Claiming Legal Fees (Case Law) For Tax Deduction in Child Support Matters

[involveddad75]

Mess I think you took my post wrong.
The question to OrleansLawyer was a tax court question from a tax perspective with regards to claiming legal fees on your taxes, and how the federal government has created an unfair system when it comes to claiming legal fees on taxes.

It had nothing to do with arguments to be used in family court, or the child support guidelines. Anyone going into family court and arguing for access for financial gain is going to lose.
And I think the history of my previous posts on family court support this position.

But I do believe in equality and that I should be able to claim a portion of my legal fees for my case on my taxes, as a shared parent.
My post was about how others trying to get access in family court could possibility get around the limits of tax laws and tax court, so that they could claim a portion of their legal fees from a tax perspective.

As for the Case Law
CanLii.org: 2012 TCC 92 (CanLII)

The arguement in this case was for income retention,
had the argument been about getting child support from the other side by way of an offset, then perhaps they might have won.

[Mess]

Some say that some fathers fight for access to reduce child support, if you accept that then you also have to accept that some mothers withhold access so they can collect more child support.

This is a good point that others have made.

This is a double standard. To allow one parent to claim legal fees (for trying to get child support) and not allow the same legal fees to be claimed in defending the claim for child support.

Now you are losing track. Child support is the right of the child, and it is an automatic entitlement. A case where a parent is seeking support is one where the money is already owed, and is not being paid.

In my view any access parent who is fighting to get more access could argue that they were fighting for their share of the child support.

No, and this would set back the case for shared parenting by a couple of decades if parties, generally fathers, were going to court and going to the media with the argument that they want more access to the children so that they could pay less support. This would not fly in legal terms, but worse, it would justify the arguments of feminist groups, groups who lobby the governmnent very strongly.

From a legal standpoint you have it backwards. There is no entitlement to support until access is already in place. You argue for access, you reason that it is in the best interest of the child, and then you seek support on that basis. If you do it the reverse, you are simply displaying a motive of greed.

Up until now the case law has been worded as a reduction in child support which is not allowed. Payor trying to get 40% access to reduce their child support payments.

Can you cite this law which words it as a "reduction" because I have never read it. Please read the Family Law Act - Child Support Guidelines Section 9. It is some litigants who often erroneously try to argue for a "reduction," and even then in most cases when they are whining on the internet, not when they preparing their court arguments.

An access parent could argue that they are simply trying to collect their portion of the child support payments...

Honestly I think this is nonsense. There is no support whatsoever in law for this. You could not go to court and make this fly. It would require a complete revision of child support legislation.

Look, there are two ways to look at this. "I am going to court to change the law." This method DOES NOT WORK. The law does not work that way, except in minds of "Teapartyers" who rage against judges making laws. Judges do not make laws. They make interpretations, having to take into account superior law like the Charter, and take into account the will of Parliament and the intent of public policy.

The other method, for the ordinary Canadian, is to lobby your MP and MPP. In the case of the Child Support Guidelines, this is both a provincial and federal jurisdicition, so you have to get all provinces, all territories, and the federal government on the same side. Good luck with that.

[Links17]

The reason they let recipients claim it and not payors is because it actually normally makes no difference since recipients have such low income -the conspiracy behind the law!

[wannabehappy1978]

in this past year deductions didn't help much. i'm a contractor with 9000 income and after business expenses 6000 something. cuz.low income, was. no.benefit to claim it. got fulltime job the other day so I ill claim it later

[involveddad75]

I have spoken to this lawyer and yes the payor was able to deduct legal fees, but it was a shared parenting with offset amounts.

OrleansLawyer quick question from a tax court perspective:
Claiming Legal Fees in General:
The problem is the government is that it has placed this 40% mark that makes parent fight, but you can't go into court and argue receiver should be paying child support, you have to fight for access and then child support will continue. This puts issues into place that don't come out in court. As soon as you have a financial incentive to fight for more or less access you get people lying court. I would say that most family case are about money. At least from one side.
Some say that some fathers fight for access to reduce child support, if you accept that then you also have to accept that some mothers withhold access so they can collect more child support.

This is a double standard. To allow one parent to claim legal fees (for trying to get child support) and not allow the same legal fees to be claimed in defending the claim for child support.

In my view any access parent who is fighting to get more access could argue that they were fighting for their share of the child support. Both parents have a responsibility to provide for their children. So if a parent is fighting for 2% more access, going from 38% to 40% then they should be able to claim that they were fighting for child support from the primary parent. As such the claim for legal fees on taxes should be allowed.

Up until now the case law has been worded as a reduction in child support which is not allowed. Payor trying to get 40% access to reduce their child support payments.

What needs to be argued is a different approach. This would be for access parents of which I am not. I am a shared parent.

An access parent could argue that they are simply trying to collect their portion of the child support payments. That it is their position that they have and will continue to pay full table amount of child support. But that there is no child support, to support the children when they are with the access parent, as such they are fighting for the 2% increase to begin the process of collecting child support from the ex. byway of an offset amount. Worded in this way it is collecting not reducing child support payments as such should be allowed for tax purposes.

What do you think?

[OrleansLawyer]

I suspect the accountant is referencing:
ARCHIVED - (Consolidated), Legal and Accounting Fees

[HappyMomma]

I think in Canada only recipients can claim legal expenses...

No, that's what the original post was about - the payor claimed the expenses.

[Links17]

for fees relating to custody, child support and spousal support...

[Links17]

I think in Canada only recipients can claim legal expenses...

[HappyMomma]

plz explain ? didn't claim 2000 bucks

Did you read over this thread? Was there something different about your case that makes you ineligible?

[wannabehappy1978]

plz explain ? didn't claim 2000 bucks

[HappyMomma]

asked my tax lady if I could claim legal costs in obtaining child support and she said no. its just a personal expense

Get a new tax lady - she's wrong.

[wannabehappy1978]

asked my tax lady if I could claim legal costs in obtaining child support and she said no. its just a personal expense

[Mess]

If you were a business you would count the money when it was earned, not when it was paid. A comparison would also be your last paycheque for the year usually is issued in January, but the money is counted for December. That being said, CRA is not going to complain if you are using "cash accounting" and reporting it when received, as long as it is reported.

[golf.fanatic]

Thanks for your messages Mess. Just one clarification, are your required to report the income for the costs award in the year awarded or as they are received? So from your example, judge awards costs of $30k in 2013 but you don't actually receive any payment from the other party toward those costs. Surely you wouldn't have to claim it as income???