New Jersey spouse/child moving back to British Columbia

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QUESTION:
Hi there!
After having lived here with my husband for 3 years -in New Jersey, I am coming back to Canada (BC) with our child.
My husband has been here for 4 years.  He will continue to work here in NJ.
While here for the past 3 years we have been claiming US residency and have not paid any Cdn taxes.  By the same token, we do have a joint Cdn checking account where the monies are coming from an early retirement that my husband has taken (amt.is approx. $1100.00 per month).
Our daughter who is 15 years old has approx. $35000.00 being held in trust with the Alberta Public Trustee until she attains majority.
How is all this going to impact our tax situation?
Thank you very much for your help - greatly appreciate it.
XXXXXXXXX
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David Ingram Replies
A lot of it depends upon intent and marital situation.
The Canadian Income Tax CRA (Canada Revenue Agency) will want to tax your husband as a Canadian because his wife and child are living in Canada and he has a home available to him in both countries and he is a Canadian.  
Your husband should have been paying tax to Canada of 15% on his early retirement pension and that money should have been reported on his US tax return as well.
Your husband should correct his Canadian situation for the last three or four years and send Canada 15% of the pension under Article XVIII of the US / Canada Income Tax convention. Then he would amend your joint US 1040 returns to report the pension and claim credit for the 15% paid to Canada.  
He should also inform the pension payer that he is a non-resident and have them deduct 15% non-resident withholding tax and have them remit it to Canada.  It is cleaner that way.
You should close your joint bank account in Canada.  If you are coming back, you can have your own account then.  He can send you money but the pension should not be deposited to that account.  The pension should be mailed to him in the USA or deposited to a US bank account if he is a non-resident and wishes to remain a non-resident.
Now that is for the past and what you should have been doing and should do now to make it right.
When you come back to Canada, it complicates the issue again. If your husband wants to come back and does not intend to stay n the US and you do not want to ever go back, he will be taxable in Canada on his world income.  On the other hand, if you are coming back because the marriage is not working well, and he wants to stay and you do not want to stay or do not want to say for the time being because you can not work, he is not necessarily taxable in Canada. 
He will have to file a tax return but will be a factual resident of Canada which means that he will be paying tax on his Canadian Income (the pension) and reporting his world income but will remove all the US income on line 256 of his tax return by claiming the benefits of Article IV of the US Canada Income Tax treaty because he wants to stay there and has applied for a green card, etc.
If the family plan is for him to get the green card and then you will move back because you can work, he will not be taxable in Canada. 
It is tricky.  Go to www.centa.com and read the US/Canada Taxation section.  Pay attention the Wolf Bergelt case in particular.
You and your husband should likely buy an hour of my time with a phone consultation BEFORE you move back.  i.e. both of you on the phone at the same time.  I charge $350.00 Cdn for this but you would get a lot of benefit.
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