Lavrinenko and Morrissey – Federal Court of Appeal finds that “near equal” means no lower than 45%

While normally the Canada child tax benefit (CCTB) and the GST/HST credits (the “Benefits”) can at most be claimed by only one parent, individuals who are a child’s “shared‑custody parent” are each entitled to ½ of the Benefits. One of the requirements in order to be a “shared‑custody parent” is that the parent reside with the child “on an equal or near equal basis.”

In Lavrinenko, Webb JA has concluded that the “near equal” concept is to be handled by rounding relative residing-with-the-child percentages to the nearest multiple of 10% - so that if, as in the case before him, this percentage was (at most) 41%, it was to be rounded down to 40% (test failed). If it were 47%, it would be rounded up to 50% (test passed).

A second FCA decision by a different panel agreed with the Webb JA approach and, in that case (Morrissey), rounded a percentage that might have been 43% down to 40% - so that, again, the Benefits were not available.

Neal Armstrong. Summary of Lavrinenko v. Canada, 2019 FCA 51 under s. 122.6 – shared-custody parent – para. (b) and summary of Morrissey v. Canada, 2019 FCA 56 under s. 122.6 – shared-custody parent – para. (b).