https://decisia.lexum.com/tcc-cci/decisions/en/item/301407/index.do
Lavrinenko v. The Queen (November 20, 2017 – 2017 TCC 230, Paris J.).
Précis: Mr. Lavrinenko had shared custody of his son S along with his former spouse. CRA denied his claim for the Canada Child Tax Benefit and the Goods and Services Tax Credit /Harmonized Sales Tax Credit (the “Credits”) on the basis that he did not have custody of S on an equal or nearly equal basis with his former spouse. He appealed to the Tax Court. Justice Paris dismissed his appeal on the basis that his claim of 40% (or slightly less) custody of S did not meet the statutory requirements for the Credits since he and his former spouse did not share custody of S on an equal or nearly equal basis. There was no order as to costs as this was an informal procedure appeal.
Decision: The nub of Justice Paris’ decision boiled down to his conclusion that 40% was not “nearly equal”:
[19] I agree with Woods J. 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. A child who spends 40% of his or her time with one parent spends only two-thirds as much time with that parent as the other. I do not accept that there would be near equality in such a situation. 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”.
[20] In this case, the Appellant acknowledged that he had missed some access during the relevant period but said that his access “approached 40%” of the time. His ex-spouse said that his access was less than that. Unfortunately, neither kept any complete record of the time S spent with them. On the basis of this evidence, I conclude that the Appellant resided with S somewhat less than 40% of the time during the period in issue, although I am unable to determine how much below 40%. It is not necessary for me to make that determination, however, since in my view even a 60%/40% split would not qualify the Appellant as a shared‑custody parent.
Accordingly the appeal was dismissed. There was no order as to costs since this was an informal procedure appeal.
Comment: It should be noted that this decision is at odds with the decision of Justice Boyle in Zara, blogged earlier on this site. In my view the Zara decision is preferable insofar as it interprets “nearly equal” in a much less rigid fashion.