Section 252

Child

Administrative Policy

4 August 1995 T.I. 950271 (C.T.O. "Adoption in Fact - Siblings")

Before indicating that there is insufficient information to determine whether the brother of an individual could be considered to be the individual's child, RC indicated that "some of the factors to consider in determining whether a certain relationship between a person and a child constitute an adoption in fact are the actual control in custody, exercise of parental care and responsibility on a continuing basis, dependency, and proximity to each other including the right of determining the residence, protection, care (physical, mental and moral), education, and religion."

17 March 1994 Memorandum 940252 (C.T.O. "Child Tax Credit - Supporting Person")

Discussion of whether a child is the "child" of a common-law spouse who is not the natural parent of the child. RC states that "in general terms, custody involves the right of determining the residence, protection, care (physical, mental and moral), education, and religion of a minor child" and that "the courts will not recognize a de facto adoption unless the 'adoptive parent' exercise parental care and guidance on a continuing basis".

Subsection 252(1) - Extended meaning of “child”

Paragraph 252(1)(b)

See Also

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

handicapped adult child satisfied test even though didn't move in until age 22

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.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 118 - Subsection 118(6) adult daughter of the taxpayer’s ex-common law partner was the taxpayer’s “child” 158

Paragraph 252(1)(c)

Administrative Policy

3 November 2015 External T.I. 2015-0584261E5 F - Blood relationship - step brother

step brothers are related

Mr. X is the son of Ms. A and Mr. ABC, and Mr. Y is the son of Mr. B (who is the common-law partner of Ms. A) and of Ms. DEF (who is unrelated to Mr. ABC). In finding that X and Y are related, CRA stated (TaxInterpretations translation):

Paragraph 252(1)(c) expands the meaning of the term “child” by providing that the child of a spouse or common-law partner of a taxpayer is considered a child of the taxpayer… . Subparagraph 252(2)(a)(i)…provides that a parent of a taxpayer includes a person whose child the taxpayer is. Thus…Mr. X and Mr. Y would be the children of Mr. B, and Mr. B would be the father of Mr. X and Mr. Y…[and] Mr. X and Mr. Y would be the children of Ms. A, and Ms. A would be the mother of Mr. X and Mr. Y. Consequently, Mr. X and Mr. Y would have the same father and mother for purposes of the Act. … [O]ne would be the brother of the other for purposes of the Act.

Subsection 252(2)

Paragraph 252(2)(a)

Administrative Policy

17 July 2012 Internal T.I. 2012-0454701I7 F - Arrière-arrière-grand-père

parent in s. 110.6 context includes great-grandparent but not great-great-grandparent

In finding that for purposes of s. 110.6(1) the “parent” of a taxpayer holding a now-inactive farm property included the great-grandfather of the taxpayer but not his great-great-grandfather of the taxpayer, CRA noted that the s. 110.6(1) definition of “child” referred to the definition of “child” in s. 70(1), and then stated:

In interpreting the meaning of the term "parent" and in determining whether that term may include a reference to the term "great-great-grandparent", subsection 70(10) should be read in conjunction with subsection 252(2).

However, under paragraph 252(2)(a), the reference to "parent" includes a person whose child the taxpayer is. Since subsection 70(10) equates the word "child" with "a child of the taxpayer’s child” and “a child of the taxpayer’s child’s child” and subsections 110.6(1) and 110.6(1.3) refer to the word "parent", all references to the "parent" of a taxpayer would be, by analogy, a reference to the "grandparent" and "great-grandparent" of the taxpayer.

It would be impossible for us to extend this definition more broadly to include "great-great-grandparent" as this would be contrary to the intention of the legislator.

Words and Phrases
parent
Locations of other summaries Wordcount
Tax Topics - Income Tax Act - 101-110 - Section 110.6 - Subsection 110.6(1) - Share of the Capital Stock of a Family Farm or Fishing Corporation - Paragraph (a) - Subparagraph (a)(iii) farm use by great-great-grandparent did not qualify the property, cf. great-grandparent 217

Subsection 252(3)

See Also

Re McFarland (1987), 39 DLR (4th) 703 (Ont. H.C.)

"[I]n general usage 'spouse' means a person to whom one is bound by a legal marriage."

Words and Phrases
spouse

Subsection 252(4)

Cases

Rosenberg v. Attorney General of Canada, 98 DTC 6286 (Ont CA)

In responding to a submission that Revenue Canada should not have failed to register a pension plan that would have accorded benefits to same-sex spouses, Abella J.A. found (at p. 6293):

"The appropriate remedy under s. 52 of the Constitution Act, 1982, is, in my view, to read the words 'or the same sex' into the definition of 'spouse' in s. 252(4) of the Income Tax Act for the purpose of the registration of pension plans and amendments to registered pension plans."

See Also

Sanford v. The Queen, 2001 DTC 2662 (TCC)

In finding that the man with whom the appellant lived and who was the father of her child was a cohabiting spouse for purposes of s. 122.6, Mogan TCJ referred to a definition of "conjugal" as "of or belonging to marriage or the married state" and stated (at p. 2666) that the status of the appellant and him "as a woman and man cohabiting in an intimate relationship, and bearing and raising a daughter, is 'of or belonging to' the married state and 'suitable or appropriate to' the married state" and that their status had the badges of the married state even if they personally rejected the concept of marriage.

Hunter v. The Queen, 2001 DTC 907 (TCC) (Informal Procedure)

S.252(4), which deemed common-law spouses to be spouses, stated that it applied after 1992. The taxpayer had separated from his common-law spouse in February 1992 but commenced paying her support pursuant to a written agreement made in 1994. Bowman A.C.J. found that the preferable interpretation was that s. 252(4) prospectively attributed to an event that existed prior to its effective date (the common-law relationship that existed up to February 1992) a legal effect on events that occurred after its effective date (the making of post-1994 support payments under the 1994 agreement).

Administrative Policy

16 February 1994 Memorandum 940385 (C.T.O. "Definition of Spouse")

Where a separation of less than 90 days takes place within a period of 12 continuous months throughout which the couple must cohabit in a conjugal relationship in order to establish a spousal relationship, that short period of separation will form part of the 12 continuous months.

10 February 1994 T.I. 940224 (C.T.O. "Definition of Spouse")

Where a couple who had been living together continuously for under 12 months have a child, their date of marital status will not be considered to have changed until the date of birth. Similarly, where they commenced living together, they were not considered to be common-law spouses until 12 months later.

2 February 1994 Memorandum 940059 (C.T.O. "Definition of Spouse")

Once a common-law relationship has been severed (by not cohabiting for at least 90 days because of a breakdown in the relationship) the common-law marriage will be considered to have been re-established the moment cohabitation has resumed, i.e., there is no need for the couple to satisfy another 12-month test period.

Once a separation has occurred, they were considered to be common-law spouses until the expiration of the 90-day period.

Income Tax Technical News, No. 2, December 30, 1994

Discussion of when a couple are deemed to be spouses under s. 252(4)(a).