Wachal – Tax Court of Canada finds that non-granular pleading of the Minister failed to shift the onus to the taxpayer

The taxpayer’s eligibility for Canada child tax benefit for his son turned primarily on whether he qualified as the “eligible individual” for that child. The Crown pleaded that in the periods in question, the taxpayer “was not the parent primarily responsible for the care and upbringing of [the child],” i.e., it simply quoted from the relevant portion of the statutory definition of “eligible individual,” and did not refer to how any of the eight factors listed in Reg. 6302 for determining such primary responsibility applied, with the exception of a brief reference to a divorce judgment.

Russell J considered this pleading to be deficient, and found that, given that there was not much of a burden on the taxpayer regarding his “eligible individual” status, somewhat fluffy and poorly substantiated testimony of the taxpayer was sufficient to establish that the taxpayer so qualified for various periods in issue (other than those as to which the taxpayer had effectively conceded.)

Neal Armstrong. Summaries of Wachal v. The Queen, 2020 TCC 78 under s. 122.6 - eligible individual – (b)(ii) and s. 122.62(1).