Citation: 2005TCC492
Date: 20050805
Docket: 2003-3271(IT)G
BETWEEN:
RAY HAUSER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Rip J.
[1] Ray Hauser has
appealed income tax assessments for 1997, 1998, 1999, 2000 and 2001 in which
the Minister of National Revenue assessed tax on the basis that Mr. Hauser
was a resident of Canada. Mr. Hauser says that since
August 1, 1997, when he left Canada, he has been a resident of the Bahamas. Mr. Hauser also
questioned the method to be used in calculating his Canadian income tax in the
event that I find he was not a resident of Canada.
[2] During trial,
respondent's counsel acknowledged that Mr. Hauser resided in the Bahamas during the periods in
appeal.
However, counsel declared, he was also a resident of Canada at the same time. The respondent
also stated that, in any event, Mr. Hauser is deemed to have been a resident of
Canada in 1997 and 1999 pursuant to paragraph 250(1)(a) of the Income
Tax Act ("Act"), having sojourned for more than 183 days
in Canada in each of 1997 and 1999.
The Minister does not allege that according to paragraph 250(1)(a), Mr.
Hauser is deemed to have resided in Canada in 1998, 2000 and 2001.
[3] At all relevant
times Mr. Hauser, a Canadian citizen, was a pilot with Air Canada. He was licensed as a
pilot with Transport Canada and belonged to a Canadian chapter of an international
pilot's union. His work base was Pearson International Airport in Toronto.
[4] During the period
1992 to 1995 Mr. Hauser worked in Florida as an Airbus flight instructor
for Air Canada. His family resided
with him in Florida. He had a visa permitting him to work in the United States. Before starting this
posting he sold his home in Cambridge, Ontario.
[5] Mr. Hauser returned
to Canada in 1996. He rented an
apartment in Cambridge, Ontario. He was now divorced. He complained that he did not like
the Canadian winters, they were "too hard", and he could live
anywhere in the world he wanted. He stated that 70 per cent of
Air Canada pilots live outside of Canada and commute to work.
[6] Mr. Hauser
"liked the south". He could not reside in the United States because he did not have
a green card. He
explored some southern areas where he could live and decided to move to
Freeport in the Bahamas. In August 1996, he wrote to Bahamian immigration authorities for a
permit to reside in the Bahamas and he received permission in April 1997. He gave notice
to his landlord on May 27, 1997 that he would vacate the Cambridge apartment and would move
out of the building on July 31, 1997.
[7] In April 1997, Mr.
Hauser remarried. His wife, who was employed by the Ontario government at the time of the
marriage, "understood that we would live in the Bahamas". In June, the Hausers
visited the Bahamas to rent or buy a house. He did not have enough money to buy so he rented
a townhouse which was fully equipped with furniture, cutlery, cooking utensils,
etc. The lease contained an option to purchase the townhouse. Mr. and Mrs.
Hauser left Canada on or about July 27, 1997. They lived in the townhouse in Freeport for three or four
months and then moved to another townhouse for lower rent.
[8] Upon leaving
Canada, Mr. Hauser sent his boat to West Palm Beach, Florida to be fitted for salt
water and then sailed the boat to Freeport. He wrote to the Ontario Health Insurance Plan
("OHIP") authorities to cancel his coverage since he was "moving
out of the country". I note the letter contained only his name; he did not
refer to his OHIP number and did not send his OHIP card to the authorities.
OHIP took no action. He sent a second letter to OHIP on
November 28, 1997 asking that his coverage be cancelled since he has
"been living in the Bahamas since August 1, 1997 and [had] secured out of country
insurance". Again, there was no response from OHIP notwithstanding that
both letters were delivered personally by Mr. Hauser to OHIP's Kitchener office.
Mrs. Hauser's OHIP was cancelled; her letter to OHIP of December 7, 1997
cancelling her OHIP coverage referred to her OHIP number.
[9] Mr. Hauser
purchased a 1986 Honda Prelude automobile in Cambridge on July 9, 1997. He drove the car
to Fort Lauderdale and then shipped it to Freeport, paying the required
duty to the Bahamian authorities. The automobile was insured and registered in
the Bahamas.
[10] The Hausers shipped
their household goods to the Bahamas. These included clothing, stereo, golf clubs,
"anything used on a daily basis" but not furniture. The Cambridge apartment
had "minimal furniture", Mr. Hauser said, because he thought he would
be moving when he returned to Canada in 1996. Some of his and his wife's belongings were put in
storage in Cambridge.
[11] As he was required
to do, Mr. Hauser also advised Air Canada of his new residence in the Bahamas. On October 15, 1997
Mr. Hauser wrote a "To Whom It May Concern"
letter describing his application for immigration to the Bahamas, the renting
of a townhouse in Freeport, the licensing and insurance of his automobile in
the Bahamas, the shipping of personal effects to Freeport, the delivery of his
boat to Freeport, the cancellation of OHIP and Canadian bank accounts, although
he maintained a joint account with his wife at the Royal Bank, as evidence that
he "made every effort to establish ourselves out of country". The
letter does not provide for an addressee, but Mr. Hauser testified the
letter was sent to the Canada Customs and Revenue Agency. The letter does not
indicate Mr. Hauser's social insurance number or his previous address in Canada.
[12] Mr. Hauser opened a
bank account at Barclay's Bank in Freeport with the intention of paying his rent and other
charges by cheque. However, he said, he found the banking fees high and soon
realized that transactions in the Bahamas are in cash. He paid his rent, his utilities,
including internet, in cash. He obtained cash in Miami, Fort Lauderdale and Toronto on his flights to or
from these cities. He allowed the Barclay's bank account to "lapse",
although it was still "open" in January 1999.
[13] Even after Mr. and
Mrs. Hauser left Canada on July 29, 1997 they soon returned. He returned on August 3 because his
work required him to be in Canada. Mrs. Hauser was in Canada on September 28 until October 5,
1997 and again later on in the year.
[14] In any event, Mr.
Hauser was in Canada in 1997 for 16 days in August, nine days in September,
24 days in October, 23 days in November and 27 days in December,
a total of 99 days out of a possible 152 days. Mr. Hauser was in Canada
primarily because his work required him to be in Canada.
[15] In 1998 Mr. Hauser
was in Canada for 215 days, in 2000,
he was in Canada for 184 days and in 2001 he was in Canada for 142 days. He and Mrs. Hauser
spent Christmas holidays in Canada. Mrs. Hauser accompanied him to Canada at other times as well.
[16] The Hausers did have
a joint bank account with the Royal Bank of Canada in Cambridge; this account was not closed. The
Hausers' address on the bank account and on cheques was Mrs. Hauser's mother’s
address in Cambridge. Mr. Hauser's
salary from Air Canada was deposited directly into this bank account. From time to time the
Hausers made cheques payable to Mrs. Hauser's mother from the joint bank account.
The cheques were not for rent, Mrs. Hauser said, but to help her mother out.
Apparently her mother had a problem controlling her personal expenses and was
always short of money.
[17] The Royal Bank
account was also used by the Hausers in 1997 after July 31 to pay sundry
persons, including Bell Canada, Sears, Visa and Diners Club. Mr. Hauser also paid
alimony to his former wife out of this account; some alimony cheques were
signed by Mr. Hauser, others by Mrs. Hauser. Mr. Hauser stated he
required a pager or a cell telephone when he was on reserve and that is the
reason cheques may have been made to Bell Canada. Several credit cards in Mr. Hauser's name had a balance
outstanding and were paid from the Royal Bank account. Cheques signed by
Mrs. Hauser were made payable to the Cambridge Medical Centre and to the Guelph General Hospital as payments for
professional services.
[18] The Hausers
continued making payments out of the Royal Bank account in 1999. Cheques
included at least nine payments of $225 to Mrs. Hauser’s mother. Payments were
also made to Mrs. Hauser's son out of this account. A Cambridge optometrist was also paid from
this account.
[19] Mrs. Hauser testified
that since her husband was away from home most of the time, it was she who
wrote most of the cheques on the Royal Bank account. She had a cheque book in Freeport and would write cheques
to Mr. Hauser's former wife and to her mother if Mr. Hauser was not at home.
She also could have written, she said, cheques to Bell Canada for her mother.
[20] In 1998 the Hausers
continued to draw cheques on the Royal Bank account for payment of credit card
debts, telephone companies as well as to Mrs. Hauser's mother. Car
payments, magazine subscriptions, dental and medical expenses and physiotherapy
accounts were paid out of the Royal Bank account.
[21] The Hausers intended
that their social life be centred in the Bahamas. Mrs. Hauser recalled that
after setting up a "home in Freeport", she started to build social relationships with
families of other Air Canada pilots residing in the area. In
September 1997 the Hausers "checked out golf clubs and restaurants
... trying to find the lay of the land". They joined a local yacht club
and library.
[22] Before Mr. Hauser
moved to the Bahamas, he had his teeth capped in Ontario and after moving to the Bahamas
would make the follow‑up visits to the dentist in Ontario. While residing in Freeport, Mrs. Hauser went to
physicians in Freeport but also went to Guelph, Ontario for medical attention.
[23] Mr. Hauser made
inquiries with British Union Provident Association ("BUPA") for
health coverage. According to a BUPA letter of December 18, 1997 he
was a member of a group, namely Air Canada pilots living offshore, who were
insured by BUPA and he was eligible for the insurance. He testified that he
purchased health insurance from BUPA for himself and Mrs. Hauser.
[24] At the end of 1997,
Mr. Hauser, recalled, he had established a home in the Bahamas. He would work for two weeks and
take two weeks off. He "would not linger in Canada". He was in Canada, he
insisted, to fly for Air Canada.
[25] Mr. Hauser explained
that he flew 78 hours per month "seat in cockpit". The 78 hours do not
include "off time" which means waiting for an airplane wherever he
may be. He usually "picks up" an aircraft in Toronto or Montreal, but could also
"deadhead" flying to the United Kingdom to pick up an aircraft.
[26] The only activity he
had in Canada, Mr. Hauser said, was
taking his daughter to breakfast or his parents to lunch before flights. He was
usually in Toronto 24 hours before he was
scheduled to fly; this was a requirement of Air Canada. If he had two days between
flights, he would stay in Canada rather than going to the Bahamas. He reckoned a trip
between Freeport and Toronto to be 12 hours.
[27] When in Toronto
overnight, Mr. Hauser would stay at his mother‑in‑law's home or at
his parents' home in Cambridge. If his wife was with him, they would stay with friends or
family. Mrs. Hauser would occasionally accompany her husband on flights to Europe. She also would visit Canada to see her mother,
"not to linger". Since she did not like storms, she would spend much
of the hurricane season in Canada.
[28] From August 1997 to the end of 1998 Mr. Hauser was a
junior captain on reserve for long international flights. He explained that as
a reserve captain one can be given two hour's notice to get an aircraft.
Therefore, he had to be within two hours of Pearson
International Airport. In December 1998 he moved to a smaller aircraft to
become a senior captain. A senior captain is entitled to first choice of
available flights; he could then spend more time in the Bahamas.
Theoretically a pilot could be a senior captain of a smaller aircraft but
junior captain of a large aircraft. A pilot obtains seniority as more senior
pilots retire. When he was on reserve he would pass the time at his
mother-in-law's apartment in Cambridge. Similarly, when he had a flight out of Pearson Airport
he would spend the previous day at his mother-in-law's.
[29] Mr. Hauser would usually sleep in the bedroom at his
mother-in-law's home. His brother-in-law, William Ray, moved into the apartment
a little later. Mrs. Hauser said her mother "often" slept on the
couch. Her brother slept in the other bedroom. Mrs. Hauser and Mr. Ray
confirmed Mr. Hauser's evidence that he kept "seasonal" clothing in
the apartment as well as a uniform. When Air Canada shipped pilot's uniforms to Mr.
Hauser in 1998, the clothing was addressed to him at his mother-in-law's
apartment. He believed that Air Canada would not ship a uniform outside Canada.
[30] Except for five days
in Freeport, Mr. Hauser spent all
of December 1999 in Canada, flying for four days and on reserve for the balance. He
"could've" spent Christmas at his sister-in-law's home. He believed
that he and Mrs. Hauser celebrated Christmas every year in Cambridge unless he was flying.
[31] Mr. Hauser claims
that during 1999 he carried on no activities in Canada; he was only here for work.
Similarly, he said, he did nothing in Canada in 2000 and 2001. He emphasized over and over the
commitment he made to reside in the Bahamas during the years in issue:
out-of-Canada health insurance, annual renewals of Bahamas residence permit, Bahamas library card, etc. He
joined the Bahamas Air Rescue Association, an organization that requires pilots
and other to rescue people at sea. He estimated that he flew three times with
the Association.
[32] In 2000, or earlier,
Mr. Hauser thought he might become manager of a real estate project in Ontario. He and others intended
to purchase real estate to build town houses “as an investment”. He purchased a
Honda automobile "as an investment" to permit him to drive on a
regular basis to the intended property. However, the potential investors failed
to secure financing and the project died. As a result, he sold the Honda.
[33] The Honda was
registered to Mr. Hauser at the address of his mother-in-law in Cambridge. He stated the address
on the registration should have been "care of" his
mother-in-law. Mr. Hauser had use of an older automobile to drive between
Cambridge and Pearson International Airport. Mrs. Hauser
had use of a Toyota Celica whenever she was in Cambridge.
[34] Mr. Hauser's mailing
address was his mother‑in‑law's address in Cambridge. He complained that it “took too
long” for mail to get to the Bahamas or it would get lost. Bahamas mail was not reliable. “Anything
requiring efficiency” would be sent to his mother-in-law's home. He would
collect his mail when he was in Toronto.
[35] There were no
changes to the Hauser's lifestyle during the first five months of 2001. On June
27, 2001 Mr. and Mrs. Hauser executed their wills in Freeport. In June or July, Mrs. Hauser
decided she wished to become a nurse and applied to study to be a respiratory
therapist at Daytona Beach Community College in Daytona Beach, Florida. She was accepted for the term
starting January 2002.
[36] Unfortunately Mrs.
Hauser became ill and could not attend school until August 2002. The
Hauser's found a home in Daytona Beach "for whenever Karen wanted to start
school". Mr. Hauser applied to renew his Florida driver's licence which he had before
1997.
[37] Respondent's counsel
produced a document in which Mr. Hauser provided information to the
Canadian Imperial Bank of Commerce in North Bay for a loan to finance the real estate project. His
address on this document is his mother‑in‑law's address in Cambridge. According to the form
Mr. Hauser's rent was $800. Mr. Hauser said the document was prepared by a
broker in North Bay. He acknowledged his
signature on the form; he said he could have signed the form in blank. He did
not know the reason.
[38] Respondent's counsel
also produced a letter of July 27, 1997 from Manulife Financial, the
insurer of Air Canada's dental plan. Enclosed with the letter were copies of cheques paid to
Mr. Hauser for dental services from April 12, 1996 to March 5, 1998.
Manulife issued five cheques after August 1, 1997. Also produced were
various copies of records of prescriptions issued to Mrs. Hauser by Canadian
pharmacies and invoices for physiotherapy services in Canada and optician
services in Canada, both before and after August 1, 1997; four invoices were issued
after August 1, 1997.
[39] Evidence was also adduced as to how many days Mr. Hauser
spent in Canada during the years in
appeal. Mr. Hauser
produced handmade calendars for 1997, 1998, 1999, 2000, 2001, 2002, 2003 and
part of 2004. Each day is colour‑coded on the calendars to indicate when
Mr. Hauser was flying, when he was ill, displaced, on vacation, training,
as well as other days he was in and out of Canada. The origin and destination of the flights are stated on most of the days
on the calendars indicating that he was flying. Only the days are indicated,
the actual hours of arrival in Canada or
departure from Canada are not set out and are not before
me.
[40] In making his calculations of
time spent in Canada, Mr. Hauser appears to have included only days he
described as "lingering" in Canada. He did not consider the days he was compelled to be in Canada, for example, to work either as a
pilot or in training, on reserve, or spending a day or more in Canada prior to flying. Mr. Hauser estimated
that he spent 20 days in Canada during 1997 (after July 29), 47 days in Canada during 1998, 77 days in Canada
during 1999, 93 days in Canada during
2000 and 75 days in Canada during 2001. On the other hand,
the respondent considered the appellant present in Canada for a day if he spent
any part of that day in Canada.
[41] The Interpretation Act does not define the word
"day". The computation of time is determined by sections 26 and 28 of
the Interpretation Act. Subsections 27(2), (3) and (4) explain
that:
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27. (2) Where there is
a reference to a number of days, not expressed to be clear days, between two
events, in calculating that number of days the day on which the first event
happens is excluded and the day on which the second event happens is
included.
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27. (2) Si le délai est exprimé en jours
entre deux événements, sans qu'il soit précisé qu'il s'agit de jours francs,
seul compte le jour où survient le second événement.
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(3)
Where a time is expressed to begin or end at, on or with a specified day, or
to continue to or until a specified day, the time includes that day.
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(3) Si le
délai doit commencer ou se terminer un jour déterminé ou courir jusqu'à un
jour déterminé, ce jour compte.
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(4) Si le
délai suit un jour déterminé, ce jour ne compte pas.
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[42] Paragraph 250(1)(a)
of the Act provides that for purposes of the Act:
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a person shall, subject to subsection (2), be
deemed to have been resident in Canada throughout a
taxation year if the person
(a) sojourned in Canada in the year for a period of, or periods the total of which is, 183 days
or more;
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une personne est réputée, sous réserve du paragraphe (2), avoir résidé
au Canada tout au long d'une année d'imposition
si :
a) elle a séjourné au Canada au cours de l'année pendant une période ou
des périodes dont l'ensemble est de 183 jours ou plus;
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[43] In Thomson v. M.N.R.
Estey J. explained that one "'sojourns' at a place where he unusually,
casually or intermittently visits or stops".
[44] Section 27 of the Interpretation Act provides
little guidance in calculating the days Mr. Hauser was in Canada during the years in appeal or
sojourned in Canada during 1997 and 1999. I have
calculated the days the appellant was in Canada during each of the years in appeal. There are reported cases that
consider a day to be nothing less than 24 hours. However,
the number of hours Mr. Hauser was in Canada on the first and last day of
any period he spent in Canada is not
before me. To be fair to both parties, I have not included the day, or part
thereof, that Mr. Hauser entered Canada in any period; I have included the day Mr. Hauser exited Canada in any period.
I do not believe that it is reasonable in a situation such as this to conclude
that a day is "the interval of light between two successive nights"
or the time between "sunrise and sunset"
or "the whole of any part of a period of 24 hours from midnight to
midnight".
Based on the information included in his calendars I have concluded Mr. Hauser
was present in Canada in each year on the following number
of days:
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Year
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Days
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1997 (after July 29)
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99
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1998
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215
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1999
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113
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2000
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184
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2001
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142
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[45] The Crown admits Mr. Hauser took up residence in the Bahamas in August 1997. The Crown,
however, denies that just because he became a resident of the Bahamas, he
ceased to reside in Canada at the end of July 1997.
[46] The Income Tax Act does not define the words
"resident" or "reside". For example, subsection 250(3)
provides that:
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In this Act, a reference
to a person resident in Canada includes a person who was at the relevant time
ordinarily resident in Canada.
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(3) Dans la présente loi, la mention d'une personne résidant au Canada
vise aussi une personne qui, au moment considéré, résidait habituellement au
Canada.
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[47] The words "resident" and "ordinarily
resident" should receive the meaning ascribed to them by common usage.
[48] Paragraph 250(1)(a) of the Act deems a person
to be resident of Canada throughout the taxation year if the person:
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a person shall, subject to subsection (2), be
deemed to have been resident in Canada throughout a
taxation year if the person
(a) sojourned in Canada in the year for a period of, or periods the total of which is, 183 days
or more;
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une personne est réputée, sous réserve du paragraphe (2), avoir résidé
au Canada tout au long d'une année d'imposition
si :
a) elle a séjourné au Canada au cours de l'année pendant une période ou
des périodes dont l'ensemble est de 183 jours ou plus;
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[49] Paragraph 250(1)(a) need not be considered in
these reasons unless I find that Mr. Hauser did not otherwise reside in Canada in any of the relevant years.
[50] The issue in these appeals, it may be well to repeat,
is not whether Mr. Hauser was resident or even ordinarily resident in the Bahamas in 1997, 1998, 1999, 2000 and
2001. The Crown has admitted that he was. The evidence before me confirms that
he resided in the Bahamas during this period. The issue, of
course, is whether Mr. Hauser was resident in Canada as well as in the Bahamas in the years in appeal.
[51] In Thomson v. M.N.R., Rand J. explained, that:
... in the
different situations of so-called "permanent residence",
"temporary residence", "ordinary residence",
"principal residence" and the like, the adjectives do not affect
the fact that there is in all cases residence; and that quality is chiefly
a matter of the degree to which a person in mind and fact settles into or
maintains or centralizes his ordinary mode of living with its accessories in
social relations, interests and conveniences at or in the place in question. It
may be limited in time from the outset, or it may be indefinite, or so far as
it is thought of, unlimited. On the lower level, the expressions involving
residence should be distinguished, as I think they are in ordinary speech, from
the field of "stay" or "visit". (Emphasis added)
[52] So what I have to decide is whether or not Mr. Hauser was
resident in Canada in one or more of the years in
appeal. As Cartwright J. said in Beament v. M.N.R.":
the decision as to the place or places in which a
person is resident must turn on the facts of the particular case.
[53] Mahoney J. listed several factors that may be material
in determining a question of fact of fiscal residence:
a. past
and present habits of life;
b. regularity and length of visits in
the jurisdiction asserting residence;
c.
ties within that jurisdiction;
d.
ties elsewhere;
e. permanence
or otherwise of purposes of stay abroad.
The
matter of ties within the jurisdiction asserting residence and elsewhere runs
the gamut of an individual's connections and commitments: property and
investment, employment, family, business, cultural and social are examples,
again not purporting to be exhaustive. Not all factors will necessarily be
material to every case. They must be considered in the light of the basic
premises that everyone must have a fiscal residence somewhere and that it is
quite possible for an individual to be simultaneously resident in more than one
place for tax purposes.
[54] Appellant’s counsel argued
that his client’s actions were sufficient to sever his residence in Canada at the end of July 1997: he
cancelled his OHIP coverage, he notified people that he no longer resided in
Canada, he gave up his apartment lease in Cambridge, he took up residence in the Bahamas. He attended at his
mother-in-law’s residence frequently, but he was not living there, either when
he left Canada or during the times he was in Canada to fly from Pearson Airport.
[55] The real issue, counsel
suggested, was not whether his client was a common law resident of Canada but rather whether he sojourned
in Canada in the relevant years for more
than 183 days. Mr. Binavince, appellant’s counsel, cited several cases in
support of his position that during the years in appeal Mr. Hauser did not
sojourn in Canada more than 183 days nor was he resident of Canada: Kadrie v. Canada,
Wassick v. Canada,
Kallos v. M.N.R.,
Calvano v. Canada, The Queen v. Reeder,
as well as Thomson v. M.N.R.,
and Schujahn v. M.N.R..
[56] One of appellant’s arguments, if I understood it
correctly, was that once he gave up his residence in Cambridge, he ceased to
have a home in Canada. When he was sleeping at his
mother-in-law’s apartment he was not living at the apartment. In Thomson,
Rand J. explained that as far as income tax legislation is concerned, there
is an assumption that everyone at all times has a residence. The residence
need not be
[…]
a
home or a particular place of abode or even a shelter. He may sleep in the
open. It is important only to ascertain the spatial bounds within which he
spends his life or to which his ordered or customary living is related.
[…]
[57] Whenever Mr. Hauser was in Canada to perform his employment
responsibilities, which was frequent, regular and necessary, he stayed at his
mother-in-law’s apartment. He kept clothing at the apartment and he used the
address of the apartment for mail and banking purposes. That he may or may not
have paid rent to her is not that significant. This mother-in-law’s address
was also used for other purposes, whether at his own behest or not, for
example, when he applied for a loan and when he registered the Honda. I do not
give much weight to Mr. Hauser’s explanation that the address should have been
“care of” his mother-in-law. In fact the address he used for many purposes was
an address in Canada.
[58] Canada was a magnet
that attracted the Hausers. After they set up residence in the Bahamas both of Mr. and Mrs. Hauser, and
particularly Mr. Hauser, continued to have a presence in Canada. Mr. Hauser spent over a third of
a year in Canada in each year. Air Canada required
Mr. Hauser to be in Canada to fly airplanes; he reported to
work at Pearson Airport and other airports in Canada. Most of his flights left from
and returned to Pearson; much of his training was at Pearson. Pearson Airport was part of the routine of life. Mr.
Hauser’s presence in Canada during the years in appeal was not
occasional, casual, deviatory, intermittent or transitory. He was in Canada in great part because he had to
be, to earn a living.
[59] The Hausers also came to Canada when there were problems or family celebrations. Mrs.
Hauser went to Guelph for medical attention, she was in
Canada during the hurricane season and she was in Canada to spend Christmas with family. Canada was Mr. and Mrs. Hauser’s comfort
zone at least until 2002 when they moved to Florida.
[60] Mr. Hauser used the words
"linger"
or "lingering" to explain that his presence in Canada, most times during the years in
appeal, was not voluntary but was required by his employment. The fact that
one's employment compels the person to be in Canada does not lead to the
conclusion that one does not reside in Canada. In fact, most often the opposite is true. Many multinational corporations
send their nationals to live and work in Canada; they may or may not like it here, but they may reside here while working
here. They are not lingering here while they are employed here. Similarly, just
because Mr. Hauser believes he was not lingering in Canada most of the time he was in Canada
during the years in appeal does not protect him from the possibility of
residing in Canada.
[61] Mr. Hauser never divorced himself from Canada. There were just too many
attachments. He may have intended to sever coverage with OHIP, ship personal
effects and household goods to Freeport but
there were more important attachments to Canada that continued and were very significant: employment, a place to sleep,
banking, for example. That he had a regular routine in Canada is confirmed by his willingness in
2000, notwithstanding Canadian winters, to take up management of a real estate
project.
[62] Mr. Hauser’s leaving Canada in 1997 is not dissimilar from a child leaving the family
and moving into his or her own apartment, but on many evenings the child
returns to the family home for dinner and on most weekends the child is at the
family home “hanging around”. It cannot be said in such circumstances that the
child has given up his parents’ residence.
[63] I find Mr. Hauser was resident in Canada during taxation years 1997, 1998,
1999, 2000 and 2001. I therefore need not consider whether he is deemed to
have been resident in Canada pursuant to paragraph 250(1)(a)
of the Act in any of these years.
[64] The appeals are dismissed with costs.
Signed at Ottawa, Canada, this 5th day of August, 2005.
“Gerald J. Rip”
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