Executive Summary: Key Legal and Evidentiary Issues

• Central dispute concerns whether the Appellant qualifies as a "shared-custody parent" under section 122.6 of the Income Tax Act for Canada Child Benefit (CCB) eligibility.

• The statutory 40% residency threshold must be met, or alternatively, residence must occur on an "approximately equal basis" per the 2021 amendments.

• "Residing" with a child requires a settled and regular abode—not merely parenting time or visits at malls, restaurants, or recreational activities.

• Two British Columbia court orders established that the children resided primarily with the father, with the mother receiving limited weekday visits and select weekends.

• Evidence demonstrated the Appellant resided with her children approximately 26% of the time, falling well below the required 40% threshold.

• The Respondent conceded shared-custody status for March 1, 2021, to August 31, 2022, while disputing eligibility for subsequent periods.

Background and family circumstances

Fernanda Ginevro and Marcus Vinicius Veri Teixeira married in Brazil in 2010 and relocated to Canada in 2015. The couple had two children, H (born 2012) and T (born 2019). Following their separation in February 2021 and subsequent divorce in 2023, Ms. Ginevro received Canada Child Benefits in respect of the 2019, 2020, 2021, and 2022 base taxation years. On September 1, 2022, Mr. Teixeira filed a claim for CCB entitlement, asserting that he was primarily responsible for the care and upbringing of both children. This prompted the Minister of National Revenue to determine that Ms. Ginevro was not entitled to CCB, resulting in an overpayment that the Canada Revenue Agency sought to recover.

The statutory framework for shared-custody parent status

The Income Tax Act provides that separated parents who each qualify as "shared-custody parents" may each receive one-half of the available CCB. To qualify, a parent must reside with the qualified dependent either at least 40% of the time in a given month or on an approximately equal basis. The 2021 amendments to the Act formalized the 40% threshold, which had been recognized in prior case law, and introduced the "approximately equal basis" alternative to provide flexibility for circumstances such as illness or vacation schedules that might temporarily reduce a parent's time below 40%.

Court orders governing parenting time

Two orders from the Supreme Court of British Columbia governed the parenting arrangements during the disputed periods. Master Hughes' Order, issued on August 19, 2022, established that the children would reside primarily with Mr. Teixeira effective September 1, 2022, with Ms. Ginevro receiving weekday visits of three to four hours and alternating weekend time. Justice Kent's Final Order, issued on November 20, 2023, continued the arrangement with the children residing with Mr. Teixeira while granting Ms. Ginevro three weekends out of every four and limited weeknight visits. Both parties testified that they generally adhered to these court-ordered schedules with only minor adjustments.

The distinction between parenting time and residence

The Court emphasized that the statutory test focuses on residence, not parenting time. To "reside" with a child requires both parent and child to carry on their normal routines of life in or from a physical structure to which they return on a regularly recurring basis. Ms. Ginevro's weekday visits, during which she and the children spent time at malls, movie theatres, restaurants, and recreational activities, did not constitute residence. The significant distance between Ms. Ginevro's home in Chilliwack and the children's primary residence in Delta—approximately 83 kilometers—made it impractical to travel to her home during three or four-hour visits. The Court declined to exclude school time or time spent with third-party caregivers from Mr. Teixeira's residency calculation, noting that the children's schools, medical practitioners, and extracurricular activities all listed Mr. Teixeira's Delta home as their address, and it was to his home that they returned each weekday.

Ruling and outcome

The appeal was allowed in part, without costs, and referred back to the Minister for reconsideration. The Court determined that Ms. Ginevro qualifies as an eligible individual as a shared-custody parent for the payment periods from March 1, 2021, to August 31, 2022—a concession made by the Respondent at the outset of the hearing. However, for the periods commencing September 1, 2022, and ending June 30, 2024, Ms. Ginevro does not meet the definition of shared-custody parent. The Court calculated that even counting weekend time as residence, Ms. Ginevro resided with the children approximately 26% of the time, which falls substantially below the 40% threshold and cannot constitute residence on an "approximately equal basis." No specific monetary amount was awarded or ordered, as the case concerned benefit eligibility rather than damages.