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.
Principal Issues: Can a father that pays child support to his spouse claim the wholly dependent person tax credit (the "credit")?
Position: No claim can be made by the father for the credit in respect of the particular child that the child support is in respect of.
Reasons: Where spouses have been living separate and apart throughout the year paragraph 118(5)(a) of the Act would apply to prevent the parent that is required to pay a support amount to his spouse or former spouse, in respect of a child, from claiming the credit under paragraph 118(1)(b) of the Act for that child.
August 12, 2010
Karla.Moro@cra-arc.gc.ca Income Tax Rulings Directorate
Ontario Corporate Tax Division
Nancy Shea-Farrow
905-721-5226
Attention : Karla Moro
2009-034173
Wholly Dependent Person Tax Credit
This is in response to your e-mail that was received on September 21, 2009 regarding the wholly dependent person tax credit (the "credit"). You want to know if a father who pays child support to his spouse can claim the credit?
The facts as we understand them are as follows:
1. The couple are legally separated.
2. The couple has three children that are all under the age of 18.
3. The couple has joint custody and the children live with their father 50% of the time and 50% of their time with their mother.
4. The father pays child support to the mother and the support payments are not tax deductible.
5. The mother does not pay child support.
For purposes of this reply, we have assumed that the child support payments that are required to be made qualify as a "support amount" as defined in subsection 56.1(4) of the Income Tax Act (the "Act") (see paragraph 4 of Interpretation Bulletin IT-530 "Support Payments"). We also assume that the spouses have been living separate and apart throughout the year.
In general, where an individual does not claim a spousal tax credit under paragraph 118(1)(a) of the Act, and subject to certain other requirements set out in paragraph 118(1)(b) of the Act, an individual may claim a tax credit in respect of a wholly dependent person. Subsections 118(4) and 118(5) of the Act contain further restrictions with respect to an individual's entitlement to the credit.
The restriction on claiming the credit when child support is payable, that is relevant to your enquiry, is found in subsection 118(5) of the Act. Paragraph 118(5)(a) of the Act would apply to prevent the parent that is required to pay a support amount to his spouse or former spouse in respect of a child from claiming the credit under paragraph 118(1)(b) of the Act for that child. Where a parent is required to pay a support amount for a particular child, this would not preclude that parent from claiming the credit for another child for whom no support is payable, provided all of the other conditions are met. However, although it is not clear from your facts we assume that the father is paying support in respect of all the children and thus would not be able to claim the credit for any of the children.
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We trust that these comments will be of assistance to you.
Sharmini Ratnasingham
Assistant Director
for Director
Ontario Corporate Tax Division
Income Tax Rulings Directorate
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