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The Canada Child Tax Benefit — Which Parent Gets To Claim It?

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The Canada Child Tax Benefit — Which Parent Gets To Claim It?

The Canada Child Tax Benefit (CCTB), which is administered by the Canada Revenue Agency (CRA), is a monthly government payment made to parents in respect of any children under the age of 18. This tax-free benefit is intended to assist families with child-rearing costs.

In the traditional scenario involving an intact family, there is a legislative presumption that it is the child’s mother who primarily fulfills the responsibility for primary care; as such the mother is usually eligible for the CCTB, with some exceptions. The monthly CCTB cannot be prorated between the parents.

However, in cases where the parents are separated or divorced (and are not living together), the question of which of them is entitled to use the CCTB can factor into the allocation of custody and child support, and can arise in the context of the negotiation of these issues between the parties.

In a general sense, this determination of which of two separated or divorced parent is eligible for the CCTB will be governed firstly by the relevant legislative rules enacted under the federal Income Tax Act and its regulations. (And note that in this context the parents may be formally married, or else may common law spouses or merely cohabiting. Same-sex spouses also qualify). Among other things, these rules involve consideration each parent’s income, as well as the child’s living arrangements.

Specifically, the parent with whom the child is living – and who is “primarily responsible” for the child’s “care and upbringing” – will be entitled to the CCTB. The question of whether a parent meets this threshold is governed by provisions in the Income Tax Act regulations, and includes consideration of: whether the parent:

• supervises the child’s daily activities and needs;

• maintains a secure environment in which the child lives;

• arranges, and transports the child to, medical care at regular intervals;

• arranges, participates in, and transports the child to educational, recreational, athletic or similar activities

• attends to the needs of the child when he or she is ill;

• attends to the child’s hygienic needs on a regular basis; and

• generally provides guidance and companionship to the child.

Consideration will also be given to whether there is a court order in existence that concerns the child and which is valid in the jurisdiction in which the child lives.
Some additional points to know:

• There is no requirement that the child lives exactly 50% of the time with a parent, to be considered “residing with” the parent.

• In situations involving shared custody, the CRA may allocate CCTB eligibility equally to each parent for six months of each year.

• In cases where there has been a breakdown of the relationship and the parents have either divorced or have been separated for more than 90 days, the eligibility by one or the other parent for CCTB will be determined after a review by the

CRA in cases where the child spends considerable time with each parent. The CRA’s review will consider which of the parents is primarily responsible for the child’s care and upbringing, including consideration of any relevant court orders.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.