7 October 1997 External T.I. 9712535 - DEFINITION OF CHILD

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the Department.

Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.

Principal Issues:

Whether a child in the custody and control of a grandparent is considered to be a child of that grandparent for purposes of paragraphs 56(1)(b) and 60(b) of the Act.

Position:

Child of the grandparent.

Reasons:

By virtue of paragraph 252(1)(b) of the Act which sets out the extended meaning of "a child of the taxpayer" to include a person (the child) who is wholly dependent on the taxpayer (the grandparent) and of whom the taxpayer has, or immediately before the child attained the age of 19 years had, in law and in fact, the custody and control of that child.

971253
XXXXXXXXXX A.M. Brake
(613) 957-2133

Attention: XXXXXXXXXX

October 7, 1997

Dear Sirs:

Re: Pre-May 1, 1997 Child Support

This is in reply to your letters of May 9, July 14 and August 25, 1997, regarding a situation where the natural parent of a child was ordered by the court to pay child support to the grandparent of the child. The grandparent was awarded custody and control of the child who is under 19 years of age. The issue is whether the child support payments to the grandparent are deductible in the same manner as such payments to a spouse would be deductible under a pre - May 1, 1997 court order. There has not been a "commencement day", as defined by subsection 56.1(4) of the Income Tax Act (the "Act").

In our view, by virtue of the definition of "child" in paragraph 252(1)(b) of the Act, the child will be considered to be a child of the grandparent because the grandparent will have legal custody of the child who will be wholly dependent on the grandparent for support. Thus, payments made by the natural parent to the grandparent for the support of the child will be deductible in accordance with paragraph 60(b) (formerly 60(c)) of the Act. Similarly, the recipient grandparent will be required to include the child support amounts in income under paragraph 56(1)(b) (formerly under paragraph 56(1)(c)) of the Act.

We trust our comments will be of assistance to you.

Yours truly,

John F Oulton
for Director
Business and Publications Division
Income Tax Rulings and
Interpretations Directorate
Policy and Legislation Branch