MEMORANDUM
SEP 21 1988
TO Assessing & Enquiries Directorate
P. McNally Director Enquiries & Taxpayer Assistance
FROM Specialty Rulings Directorate R.B. Day 957-2136
SUBJECT: XXXX YS # 8207018
We are writing in reply to your memorandum of September 8, 1988, wherein you requested our views as to whether or not a cousin of the taxpayer's wife could meet the "extended meaning of child" definition under paragraph 252(1)(b) for purposes of paragraph 109(1)(d) and subsection 109(6) and which would enable the taxpayer to claim the disability deduction under paragraph 110(1)(e.1)
As we understand it, XXXX and the taxpayer's wife are cousins who grew up together in the same household.
XXXX who suffers from Muscular Dystrophy, was previously cared for by the taxpayer's mother-in-law. In June, 1985 the taxpayer's mother-in-law died and, as a result of a promise made by the taxpayer's wife to her mother, XXXX became the responsibility of the taxpayer and his wife.
The taxpayer claimed the cousin as a dependent in his 1986 taxation year and the exemption was allowed. The taxpayer's claim for the 1987 taxation year has, however, been denied.
XXXX
We have reviewed the facts in this case in conjunction with the relevant provisions in the Income Tax Act. It is our opinion that XXXX does not meet the "extended meaning of child" definition under paragraph 252(1)(b) and as a result, the taxpayer would not be able to claim an exemption for her under paragraph 109(1)(d) and subsection 109(6). The reasons for our views are as follows:
In order for a person to meet the "extended meaning of child" definition in paragraph 252(1)(b) that person must:
a) be wholly dependent upon the taxpayer for support, and
b) with respect to that person, the taxpayer has, or did have immediately before the person reached age 21, in law or in fact custody and control of that person.
We reviewed various legal definitions of custody, control, or both custody and control. This review revealed that, in law, one adult person cannot be said to be in the custody and control of another adult regardless of any physical or medical incapacity.
Since XXXX does not meet the "extended meaning of child" definition and the wording in paragraph 109(1)(d) and subsection 109(6) does not provide for the support of a cousin, the taxpayer is not entitled to claim a personal exemption in respect of his wife's cousin.
XXXX
Director Small Business and General Division Specialty Rulings Directorate Legislative and Intergovernmental Affairs Branch