Dad and mom paying baby assist can get dependant tax credit score denied

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Among the many many private non-refundable credit some taxpayers can declare on their private tax return is the “eligible dependant credit score,” generally known as the “equivalent-to-spouse” quantity. The credit score is out there to a taxpayer who doesn’t have a partner or associate, however who lives with a dependent dad or mum or grandparent, baby, grandchild, brother or sister who’s both below the age of 18 or is wholly depending on the taxpayer as a result of a bodily or psychological incapacity.

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For 2024, the dependant quantity is $15,705, which on the federal 15 per cent non-refundable tax credit score price is price $2,356. A parallel provincial credit score can also be accessible and its worth is determined by which province you reside in. The credit score quantity is lowered dollar-for-dollar by the online revenue of the dependant, and will solely be claimed as soon as per family every year, by one particular person. About a million taxpayers claimed this credit score in 2021.

For fogeys who’re separated or divorced and nonetheless have minor youngsters dwelling at dwelling, the entitlement to the credit score will be complicated, as it should rely upon whether or not baby assist is being paid and to whom. Below the Revenue Tax Act, the credit score can’t be claimed by a taxpayer who pays baby assist to their former partner or associate. A current case determined by the Tax Court docket in October handled the entitlement to the credit score.

The taxpayer and his now ex-spouse had separated in March 2016. The couple entered right into a written separation settlement in July 2016, which offered for equal shared custody of their two minor youngsters, with every dad or mum having the children for an equal variety of days over a repeating four-week cycle.

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When {couples} separate, the Federal Little one Help Pointers are used to legally decide the quantity of kid assist one dad or mum should pay to the opposite dad or mum to assist assist their youngsters. The rules work on the precept that each mother and father ought to share the identical portion of their revenue with their youngsters as in the event that they lived collectively. The rules set out month-to-month baby assist quantities in a desk that makes use of the paying dad or mum’s stage of revenue, and the variety of youngsters eligible for assist.

Within the case of fifty/50 custody, the kid assist is often calculated for every dad or mum, the decrease quantity is deducted from the upper, and the upper incomes dad or mum pays the opposite dad or mum the distinction. This is called “set-off” assist.

Below the phrases of this couple’s settlement, based mostly on the husband’s annual revenue of $55,000 and the spouse’s revenue of $36,500, the husband was to pay to his ex-wife, starting in September 2016, the kid guideline quantity of $289 monthly, “being an quantity calculated on the set-off of assist based mostly upon the respective revenue of the events.” Annually, monetary data was to be exchanged between spouses as to their respective incomes, and the assist for the next yr could be adjusted accordingly.

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The taxpayer argued that one cheque representing the set-off quantity was paid by him to his ex-spouse for “internet comfort, i.e. to keep away from the inconvenience of sending cheques to one another.”

The Canada Income Company denied the taxpayer’s declare for the dependant credit score for 2018 and future tax years. The taxpayer submitted a jointly-signed letter dated January 7, 2023 to the CRA saying that the couple has all the time had a mutually agreed shared 50/50 custody settlement for each youngsters, they agreed to every declare the dependant credit score with respect to a specific baby, and doing so “retains issues as equal as attainable between them financially.”

A previous choice of the Federal Court docket of Attraction discovered that within the context of assist funds and the dependant credit score, the “idea of set-off distracts from the actual concern which is whether or not or not (the taxpayer) is the one dad or mum making a toddler assist cost.”

In that case, the taxpayer paid month-to-month baby assist in an quantity that represented a set-off between what he and his former partner have been every required to contribute below the rules. Whereas their respective guideline incomes have been referenced within the courtroom order, solely the taxpayer was directed to pay a assist quantity.

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That courtroom thought-about the Supreme Court docket of Canada’s assertion that the underlying precept behind the rules is that spouses have a joint monetary obligation to assist their youngsters in accordance with their relative talents to take action. After figuring out their respective obligations to contribute below the rules, one dad or mum could also be required to make baby assist funds to the opposite; nevertheless, “the set-off idea doesn’t rework the respective obligations into assist funds for revenue tax functions.”

Within the present case, the couple’s separation settlement solely required the taxpayer to pay baby assist. With respect to his ex-spouse, whereas her revenue was considered within the guideline calculation and the revenue quantity seems within the settlement, there isn’t any requirement within the settlement that she pay baby assist to the taxpayer based mostly on her guideline revenue.

Whereas the decide appreciated the taxpayer’s arguments, she famous that the case regulation and tax laws are clear in that they don’t allow the taxpayer to say the dependant credit score since he was the only real payor of kid assist.

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She did, nevertheless, encourage the taxpayer and his ex-spouse to think about updating the wording of their separation settlement to “replicate their acknowledged intentions for revenue tax functions,” which can permit him to reopen the previous ten years of tax returns and request reassessments to permit the credit score below a particular rule within the Tax Act designed for conditions when neither dad or mum can in any other case declare the dependant credit score.

In 2008, an analogous case was delivered to Tax Court docket, during which a taxpayer tried to argue that Canada’s tax regulation discriminates in opposition to divorced dads like him, who share custody of their youngsters and pay baby assist to their former spouses. As a part of his divorce settlement, he and his ex-wife had agreed that every would declare the dependant credit score for one in every of their two daughters for whom they shared joint custody. However the CRA denied his declare as he was the only real dad or mum paying baby assist.

The decide in that case went on to clarify that the quantity that the taxpayer was required to pay as baby assist below the rules already takes under consideration the truth that, as somebody who pays assist, he wouldn’t be entitled to say the dependant credit score, and in consequence, his baby assist cost is lower than it might have been if he have been entitled to say the credit score.

Jamie Golombek, FCPA, FCA, CFP, CLU, TEP, is the managing director, Tax & Property Planning with CIBC Non-public Wealth in Toronto. Jamie.Golombek@cibc.com.

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