In my early years as a tax preparer, the issues re eligible dependent and child tax benefit claims became a big post tax season time and maintenance drain for both myself and my clients because I did not have a clear checklist and process for verifying rights, claims, and actual custody. My follow-up time and support times could run into days for a simple tax, low priced tax returns unless I managed documentation requirements and expectations properly. These types of returns were my second most time consuming on-going maintenance issues after proprietorships with GST and taxpayer prepared incorrect income and expense statements.
Now I require the following:-
- Proof of separate residences
- Proof of marital status
- Proof of child custody agreement
- Copies of court registered separation and/or divorce agreement
- Copies of court registered child custody agreement (each and every version)
- Spousal support agreement (if applicable and every version)
- Annual, signed list of days each child was in the custody of which parent. This could be set days + variations for vacations, or, an annual list of actual days. Must be signed by both parents or have two third party supporting documentation per CRA benefits audit acceptance.
Without these documents I will not accept any of the above claims.
Please note that in Sprong v The Queen the child custody agreement trumps the actual days on which each parent had custody.
Sprong v. The Queen.
Tax Court of Canada (French Text), November 26, 2019. Neutral Cite: 2019 CCI 261. Court File No. 2018-3195(IT)I. Favreau J. Canada Child Tax Benefits (CCTBs)
— Whether Minister justified in finding that separated taxpayer had shared custody of her children for Canada Child Tax Benefit purposes —
The taxpayer and N separated in September 2012, and the taxpayer was given exclusive legal custody of the couple’s two children, C and M, in a judgment dated April 25, 2013. In fact, however, C and M lived on different days separately with each of the taxpayer and N.
The Minister determined that:
(a) the taxpayer, for certain periods (the “Periods”), was an eligible individual having shared custody of C and M for GST/HST tax credit and Canada Child Benefit purposes; and
(b) as a result, the taxpayer was not entitled exclusively to this tax credit and Benefit for the Periods in issue.
On appeal to the Tax Court of Canada, the taxpayer argued, in part, that she had exclusive legal custody of C and M, and that N merely had access rights to them.
In allowing the taxpayer’s appeal, the Court concluded that she was not a person having shared custody of C and M.
As a result, she was entitled to the entire tax credit and Child Benefit for the relevant Periods.
— ITA s. 122.5 and 122.6.