Last week, the federal government introduced draft legislation that would retroactively change the definition of a shared-custody parent to a parent that resides with the child at least 40 per cent of the time in a month. As the government explained in a backgrounder, “This test is intended to be consistent with the concept of shared custody in the Federal Child Support Guidelines.”
For parents who are separated or divorced, however, the rules that determine whether each parent can collect CCB payments depend on whether the parents have shared custody. Under the Income Tax Act, a parent is considered to be a “shared-custody parent” if the child lives with each parent in separate residences on a “more or less equal basis.
The Tax Court judge concluded that “the phrase ‘equal or near equal basis’ does not permit a very wide variation from equal residence… A child who spends 40 per cent of his or her time with one parent spends only two-thirds as much time with that parent as the other.” The judge therefore concluded that the father was not a shared custody parent and thus was not entitled to any CCTB payments.
A CRA auditor reviewed this biweekly schedule and then calculated the number of hours in a two-week period that the child would be with each parent and concluded that their son spent 41.37 per cent of the time with his father and 58.63 per cent of the time with his mother.