Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.
Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the Department.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.
Principal Issues:
whether either spouse can claim equiv-to-married amt when each spouse is notionally required to pay support to the other in respect of all children (each spouse has custody of the 3 children 50% of the time)
Position:
no equiv-to-married amount, see 118(5). Assumes the spouses live separate and apart from one another throughout the year because of the breakdown of their marriage (or either claim a ded'n under section 60 of the Act for a support amount paid to the spouse or former spouse)
Reasons:
971921
XXXXXXXXXX Sandra Short
Attention: XXXXXXXXXX
November 13, 1997
Dear Sirs:
This is in reply to your letter of July 8, 1997, concerning the equivalent-to-married amount. You have asked that we consider the example of a client who has custody of her children 50% of the time. Pursuant to the Child Support Guidelines, she is required to notionally pay child support to her spouse who has custody of the children for the other 50% of the time. Her spouse is also required to notionally pay her an amount in child support. The Child Support Guidelines provide that the two support amounts be off-set with the result being that the client's spouse, being the higher income earner, pays the net difference only as child support. Given this information, you have asked whether both spouses can claim the equivalent-to-married amount in respect of one child, despite the fact that the client's spouse is the only one who appears to making child support payments.
Subsection 118(5) of the Act prevents an individual from claiming an equivalent-to-married amount for a child if that individual is required to pay a support amount to his or her spouse or former spouse in respect of that child and the individual
lives separate and apart from the spouse or former spouse throughout the year because of the breakdown of their marriage; or
claims a deduction under section 60 of the Act for a support amount paid to the spouse or former spouse.
In the example outlined by you, each spouse is required to pay the other a support amount in respect of all of the children. We assume that the criteria of subsection 118(5) of the Act have otherwise been met. While the Child Support Guidelines may determine the quantum of support to be paid and may even provide for the netting out of reciprocal support amounts, the requirement to pay a support amount is ordinarily found in the written agreement or court order, as the case may be. As a result, it appears that neither spouse can claim an equivalent-to-married amount in the example cited by you. The fact that the spouses off-set or net the amounts of support payments due one another for reasons of practicality or convenience or because the Child Support Guidelines permit such off-setting, does not mean that the spouse with the lower support requirement is not required to pay child support under the terms of the applicable agreement or order.
We trust that these comments will be of assistance to you.
Yours truly,
Roberta Albert, CA
for Director
Business and Publications Division
Income Tax Rulings and
Interpretations Directorate
Policy and Legislation Branch
.../cont’d
.../cont’d
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