Originally posted by Links17
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Claiming Legal Fees (Case Law) For Tax Deduction in Child Support Matters
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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?
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Originally posted by involveddad75 View PostSome 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.
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.
An access parent could argue that they are simply trying to collect their portion of the child support payments...
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.
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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.
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Originally posted by Links17 View PostThe 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!
If I run a business and am having problems collecting a payment and have to take someone to court to get a payment for services I have done for them. Then that is a business expense and can be written off, and thus legal fees for enforcing income can be written off.
That's how I understand why legal fees for child support can be claimed.
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question to OrleansLawyer was a tax court question
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.
Was there an effort to secure support, and was it made in good faith?
CanLII - 2010 TCC 209 (CanLII)
However, the claim must be legitimate. Simply throwing legal fees under that heading (even if pursued for support, if the claim was frivolous) will be unlikely to succeed:
CanLII - 2011 TCC 427 (CanLII)
DISCLAIMER:
Everything said in this, and any other, message is not intended to be taken as legal advice. I do not hold myself out to be a lawyer, adult or literate. Any resemblance this or any other message may have to legal advice or common sense is entirely coincidental. This message was generated through the combination of a monkey hitting a keyboard with a rock and advanced spell check software.
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My experience with line 232 of the T1 is that I had received a letter from my family lawyer around tax time. I was totally unaware of this claim since I was the payor, however the explaination was that technically in a shared custody arrangement both are considered to be payors, it is the difference that is calculated for the offset.
The letter stated the Income Tax Act and the amounts to obtain child support of over $7000 each for the 2011 and 2012 tax years. (2 seperate letters for each year, but I had claimed them together for 2012). Eligible amount to claim was stated as being approximately 20% of those amounts, so for both years they had totaled over $2900.
Having work related legal benefits of $500 per year, I had to recalculate my claim by taking $1000 off of the total amount for the 2 years and then taking 20% of that amount for my final claim amount.
Being honest with CRA only helps you down the road and at the end of the day the $2700 credit was better than a kick in pants.
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Originally posted by involveddad75 View PostMess I think you took my post wrong..
You want to argue with the tax law regarding a legal suit to reduce cs payments by an access parent. This is wrong for the reasons I stated.
An analogy, you file a suit with the cell phone company because you believe you are being overcharged. You then want to go to tax court and argue that you may deduct the legal fees as though you were seeking unpaid wages from the cell company.
Seeking a reduction in payment is NOT the same as seeking payment of what you are owed. This is explicitly covered in CRA explanatory pages.
You may seek a deduction for legal fees that are incurred to receive wages that are owed, payments from clients for professional services, or unpaid child support payments. This all stems from the same principle.
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Originally posted by now i see the moon View PostDoes anyone have experience of being a net payor in a shared custody regime and having been denied their deduction for legal fees? If this is true is it because both parents are technically "payors" of child support and therefore neither can claim legal fees?
I claimed 20% of all my legal fees (the portion related to child support) and the CRA accepted them.
Claimed in tax years (2011, 2012, 2013)
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