Few non-custodial parents know it, but they too can be eligible for Child Tax Benefit Credits under certain conditions. According to Canada Customs and Revenue Agency’s website (http://www.ccra-adrc.gc.ca), the Child Tax Credit is defined as follows:
The CCTB is a non-taxable amount paid monthly to help eligible families with the cost of raising children under the age of 18.
Included in the CCTB is the National Child Benefit Supplement (NCBS), a monthly benefit for low-income families with children. The NCBS is the Government of Canada’s contribution to the National Child Benefit (NCB), a joint initiative of federal, provincial, and territorial governments.
Prior to 2003, it was generally thought that only the custodial parent was eligible to receive this benefit. A determination was made however in the decision of Matte v. Canada [2003] F.C.J. No. 43 (F.C.A.) that under certain conditions, non-custodial parents could also collect the benefit.
In Matte v. Canada, a non-custodial mother made a claim to the Minister of National Revenue for 1 month of benefits when she had the children for access for a month in the summer. The Minister paid her the benefit and then later claimed that this had been an overpayment. The Minister held that she was not an eligible individual” within the meaning of section 122.6 of the Income Tax Act and that only the father was an eligible individual”. The father had custody of the children by court order and was, in the view of the Ministry, the one who primarily fulfils the responsibility for the care and upbringing” of the children, which are the conditions for payment of the benefit under the Act.
The Mother asserted that she primarily fulfilled the responsibility for the care and upbringing of the children during the time that they were with her, thus making her eligible. The Federal Court of Appeal agreed.
Section 122.6 of the Income Tax Act defines eligible individual” in part as follows:
eligible individual” in respect of a qualified dependant at any time means a person who at that time
(a) resides with the qualified dependent,
(b) is the parent responsible for the care and upbringing of the qualified dependent.
The Court found that because the phrase at any time” was included in the definition, this meant that the person who may be considered an eligible individual” could change from time to time so long as at the relevant time, he or she was primarily fulfilling the responsibility of caregiver.
The term primarily responsible’ according Canada Customs and Revenue Website means the following:
This means you are responsible for such things as supervising the child’s daily activities and needs, making sure the child’s medical needs are met, and arranging for child care when necessary. If there is a female parent who lives with the child, we usually consider her to be this person. However, if the female parent does not live with the child, it could be the father, a grandparent, or a guardian.
By being in this role for the month in which she had access, the non-custodial mother became an eligible individual”.
Because of the structure of the payments of the benefit (on a 1/12 or monthly basis), the Court determined that the minimum period for which the Child Tax Benefit could be claimed was one month and that the person making the claim had to be fulfilling the responsibility of caregiver at the beginning of that month, but not necessarily be responsible for the entire month. Two persons cannot collect in the same month however.
The Canada Customs and Revenue website does suggest that separated parents can split the benefits equally to 6 months each if the situation of care and control warrant it, but this decision clearly shows that even for periods as little as one month, the non-custodial parent can collect the Child Tax Benefit.
The applicable forms are available on the Canada Customs and Revenue website. Any application of this sort by a non-custodial parent would have to be accompanied by a letter explaining the custody and access situation which would warrant payment.
