Citation: 2013 TCC 132
Date: 20130430
Docket: 2012-2089(IT)I
BETWEEN:
JOANNE VAN BOEKEL,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Woods J.
[1]
The appellant, Joanne Van Boekel,
appeals a determination regarding the child tax benefit under section 122.61 of
the Income Tax Act. The issue is whether the appellant’s entitlement is
reduced by 50 percent on the basis that she is a “shared-custody parent,” as
that term is defined. The relevant period is the 2010 base taxation year.
[2]
In the 2010 federal budget, a measure was introduced to
require the child tax benefit to be shared between separated spouses who reside
with their children on an equal or near equal basis. The provision first came
into force for the period at issue in this appeal. Prior to this, the entire child
tax benefit was provided to the parent who was the primary caregiver, which in
this case was the appellant.
[3]
Section 122.6 of the Act
sets out the meaning of “shared-custody parent” for these purposes. It is
reproduced below.
“shared-custody parent” in respect of a qualified
dependent at a particular time means, where the presumption referred to in
paragraph (f) of
the definition “eligible individual” does not apply in respect of
the qualified dependant, an individual who is one of the two parents of the
qualified dependant who
(a) are
not at that time cohabitating spouses or common-law partners of each other,
(b) reside
with the qualified dependant on an equal or near equal basis, and
(c) primarily
fulfil the responsibility for the care and upbringing of the qualified
dependant when residing with the qualified dependant, as determined in
consideration of prescribed factors.
Preliminary
Issue
[4]
The appeal relates to child tax
benefits under both federal and Ontario legislation. Since this Court has no
jurisdiction with respect to Ontario legislation, this part of the appeal will
be quashed.
Factual background
[5]
Testimony on behalf of the
appellant was provided by the appellant herself and her eldest daughter.
Testimony on behalf of the respondent was provided by Eric Van Boekel, who is
the children’s father and former spouse of the appellant.
[6]
The appellant and her former
spouse have lived in separate residences since June 8, 2009. They divorced in
October 2010. It is evident from the evidence that the relationship between the
former spouses was, and continues to be, very acrimonious.
[7]
The appellant and her former
spouse have five children, whose ages currently range from 8 to 16.
[8]
When the appellant first moved out of the matrimonial
home in 2009, she and her former spouse agreed to a residence arrangement for
the children that involved the children spending a substantial amount of time
with each parent. The parents prepared a chart (“Schedule”) that was based on a
template developed for them by a consultant. The Schedule sets out a two-week
rotation, with each day broken into four segments – morning (8-12), afternoon
(12-4), evening (4‑8) and night (8-8). One of the principles behind the
agreement was to minimize the time that the children would have to travel
between residences.
[9]
The Schedule has remained in place
since inception. A court order dated September 24, 2010 provided that the
parents have joint custody and “share the residential care of the children upon
terms as they may, from time to time, agree.”
[10]
Although the Schedule is still
being followed, neither parent produced the original and they had a slight
disagreement over the afternoon segments. The discrepancy is minor. I would
also mention that the eldest child no longer follows the Schedule as she chose
to live solely with her mother beginning in 2012.
[11]
The Schedule as submitted by the
appellant is reproduced below. The references to M and F refer to mother and
father.
|
Week 1
|
Monday
|
Tuesday
|
Wednesday
|
Thursday
|
Friday
|
Saturday
|
Sunday
|
|
Morning
|
M
|
F
|
F
|
M
|
M
|
M
|
M
|
|
Afternoon
|
M
|
F
|
M
|
M
|
M
|
M
|
M
|
|
Evening
|
M
|
F
|
M
|
M
|
M
|
M
|
M
|
|
Night
|
F
|
F
|
M
|
M
|
M
|
M
|
M
|
|
Week 2
|
Monday
|
Tuesday
|
Wednesday
|
Thursday
|
Friday
|
Saturday
|
Sunday
|
|
Morning
|
M
|
F
|
M
|
M
|
F
|
F
|
F
|
|
Afternoon
|
M
|
M
|
M
|
M
|
F
|
F
|
F
|
|
Evening
|
M
|
M
|
M
|
F
|
F
|
F
|
F
|
|
Night
|
F
|
M
|
M
|
F
|
F
|
F
|
M
|
[12]
As part of the
residence agreement, the parents agreed that if one parent is unavailable for a period of time, that parent is
responsible for obtaining a replacement caregiver, but the other parent has the
right to care for the children in these circumstances in priority to a third
party caregiver. This was referred to as a right of first refusal.
Positions of parties
[13]
The respondent submits that the
Schedule reflects that the children spend approximately 60 percent of the time
with their mother and 40 percent with their father. Counsel submits that this
is “near equal.”
[14]
The respondent refers in support to Brady v The
Queen, 2012 TCC 240, which appears to be the first reported decision
dealing with the term “near equal.” It is useful to reproduce part of Justice
Campbell’s reasons in that case.
[27] If Parliament’s goal for residency is that it is “equal”,
then if one applies a strict interpretation, the words “near equal” should be
as close to equal as possible, or only slightly less. However, I do not believe
that Parliament intended that the line be drawn so strictly at only a 50/50
split, or some very slight variation akin to that. To use such an interpretation
would likely frustrate the purpose of the amendment. Rather, the purpose as I
view it is to ensure that while disproportionate differences between parents
will not be caught by the provisions, parents whose circumstances exhibit only
slight differences or close differences, will fall within this amendment.
[…]
[31] The evidence was that the appellant spent on average 91
hours per week residing with the three children, while the father spent 77
hours on average. Out of a total 168 hours per week, the appellant spent a
total of 54.17 percent with the children. The difference in the number of hours
spent residing with the children is 14 hours. Expressing the difference in the
hours each parent spends with the children as a percentage may not be
particularly helpful here. If the appellant spends 60 percent of the time with
the children, she would spend almost 101 hours with them, while the father
would spend 67 hours. This difference of 34 hours translates to a day and 10
hours and that would be per week. A difference of 64 hours would mean that the
appellant spent 96 hours with the children, which would be a 57.14 percent
difference. The question is whether a 14-hour difference based on the 55/45
percentage split, which was the average, should be deemed to be “near equal”.
In reality, this difference translates to half a day plus two hours.
[32] It is my conclusion that this falls clearly within the term
near equal as contemplated by the amendment. The differences between the hours
that each parent spends residing with the children, therefore, are “near equal”
as contemplated by this provision.
[15]
The appellant submits
that a 60/40 split is not near equal, and further that the split is closer to
75/25 when the right of first refusal is taken into account.
Discussion
[16]
The question in this
appeal is whether the appellant was a “shared-custody parent” in 2010. This
term contains both residence and caregiving elements.
[17]
The caregiving element is in
clause (c), which reads:
(c) primarily fulfil the
responsibility for the care and upbringing of the qualified dependant when
residing with the qualified dependant, as determined in consideration of
prescribed factors.
[18]
It is important to note
that this element does not require an evaluation of the caregiving roles in general,
nor an investigation into the quality of care. The test is quite narrow: Does each
parent primarily fulfil the caregiving responsibility during the children’s
residence with that parent? (See C.P.B. v The Queen, 2013 TCC 118.)
[19]
The appellant submits that
she provided more of the caregiving role than her former spouse. The evidence
supports this submission if the caregiving roles are compared generally.
However, I am satisfied that each parent fulfilled the primary caregiving
responsibility during the children’s residence with that parent. Accordingly,
the caregiving element in the definition of “shared-custody parent” is met.
[20]
I turn now to the residence
requirement. The question is whether the children resided with each parent on a
“near equal” basis.
[21]
As for the general principles to be applied, in Brady
Justice Campbell concluded that the term “near equal” was not restricted to
only to a very slight variation from 50/50. In my view, the legislation also
does not encompass a very wide variation from equal residence. Otherwise,
different language would have been used in the legislation.
[22]
Further, although the “near equal” element requires a comparison
of time spent with each parent, often the circumstances will not lend
themselves to a formulaic approach. In this particular case, it is important to
look at all the relevant circumstances and not to simply apply an arithmetic
approach, such as the 60/40 split suggested by the respondent.
[23]
When the facts are viewed as a
whole, I am satisfied that the children did not reside with the appellant and
her former spouse on a near equal basis in 2010.
[24]
In reference to the Schedule, the children are with the parents
equally only during the weekends and not during the week. For example, in the
weekday after‑school/dinner segments the children are with their mother 7
out of 10 days.
[25]
In addition, the
Schedule does not reflect the time that the children spend with their mother
pursuant to the right of first refusal when the father is unavailable. When
this is taken into account, the relative time spent is clearly not equal or
near equal.
[26]
The appellant testified that her former
spouse has many interests outside the home which often bring the right of first
refusal into play. For example, the former spouse travels extensively to
participate in a rodeo event called “cutting horses.” He is also involved in
sports and activities related to his business.
[27]
I accept the testimony of the
appellant that some or all of the children often resided with her due to the
unavailability of the former spouse and the so-called right of first refusal.
[28]
In the testimony of the former
spouse, he implied that this was not a significant factor because he took the
children when the appellant was not available. I did not find this testimony to
be detailed enough to be persuasive.
[29]
The respondent submits that the
time the children spent with their mother pursuant to the right of first
refusal does not have a quality of “residence” in the sense of “usual abode.” I
do not agree. To the extent that a segment in the Schedule is altered through
the right of first refusal, this results in a change of residence. The children
are not visiting their other home – they are home.
[30]
Before concluding, I would mention
that, in a decision of the Ontario Superior Court of Justice dealing with
support for the Van Boekel children, the judge mentioned that the children
spend relatively equal amounts of time with each parent: Van Boekel v Van
Boekel, 2010 ONSC 588, para. 7. I accept the submission of the appellant
that this was not a central issue before the judge and it was not the focus of
the evidence in that case. I have given the statement very little weight in
terms of the issue to be decided in this appeal.
[31]
I am satisfied by the evidence as
a whole that the children were with their mother much more than their father. For
this reason, I am satisfied that the appellant was not a “shared-custody
parent” for purposes of the child tax benefit.
[32]
The appeal will be allowed, and
the determination will be referred back to the Minister of National Revenue for
redetermination on the basis that the appellant was not a “shared-custody
parent” as defined in section 122.6 of the Act during the 2010 base
taxation year. The appellant is entitled to her costs, if any.
Signed at Ottawa, Ontario this 30th day of April
2013.
“J. M. Woods”
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