Therrien v. Agence du revenu du Québec, 2019 QCCQ 28

In 1991, the taxpayer started to live with the mother of a three-year old daughter (not his). Their common law relationship (“vie commune”) terminated in 2002, but then she returned to live with him (along with V) in 2010 in an attempt at reconciliation. This did not last, but V, who was handicapped chose to remain with him. Whether the taxpayer was entitled to the Quebec equivalent of credits under s. 118.2(1) turned on whether V was a “dependant” of the taxpayer under the Quebec equivalent of s. 118(6), i.e., on whether V was a child of the taxpayer or the taxpayer’s common-law spouse. This in turn required a finding that V was a “child” of the taxpayer under the Quebec equivalent of s. 252(1)(b), which read as follows:

a person who is wholly dependent on the taxpayer for support and of whom the taxpayer has, or immediately before such person attained the age of 19 years did have, in law or in fact, the custody and control

In finding that V satisfied this branch of the definition of “child,” Massol JCQ stated (at paras. 33-36, TaxInterpretations translation):

[T]he provision contemplates two situations:

1. a person wholly dependent on the taxpayer for support and of whom the taxpayer has, in law or in fact, the custody and control;
2. a person wholly dependent on the taxpayer for support and of whom the latter, although not currently having custody, had the custody immediately before such person attained the age of 19 years

The evidence establishes that in 2011 and 2012, V was wholly dependent on Richard Therrien and that he had custody and control of her in fact.

That being the case, the first part of the definition has been satisfied without need to inquire as to whether, previously, he had the custody and control immediately before V attained the age of 19 years.

The definition of “child” does not generally require that the wholly-dependent person be a minor or 19 years of age if, in the year under litigation, the taxpayer has always had the custody and control of that person. The definition of the word “child” applies to alternative situations and does not provide cumulative conditions.

When the handicapped daughter (“V”) of the taxpayer’s ex-common law partner was 22, she started living with the taxpayer. Whether the taxpayer (Therrien) was able to claim medical tax credits for expenses associated with V turned on whether V was a “child” of the taxpayer. The relevant part of the Quebec Taxation Act definition of “child” (which was essentially the same as ITA s. 252(1)(b)) referred to:

a person who is wholly dependent on the taxpayer for support and of whom the taxpayer has, or immediately before such person attained the age of 19 years did have, in law or in fact, the custody and control

In finding that this test of “custody and control … in law or in fact” was satisfied (so that the credits were earned), Massol JCQ stated (at para. 34, TaxInterpretations translation):

The evidence establishes that in 2011 and 2012, V was wholly dependent on Richard Therrien and that he had custody and control of her in fact.