility for [their] care and upbringing" as per s. 122.6.

Sheridan J. concluded that both criteria were met. Finding that the taxpayer "resided" with her children was appropriate, given that (para. 16):

The legislative objective of putting financial resources in the hands of the parent upon whom the children are dependent for their care and well being must also be respected.

She also stated that "[t]here is something fundamentally flawed with the notion that children wrongfully detained in a foreign country can be 'settled' there" (para. 8). On the same reasoning, the taxpayer was also resident in Canada for the year she spent in Lebannon trying to recover her Children.

The taxpayer was primarily responsible for the children, despite the husband's conduct precluding the taxpayer from caring for the children in any of the ways listed in s. 6302 of the Regulations except for paras. (b) and (h). Sheridan J. ruled that, in the extraordinary circumstances of the case, this was enough to make the taxpayer primarily responsible for the children.

This was an appeal from determination by the Minister that the taxpayer was not entitled to receive the Canada Child Tax Benefit and the GST/HST credits (the “Benefits”) in respect of his son “S” from December 2012 to June 2016 on the basis that the taxpayer was not a “shared‑custody parent” of S. The sole issue in dispute in this appeal is whether the Appellant and his ex-spouse resided with S on an “equal or near equal basis” during the relevant period.

Paris J dismissed the appeal, stating (at paras 17, 19, and 20):

…In Brady v. The Queen, 2012 TCC 240, Campbell J. considered that Parliament intended that the words “near equal basis” in the definition of “shared-custody parent” to mean “only a small difference between the amounts of time spent with each parent”. She went on to say that “parents whose circumstances exhibit only slight differences or close differences, will fall within this amendment” (emphasis added). In the Brady case, a split of 55%/45% in the time the child spent with each parent was found to be near equal.

I agree with Woods J. [in Van Boekel v. The Queen, 2013 TCC 132] that the phrase “equal or near equal basis” does not permit a very wide variation from equal residence. In my view, a 60%/40% split is a wide variation. … The contrary conclusion would strain the ordinary meaning of the words “equal or near equal”. Anything less than 40% would clearly not qualify as “near equal”.

I conclude that the Appellant resided with S somewhat less than 40% of the time during the period in issue… .[I]n my view even a 60%/40% split would not qualify the Appellant as a shared‑custody parent.

Parents negotiated an agreement on custody and parenting rights that was incorporated into their divorce order by the Quebec Courts, with shared custody set out to be 60:40, and with specified details of a three-week rotating schcdule. CRA decided that that they were shared custody parents for July and August but that they were not shared custody parents during the school year and that the children resided principally with their mother.

Boyle J stated (at paras 2 and 3):

…[P]aragraph (b) of the definition of shared custody parent…requires that the children reside equally or near equally with both parents. The decisions of this Court applying the near equal requirement have recognized near equality if the time residing with each parent is within the 60:40 range, and has rejected near equality at 65:35.

Boyle J found (at para 10):

CRA incorrectly completed a notional four-week calendar which, given it was a three-week repeating cycle as described, wrongly favoured the mother in the fourth week. … CRA’s analysis arrived at about 65:35.

He also noted (at para. 16):

Since they are co-parenting with shared parental responsibilities and the school and daycare are aware of the precise terms of their divorce order, it might be more appropriate to consider seven hours of each school day as 50:50 [rather than 100% to the mother]. I am not deciding that point.

Boyle J allowed the appeal, stating (at paras 17, 20):

When Parliament tells me to decide if it is near equal, I am not certain one need always spend hours in Court debating each hour of each day of each month.

I think what is most important is that it is clear that the mother and the father agreed as part of their divorce to share parental responsibility and to have shared custody on a 60:40 basis, full stop.

Based on Brady, Lamarre J found that a taxpayer who had custody of his children 43% of the time was caring for them on a near equal basis with his wife.

The taxpayer's separation from his spouse was subject to an interim court order that provided that he had custody of their daughter on Wednesday and Friday afternoons, and on every other weekend - which, on its face, fell significantly short of residing with his daughter on an equal or near equal basis with her mother. Although the taxpayer was also involved in his daughter's school life and was more frequently able to pick her up on an emergency basis, this extra involvement did not bear on residency.

Campbell J. found that a 55-45 division of child custody between two taxpayers, by time, was "clearly within" what Parliament meant to capture with the words "near equal" (paras. 31-32), and (in obiter dicta) that a 75-25 split would not be (para. 30). The taxpayer's 55% custody of her children in a typical week (with the father taking the balance) therefore made her a shared-custody parent, and she was ordered to repay an overpayment of Canada Child Tax Benefits.