CRA confirms that the Lavrinenko interpretation regarding a shared-custody parent has been legislatively overruled retroactively

While normally the Canada child benefit (CCTB) 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 benefit. Formerly, one of the requirements in order to be a “shared‑custody parent” was 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 was to be handled by rounding relative residing-with-the-child percentages to the nearest multiple of 10% - so that if the percentage was below 45%, (e.g., 44%) it was to be rounded down to 40% (test failed), whereas if it was 45% or more, it was to be rounded up to 50% (test passed).

CRA was asked at the 2019 APFF Roundtable how it would respond to this decision. It waited until now to give its answer, which was to note that the “shared-custody parent" definition had since been retroactively amended (back to July 1, 2011) to provide that the individual must reside with the dependant "at least 40% of the time in the month in which the particular time occurs, or on an approximately equal basis." This had the effect of retroactively confirming a CRA policy that effectively accommodated in some circumstances a relative percentage somewhat lower than the Lavrinenko 45%.

Neal Armstrong. Summary of 5 November 2021 External T.I. 2019-0812631E5 F under s. 122.6(1) – shared-custody parent – para. (b).