Levin v. The Queen (May 11, 2015 – 2015 TCC 117, V. Miller J.).
Précis: Mr. Levin and his former spouse had three children. In 2001 they agreed to joint custody with Mr. Levin having the children 6 days in every 14. This appeal concerned his claim to the Canada Child Tax Benefit (the “Benefit”) for the 2009, 2010 and 2011 base years (he dropped his claim in respect of the 2012 base year). The Court accepted the evidence of the former spouse that all three children were living with her during the periods at issue, having opted to live with their mother as they got older and Mr. Levin began living with his fiancée . As a result the appeal was dismissed.
Decision: The facts surrounding the shared custody arrangement were not complex:
[5] The Appellant and his former spouse have three children:
JML who was born November 15, 1993;
LAL who was born April 20, 1995; and,
LFL who was born January 24, 1997.
[6] Pursuant to a Consent Judgment dated December 6, 2001, the Appellant and his former spouse agreed to have joint custody of the three children. They also agreed that for each two week period, the children would be with the Appellant for 6 days and with his former spouse for 8 days.
[7] According to the Appellant, he always received 50% of the CCTB. Initially, he and his former spouse each received it for six months of each year. After July 2011, he and his former spouse each received 50% of the CCTB each month.
The periods at issue were as follows:
[10] Therefore, I must decide whether the Appellant was a shared-custody parent during the following periods (I will refer to these periods as the periods in issue):
JML – November 2009 to June 2010; - (JML became 18 in November 2011)
LAL – March 2012 to December 2012;
LFL – March 2012 to June 2012, and February 2013.
The Court accepted the evidence of the former spouse that during these periods all three children were living full time with her and that the shared custody for the purposes of the Benefit had ended:
[15] I have accepted the former spouse’s evidence and have concluded that JML did not reside with the Appellant during the period November 2009 to June 2010. JML may have stayed at the Appellant’s home for a few days in November 2009 but he did not reside with the Appellant. The word “reside” usually means “to live in the same house as”: Burton v. R, [2000] 1 CTC 2727 (TCC). In the context of section 122.6, the word “resides” has been interpreted to connote “a settled and usual abode”: R (S) v R, 2003 CarswellNat 2710 (TCC). During the period November 2009 to June 2010, JML resided with the former spouse.
[16] It is my view that neither LAL nor LFL continued the 6/8 rotation cycle and they resided with the former spouse full time for the periods at issue. My view is based on the following evidence.
[17] The former spouse testified that LAL maintained the 6/8 rotation cycle until she was 16 which was March 2012. At that time, she did not want to continue going back and forth between two homes and she decided to reside full time with the former spouse. Apparently, LFL did not want to be the only child staying with the Appellant and in March 2012, she as well started to reside full time with the former spouse.
[18] According to the former spouse, LAL’s decision to reside with her full time was also based on the fact that the Appellant had moved into his fiancée’s home. The Appellant’s stated that he moved into his fiancée’s home in February 2012. It is my view that the Appellant’s evidence confirmed the former spouse’s evidence with respect to the date that LAL and LFL moved in with her.
As a result Mr. Levin’s appeal was dismissed.
TAGS: Canada Child Tax Benefit, Income Tax Act, Tax Litigation