Words and Phrases - "near equal"
Lavrinenko v. Canada, 2019 FCA 51
At issue was whether the taxpayer was entitled to receive the Canada Child Tax Benefit (CCTB) and the GST/HST credits (the “Benefits”) in respect of his son “S” from December 2012 to June 2016 on the basis that he had been residing with the child “on an equal or near equal basis” and thus satisfied para. (b) of the “shared‑custody parent” definition. The taxpayer submitted that the percentage of time that he resided with his son was 40.87%.
In finding that the para. (b) “near equal” test was not satisfied, Webb JA stated (at paras. 37, 41-43):
… Parliament intended that "“near equal”" be interpreted as essentially or almost equal. …
[A]ny percentage of time that cannot be rounded off to 50% would not qualify as near equal. …
[A]ny rounding of percentages should not be restricted to rounding to the nearest percentage point but rather to the nearest whole number that is a multiple of 10 and another whole number. For example, 48% would be rounded to 50% and 44% would be rounded to 40%. This would allow some flexibility for the imprecise data that may be available and still reflect the intention of Parliament that the child reside on an equal or near equal basis with each parent.
On this basis, even accepting Mr. Lavrinenko’s submission that he resided with his child 41% of the time (which would be rounded to 40%), he does not satisfy the requirement that he resided on an equal or near equal basis with his son.
Lavrinenko v. The Queen, 2017 TCC 230 (Informal Procedure), aff'd 2019 FCA 51
This was an appeal from determination by the Minister that the taxpayer was not entitled to receive the Canada Child Tax Benefit and the GST/HST credits (the “Benefits”) in respect of his son “S” from December 2012 to June 2016 on the basis that the taxpayer was not a “shared‑custody parent” of S. The sole issue in dispute in this appeal is whether the Appellant and his ex-spouse resided with S on an “equal or near equal basis” during the relevant period.
Paris J dismissed the appeal, stating (at paras 17, 19, and 20):
…In Brady v. The Queen, 2012 TCC 240, Campbell J. considered that Parliament intended that the words “near equal basis” in the definition of “shared-custody parent” to mean “only a small difference between the amounts of time spent with each parent”. She went on to say that “parents whose circumstances exhibit only slight differences or close differences, will fall within this amendment” (emphasis added). In the Brady case, a split of 55%/45% in the time the child spent with each parent was found to be near equal.
I agree with Woods J. [in Van Boekel v. The Queen, 2013 TCC 132] that the phrase “equal or near equal basis” does not permit a very wide variation from equal residence. In my view, a 60%/40% split is a wide variation. … The contrary conclusion would strain the ordinary meaning of the words “equal or near equal”. Anything less than 40% would clearly not qualify as “near equal”.
I conclude that the Appellant resided with S somewhat less than 40% of the time during the period in issue… .[I]n my view even a 60%/40% split would not qualify the Appellant as a shared‑custody parent.
Zara v. The Queen, 2017 TCC 45 (Informal Procedure)
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.