Who Provides Primary Parenting Responsibilities for Benefit Payments?

June 15, 2022
Image of mother and child spending time together in forest.

written on behalf of Feigenbaum Law

At Feigenbaum Consulting, we offer services in both tax law and family law. While not unheard of, it’s not too common for the worlds of tax law and family law to intersect. Of course, finances play a big role in family law, especially when it comes to topics such as spousal support, child support, property division, and hidden assets, tax and family law can have areas of overlap.

Take, for example, the Canada Child Benefit, which is a national program that provides tax-free payments to eligible families with children under 18 years of age. The program is administered by the Canada Revenue Agency (CRA). For separated or divorced parents, the amount of money given to each parent depends on the amount of parenting time they have. If one parent has primary parenting time, they are likely to receive the entire benefit.

However, if parenting time is shared equally between parents, then the CRA will calculate how much each parent should receive individually. However, like most matters in family law, it is the responsibility of the parents to let the CRA know of any changes to parenting time. In this article, we look at a recent decision from the Tax Court of Canada in which the mother stated she was entitled to receive full benefits for a period of three years.

Parents have shared parenting time with children

The parents involved in the matter separated in 2018. From January 2019 through June 2021 the mother had claimed Canada Child Benefit payments. The CRA provided these to her until it eventually re-assessed her entitlement to the benefit after concluding that she and the father shared parenting time with the children. The court’s job in this case was to determine if the parents did in fact share parenting time of the child, and if so, if any changes to the Canada Child Benefit payments were necessary.

The court wrote early in its decision that the parents in this case, like in many cases, had a tendency to overemphasize their involvement with the children in order to strengthen their respective positions. The court wrote that their testimony was taken with a grain of salt. When conflicts in the evidence were presented, the court would eventually favour that which it believed had more credibility.

The criteria to determine if a parent is sharing custody with the other

The father told the court that he didn’t believe the mother should have received full child benefit payments because the two shared parenting time with their child. The court stated that parents are considered to be sharing custody if they meet three criteria. The first is that they must not be cohabiting spouses or common-law partners. The second is that they must reside with the child at least 40 percent of the time or an approximately equal basis. The final criteria is that each parent must primarily fulfil the responsibilities related to the care and upbringing of the child when the child resides with them.

Parenting was only shared for a limited time

The court found that the parents met the first part of the test, but the second and third required some analysis. The court found that the mother was the primary caregiver for the children for a number of months during the period in question, particularly when the children were not in school full time. There were also months immediately following their separation when the mother was the primary caregiver for both children because the father was looking for a permanent place to live.

In lieu of attending school outside of the home, the mother homeschooled their children beginning in September 2020, spending all of their weekdays with her. It was therefore not possible for them to have spent 40 percent or approximately that amount of time with their father. For the remaining months, primarily April to June 2019 and September 2019 to March 2020, the court looked at evidence provided by the parents that outlined where the children slept, with about two to three nights per week being with the father. Eventually the parents started sharing time more evenly, and the court found that by late 2019 the father was responsible for the children about 40 percent of the time.

However, the court said that simply having the children sleep at a home was not the same as providing primary care for them. Even when the children were living with the father, the mother managed their extracurricular activities, medical appointments, and other details in their lives. This led the court to conclude that the mother was responsible for the children, at least somewhat, even when they were in the care of the father. The court also concluded that the father essentially never cared for the children during the day on weekdays when they were in school or during school vacations. Except for two two-month stretches in late 2019 and early 2020, the father was not responsible for his children for the required time to collect a portion of the Canada Child Benefit.

Contact Feigenbaum Law in Toronto for Experienced Advice on Family Law Matters

At Feigenbaum Law, we understand the importance of ensuring your children are provided for after separation. We also realize that separation can leave a significant amount of issues for parents to resolve. We help clients work through these issues while keeping the best interests of them and their children in mind. We provide out clients with guidance intended to help them now while also planning for their futures. Our experience in both tax law and family law puts us in a unique position to provide our clients with a holistic approach to their legal issues. Mark Feigenbaum provides clients with reliable and strategic advice in family law disputes to help them move forward with as much financial stability as possible. Contact Mark online or by phone at 905-695-1269 (toll-free at 877-275-4792) to book a consultation.


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