Dad and mom paying youngster 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,” typically known as the “equivalent-to-spouse” quantity. The credit score is on the market to a taxpayer who doesn’t have a partner or accomplice, however who lives with a dependent father or mother or grandparent, youngster, grandchild, brother or sister who’s both beneath the age of 18 or is wholly depending on the taxpayer as a consequence 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 fee is value $2,356. A parallel provincial credit score can be out there and its worth depends upon which province you reside in. The credit score quantity is diminished dollar-for-dollar by the online revenue of the dependant, and should solely be claimed as soon as per family annually, 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 kids dwelling at residence, the entitlement to the credit score will be complicated, as it would depend upon whether or not youngster assist is being paid and to whom. Beneath the Revenue Tax Act, the credit score can’t be claimed by a taxpayer who pays youngster assist to their former partner or accomplice. 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 supplied for equal shared custody of their two minor kids, with every father or mother having the youngsters 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 father or mother should pay to the opposite father or mother to assist assist their kids. The rules work on the precept that each dad and mom ought to share the identical portion of their revenue with their kids as in the event that they lived collectively. The rules set out month-to-month youngster assist quantities in a desk that makes use of the paying father or mother’s stage of revenue, and the variety of kids eligible for assist.

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

Beneath 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.” Every year, monetary info was to be exchanged between spouses as to their respective incomes, and the assist for the next yr can 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 “web 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 kids, they agreed to every declare the dependant credit score with respect to a specific youngster, and doing so “retains issues as equal as potential between them financially.”

A previous choice of the Federal Court docket of Enchantment discovered that within the context of assist funds and the dependant credit score, the “idea of set-off distracts from the true difficulty which is whether or not or not (the taxpayer) is the one father or mother making a baby assist cost.”

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

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That courtroom thought of 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 kids in accordance with their relative talents to take action. After figuring out their respective obligations to contribute beneath the rules, one father or mother could also be required to make youngster 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 youngster 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 is no such thing as a requirement within the settlement that she pay youngster 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 assert the dependant credit score since he was the only 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 “mirror their said intentions for revenue tax functions,” which can enable him to reopen the previous ten years of tax returns and request reassessments to permit the credit score beneath a particular rule within the Tax Act designed for conditions when neither father or mother can in any other case declare the dependant credit score.

In 2008, an identical case was dropped at Tax Court docket, through which a taxpayer tried to argue that Canada’s tax regulation discriminates in opposition to divorced dads like him, who share custody of their kids and pay youngster 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 among their two daughters for whom they shared joint custody. However the CRA denied his declare as he was the only father or mother paying youngster assist.

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

Jamie Golombek, FCPA, FCA, CFP, CLU, TEP, is the managing director, Tax & Property Planning with CIBC Non-public Wealth in Toronto. [email protected].

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