Furlan v. R. – TCC: Shared custody parent entitled to child tax credits prior to the onset of severe disability

Furlan v. R. – TCC:  Shared custody parent entitled to child tax credits prior to the onset of severe disability

https://decisia.lexum.com/tcc-cci/decisions/en/item/305460/index.do

Furlan v. The Queen (January 25, 2018 – 2018 TCC 25, Russell J.).

Précis:  The taxpayer and his former common-law partner had one child, DF, in 2010.  In 2010 the taxpayer was diagnosed with multiple sclerosis (“MS”) and that condition deteriorated over time.  In 2012 the partners separated.  Prior to July 2013 the two parents roughly shared custody of DF.  In July of 2013 the taxpayer’s condition had deteriorated to the point that he moved in with his parents and only had custody of DF from late Friday afternoon to early Sunday evening.

CRA denied the taxpayer both the Canada Child Tax Benefit and the GST/HST Credit both before and after July of 2013.  The taxpayer’s appeal to the Tax Court was allowed for the period prior to July of 2013 on the basis that he was a shared-custody parent prior to that date.  There was no order as to costs since this was an informal procedure appeal.

Decision:   The Tax Court decision was simply a question of fact since the jurisprudence on shared-custody parents was settled:

[15]         Regarding ITR 6302(a), I find on the totality of the evidence that Michael did have supervision of the daily activities and needs of DF when Michael was residing with DF. Likewise at such times Michael, per ITR 6302(b), “maintain[ed] a secure environment” in which DF resided, including providing a complete set of clothing for him, providing him his own room and his own bed. Regarding ITR 6302(c), being “arrangement of, participation in, and transportation to, medical care at regular intervals and as required for [DF]”, there was evidence that in Kingston Michael had initiated a hearing test medical appointment for DF, attended by both Michael and Brittany.

[16]         There was little evidence relating specifically to the remaining ITR 6302 factors. However I perceive, again based on totality of the evidence (and noting the Respondent’s non-pleading of any assumptions made by the Minister specific to these factors, thus putting an onus on the Respondent to establish which if any of these factors did not apply in Michael’s favour), that in general a balance of these factors was met by Michael during the portion of each week that he resided with DF.

[17]         However, for the subsequent period of July 2013 to June 2014 - commencing when Michael moved to his parents’ Thornhill home, and the weekly schedule then shifting to Michael having DF only from Friday late afternoon to Sunday early evening - in my view Michael no longer lived with DF on an equal or near equal basis. Thus he was no longer a shared-custody parent. Nor was he DF’s primary caregiver. This weekly arrangement involved only one full day (Saturday) of DF being with Michael versus four full days (Monday, Tuesday, Wednesday, Thursday) each week during which DF was with his mother, Brittany. Michael’s mother acknowledged that Brittany held primary responsibility for DF during this period, in terms of school contact, etc., noting also that Brittany did not “share” with Michael relevant information re DF. Subsequently as of February 14, 2014 Brittany abruptly relegated Michael to a weekly share of time with DF of only a single hour in a municipal park. Again, throughout this time Michael’s MS had continued to worsen.

[18]         Thus, in this appeal Michael is entitled to the CCTB, but only for the period July 2012 to June 2013 monthly.

Thus success on the appeal was mixed.  There was no order as to costs since this was an informal procedure appeal.