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)(c)
Administrative Policy
3 November 2015 T.I. 2015-0584261E5 F - Blood relationship - step brother
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(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."
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, Docket: 1999-1853-IT-G (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, Docket: 2001-1539-IT-I (TCC)
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).