Section 122.6

Cohabiting Spouse or Common-Law Partner

Administrative Policy

2 February 2017 Quebec CPA Individual Taxation Roundtable Q. 1.3, 2016-0674821C6 F - Individuals separated living under the same roof

couple under the same roof can be living separate and apart

Can two individuals live separate and apart, while remaining under the same roof, and what support should they provide to support that status? CRA stated:

The generally accepted criteria to determine whether two individuals live separate and apart were… affirmed…in M. v. H [[1999] 2 S.C.R. 3, para. 59]. These include shared shelter, sexual and personal behaviour, services rendered between them, social activities and relations, economic support and children, as well as the societal perception of the couple. …

Where a taxpayer and the taxpayer’s ex-spouse or former common-law partner state that they are living at the same address, but consider themselves as merely roommates from the date of separation, the following documents may support a request for validation:

  • Divorce document;
  • A court order or a legal separation agreement that sets out legal details of the arrangements for the individuals, child custody and provision for child support;
  • Other legal documents;
  • Mortgage documents showing the assumption of the entire mortgage by one of the parties and the effective date of the change;
  • Proof of individual vehicle loans indicating the effective date of the change, if applicable;
  • Proof of automobile insurance for each former spouse or common-law partner indicating the effective date of the change (from family to individual);
  • Proof of individual medical insurance indicating the effective date of the change or the date the spouse or common-law partner was removed from the client's file;
  • Individual credit card statements indicating the effective date of the change, if applicable;

Letter from an independent third party, supplemented by persons in authority, attesting that the two individuals live at the same address but live separate and apart and no longer appear as a couple since a certain date.

Words and Phrases
living separate and apart
Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Common-Law Partner meaning of living "separate and apart" 73

21 November 2014 External T.I. 2014-0536771E5 F - Supplément pour frais médicaux – Revenu modifié

surviving spouse is not living separate and apart from deceased spouse at year end

Where a "cohabiting spouse or common-law partner" dies during a taxation year, is the income of the deceased spouse included in the computation of the refundable medical expense supplement ("RMES") of the surviving spouse; and is the surviving spouse's income included in the calculation of the RMES in the terminal return of the deceased spouse? CRA responded:

[A] person is considered to be living separate and apart from an individual… if the person lives separate and apart from the individual at that time because of a breakdown in their marriage or common-law relationship for a period of at least 90 days that includes that time.

Thus, even if the surviving spouse does not live with the deceased spouse at the end of the year, the surviving spouse is deemed to be living with the deceased spouse if at the time of death he or she had not been living separate and apart from the individual because of a breakdown in their marriage or common-law relationship for a period of at least 90 days that included that time.

Consequently, the surviving spouse must take into account the income of the deceased spouse in the computation of the RMES on the surviving spouse’s income tax return. As for the computation of the deceased's RMES, it must take into account the net income in the deceased's final return as well as the net income of the spouse or common-law partner for the entire year.

Eligible Individual

Cases

Weidenfeld v. Canada, 2011 DTC 5008 [at 5545], 2010 FCA 333

The taxpayer gave Jewish Family and Children's Services ("the Agency") temporary guardianship of his son in order to address his son's behavioural problems. The Agency placed the son in various foster homes and then a residential treatment centre. In determining that the son was not an eligible dependant during the time spent in the Agency's care, the trial judge found that the son did not reside with the taxpayer for that period.

The Court of Appeal found no palpable or overriding error in the trial judge's findings. The Agency had demonstrable control over the son's place of residence. Pelletier J.A. also remarked at para. 8 that "during his stay at the centre, the son's weekend visits with his father were just that, visits, and were not sufficient to re-establish residence with his father. The same is true of his 2 week stay with his father during his period of suspension from the Centre."

Matt v. The Queen, 2003 DTC 5075 (FCA)

Before referring the application for judicial review back to the Minister for reassessment on the basis that the taxpayer was an eligible individual for the month of August, 1998, Strayer J.A. noted that the definition clearly contemplated that the "eligible individual" may change from time to time and that the Court understood this to mean that there could be only one eligible individual within any given month.

Nelson v. Canada (Attorney General), 2002 DTC 7578, 2002 FCA 451

The matter was remitted to the Tax Court for redetermination given that the Tax Court Judge had mistakenly found that the mother rather than the applicant had attended Home and School Association meetings, and had given too much weight to a Corollary relief judgement that referred to the primary residence being that of the mother and otherwise essentially just took into account the factors described in Regulation 6302(a) to (g).

The Queen v. Marshall, 96 DTC 6292 (FCA)

S.122.6 contemplates only one parent being an "eligible individual". Accordingly, a judgment of the Tax Court in which it prorated the credit between two persons claiming to be eligible parents, was set aside, with the matter being remitted to the Tax Court for redetermination on the basis that it was the female parent who, on the facts, was the person who primarily fulfilled the responsibility for the care and upbringing of the children of the marriage.

See Also

Kaplan v. The Queen, 2014 DTC 1181 [at 3671], 2014 TCC 215 (Informal Procedure)

ample evidence that taxpayer was US resident

Lyons J found that there was ample evidence to support that the taxpayer, who was a US and Canadian citizen at birth, was not resident in Canada and therefore not eligible for Canada child tax benefits. Among other things, he was married in the US, lived there with his wife and five children, and could offer no credible support for his claim that he later intended to return to Canada.

Levin v. The Queen, 2015 DTC 1121 [at 755], 2015 TCC 117 (Informal Procedure)

notwithstanding joint-custody agreement, taxpayer's children in fact lived with their mother

The taxpayer claimed the Canada Child Tax Benefit (“CCTB”) for his three children for the 2009, 2010, 2011 and 2012 base taxation years. Pursuant to a Consent Judgment, the taxpayer and his wife had come to an agreement for joint custody in 2001 with the taxpayer having the care of the children for six days in every two week period. However, over the years in question, the children elected one-by-one to live full-time with their mother.

V.A. Miller J dismissed the appeal on the basis of s. 122.6 of the Act as she found that the taxpayer did not reside with the qualified dependants on an equal or near equal basis for the periods in question and so therefore was not a shared-custody parent during those times.

Agrebi v. The Queen, 2015 DTC 1027 [at 119], 2014 TCC 141

being deported to Tunisia means not normally residing in Canada

The taxpayer had a child in 2002, was deported back to Tunisia in 2004, and returned to Canada in 2010. Jorré found that the taxpayer was ineligible for Canada child tax benefits and GST/HST tax credits for the period he stayed in Tunisia, as he did not normally reside in Canada in that period.

Eliyin v. The Queen, 2014 DTC 1120 [at 3294], 2014 TCC 125

son in India "resided with" Canadian taxpayer

The taxpayer and his wife applied from India for immigration visas in 2004, which were granted in 2010. The taxpayer's wife and mother died shortly before his immigration, so he decided to keep his son in the Indian boarding school he attended, in order to avoid disrupting his son's education while establishing himself in Canada.

Based on Charafeddine, Hogan J found that the son resided with the taxpayer, so that the taxpayer eligible for Canada Child Tax Benefits. He stated (at para. 22):

[T]he appellant and [his son] would have been living together during the period at issue were it not for the unforeseen death of the Appellant's wife... . I do not believe that the legislative intent behind the residency requirement was to exclude otherwise eligible families who have had to adapt to unfortunate circumstances.

Peixoto DaFonseca v. The Queen, 2014 DTC 1091 [at 3157], 2014 TCC 88 (Informal Procedure)

primary financial contributor was not primary caregiver

The taxpayer's daughter and grandchildren lived in the taxpayer's home. The daughter was a welfare recipient and, although she contributed the portion of that assistance designated by Ontario works as being for rent to the taxpayer as rent, the taxpayer was the primary financial contributor. Nevertheless, Pizzitelli J found that the Minister was correct in finding that the taxpayer's daughter was the primary caregiver of the children, as she supervised their daily activities and educational, hygienic, recreational and medical needs. It was infeasible for the taxpayer to provide a similar degree of care, given her eight hour shifts as a personal caregiver three or four times per week. Therefore, the Minister's retroactive denial of the taxpayer's Canada child tax benefits and national child benefit supplements was correct.

Mitchell v. The Queen, 2014 DTC 1082 [at 3097], 2014 TCC 66 (Informal Procedure)

interim court order had no weight

VA Miller J found that the taxpayer's claim that his sons resided primarily with him rather than on a near-equal basis with his wife as well founded. She based this conclusion partly on the taxpayer's and his sons' testimony, and a court order retroactive to the beginning of the period in question. An interim court order giving custody to the wife in that period had had no weight, as it was obtained without notice to the taxpayer and did not reflect reality.

Guerrero v. The Queen, 2014 DTC 1033 [2691], 2013 TCC 342 (Informal Procedure)

slightly less custody, and obligation to pay child support

Favreau J found that the taxpayer was not the parent who primarily fulfils the responsibility for the care and upbringing of his son, as the fact that his ex-wife had custody of the son for more days (four of every seven) and that he had to pay child support "clearly tend[ed] to demonstrate" that she was the one primarily responsible for the son's care and upbringing.

Hrushka v. The Queen, 2013 DTC 1254 [at 1430], 2013 TCC 335 (Informal Procedure)

court order

Woods J found that the taxpayer was not an eligible individual, given the inclusion in Regulation 6302(h) of court orders as a factor to consider. The taxpayer's separation from his spouse was subject to an interim court order that provided that he had custody of their daughter on Wednesday and Friday afternoons, and on every other weekend - significantly less time than the mother had.

Although the taxpayer was also involved in his daughter's school life and was more frequently able to pick her up on an emergency basis, this was not enough to establish that the mother did not assume primary responsibility for the daughter. Woods J noted that both were dedicated parents, and that this should not be a factor in deciding who is entitled to benefits (para. 25).

Armstrong v. The Queen, 2013 DTC 1191 [at 1030], 2013 TCC 238 (Informal Procedure)

father primary contributor

The taxpayer's former spouse was the primary caregiver for the taxpayer's daughter and received the resulting Canada Child Tax Benefits. Angers J found that the taxpayer became the primary caregiver when the daughter moved in with him following a falling-out with her mother. Although the mother and the mother's parents continued to see the daughter regularly, the father's contributions (including daily drives to a school in the mother's neighborhood) established that he was the primary contributor.

The taxpayer had neglected to file a return for one of the years in question. Angers J ordered that his s. 122.6 credits be determined once he filed the return.

Van Boekel v. The Queen, 2013 DTC 1120 [at 633], 2013 TCC 132 (Informal Procedure)

Woods J found that, although the taxpayer and her former spouse had intended to split custody of their children on a 60/40 basis, the taxpayer in fact had custody closer to 75% of the time. It was therefore clear that she was not a shared-custody parent and was thus entitled to full Canada child tax benefits.

Dexter v. The Queen, 2012 DTC 1173 [at 3430], 2012 TCC 176 (Informal Procedure)

The taxpayer, who was separated from her husband, claimed Canada child tax benefits in respect of their son. Webb J. found that, in the absence of Minister assumptions of facts regarding the conditions set out in paras. (b) and (f) of the definition of "eligible individual," the taxpayer could benefit from the female parent presumption in para. (f) as long as she could show that her son resided with her at any point during the period in issue (para. 9). Webb J. stated (at para. 14):

It seems to me that whether her son was "in her care for the purposes of the CCTB" is a conclusion of mixed fact and law. ... Section 6302 of the Regulations sets out the various factors that are "to be considered in determining what constitutes care and upbringing of a qualified dependant." The Minister should have assumed the factual components of the test for "care and upbringing" not the conclusion that the child was "not ... in her care" for the purposes of the CCTB or that the child was in the "care" of someone else.

Webb J. only denied the CCTB credits for the times when, according to the taxpayer's own evidence, her son clearly did not reside with her.

C.P.B. v. The Queen, 2012 DTC 1148, 2012 TCC 126 (Informal Procedure)

The taxpayer was able to prove that she was the sole primary caregiver for one of her children (and therefore the only "eligible individual" for a Canada Child Tax Benefit) but not for the other. The children spent equal time living with the taxpayer and her separated husband on a week-on/week-off basis, which led to a presumption that they shared equally in providing care. The taxpayer's evidence was enough to reverse this presumption for her son with autism, but not for her daughter. Although both children received treatment for behavioural issues, which the father refused to pay for or participate in, the son's treatment was significant and the daughter's less so. On an application of the evidence to the list of factors in Regulation 6302, Rip C.J. found that the taxpayer's "efforts and support, both emotional and financial, to the son eclipsed that of the father."

Vegh v. The Queen, 2012 DTC 1131 [at 3160], 2012 TCC 95 (Informal Procedure)

The Canadian taxpayer moved to teach English in China, where he met and married his wife and had two children. Boyle J. upheld the Minister's position that the taxpayer was not a Canadian resident for the period in issue and that the taxpayer's claimed Canada Child Tax Benefits should therefore be denied.

The Minister had also raised the female-presumptive rule in para. (f) of the s. 122.6 definition of "eligible dependant" to argue that the taxpayer was not the primary caregiver. The Minister initially took the position that the taxpayer's wife, being a Chinese citizen and therefore not an eligible individual for the purpose of the CCTB, did not have standing to waive the para. (f) presumption. The Minister subsequently abandoned this position. Boyle J. agreed obiter dicta with the Minister that the position had been incorrect (para. 3).

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 2 - Subsection 2(1) 129

Mesamour v. The Queen, 2010 DTC 1164 [at 3353], 2010 TCC 131 (Informal Procedure)

The taxpayer cared for a number of refugee children under PRAIDA, a regional assistance program, and the taxpayer applied for the Canada child tax benefits. Favreau J. found that the taxpayer was not an "eligible individual" under s. 122.6 because the taxpayer was not the parent of the children under the extended definition of "parent" in 252(1)(b). While the taxpayer had custody of the children, the children where not wholly dependent on her given that PRAIDA provided financial assistance for housing, optometry and dentistry.

Charafeddine v. The Queen, 2010 DTC 1281 [at 3953], 2010 TCC 417 (Informal Procedure)

children's being abducted and held in foreign country by estranged spouse did not disrupt CCTB eligibility

The taxpayer's children were abducted by her husband in Lebannon, and were being held there while the taxpayer tried to effect their return to Canada. At issue was whether the children "resided" in Canada and whether the taxpayer was the one who "primarily [fulfilled] the responsibility for [their] care and upbringing" as per s. 122.6.

Sheridan J. concluded that both criteria were met. Finding that the taxpayer "resided" with her children was appropriate, given that (para. 16):

The legislative objective of putting financial resources in the hands of the parent upon whom the children are dependent for their care and well being must also be respected.

She also stated that "[t]here is something fundamentally flawed with the notion that children wrongfully detained in a foreign country can be 'settled' there" (para. 8). On the same reasoning, the taxpayer was also resident in Canada for the year she spent in Lebannon trying to recover her Children.

The taxpayer was primarily responsible for the children, despite the husband's conduct precluding the taxpayer from caring for the children in any of the ways listed in s. 6302 of the Regulations except for paras. (b) and (h). Sheridan J. ruled that, in the extraordinary circumstances of the case, this was enough to make the taxpayer primarily responsible for the children.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 2 - Subsection 2(1) 114

itr 6302

See Also

Reynolds v. The Queen, 2015 DTC 1119 [at 749], 2015 TCC 109 (Informal Procedure)

33-49 split was not “equal or near-equal” basis

The taxpayer took care of her two step-sons for approximately 33% of the hours in a given two-week period, while her spouse's ex-wife took care of them for approximately 49% of the time – the balance being taken up by school.

VA Miller J found that the 33-49 split meant that the children did not reside with the taxpayer on an equal or near-equal basis, and thus denied the taxpayer's claim for the Canada Child Tax Benefit and Goods and Services Tax Credit.

Shared-Custody Parent

See Also

Zara v. The Queen, 2017 TCC 45 (Informal Procedure)

60/40 is “near equal”

Parents negotiated an agreement on custody and parenting rights that was incorporated into their divorce order by the Quebec Courts, with shared custody set out to be 60:40, and with specified details of a three-week rotating schcdule. CRA decided that that they were shared custody parents for July and August but that they were not shared custody parents during the school year and that the children resided principally with their mother.

Boyle J stated (at paras 2 and 3):

…[P]aragraph (b) of the definition of shared custody parent…requires that the children reside equally or near equally with both parents. The decisions of this Court applying the near equal requirement have recognized near equality if the time residing with each parent is within the 60:40 range, and has rejected near equality at 65:35.

Boyle J found (at para 10):

CRA incorrectly completed a notional four-week calendar which, given it was a three-week repeating cycle as described, wrongly favoured the mother in the fourth week. … CRA’s analysis arrived at about 65:35.

He also noted (at para. 16):

Since they are co-parenting with shared parental responsibilities and the school and daycare are aware of the precise terms of their divorce order, it might be more appropriate to consider seven hours of each school day as 50:50 [rather than 100% to the mother]. I am not deciding that point.

Boyle J allowed the appeal, stating (at paras 17, 20):

When Parliament tells me to decide if it is near equal, I am not certain one need always spend hours in Court debating each hour of each day of each month.

I think what is most important is that it is clear that the mother and the father agreed as part of their divorce to share parental responsibility and to have shared custody on a 60:40 basis, full stop.

Words and Phrases
near equal

Fortin v. The Queen, 2014 DTC 1164 [at 3572], 2014 TCC 209 (Informal Procedure)

43-57 split was near equal

Based on Brady, Lamarre J found that a taxpayer who had custody of his children 43% of the time was caring for them on a near equal basis with his wife.

Hrushka v. The Queen, 2013 DTC 1254 [at 1430], 2013 TCC 335 (Informal Procedure)

court order

The taxpayer's separation from his spouse was subject to an interim court order that provided that he had custody of their daughter on Wednesday and Friday afternoons, and on every other weekend - which, on its face, fell significantly short of residing with his daughter on an equal or near equal basis with her mother. Although the taxpayer was also involved in his daughter's school life and was more frequently able to pick her up on an emergency basis, this extra involvement did not bear on residency.

Brady v. The Queen, 2012 DTC 1204 [at 3537], 2012 TCC 240 (Informal Procedure)

45-55 split was near equal; obiter dictum that 75-25 split would not be

Campbell J. found that a 55-45 division of child custody between two taxpayers, by time, was "clearly within" what Parliament meant to capture with the words "near equal" (paras. 31-32), and (in obiter dicta) that a 75-25 split would not be (para. 30). The taxpayer's 55% custody of her children in a typical week (with the father taking the balance) therefore made her a shared-custody parent, and she was ordered to repay an overpayment of Canada Child Tax Benefits.