Date:
20021010
Docket:
2002-621-IT-I
BETWEEN:
YVONNE
HENRY,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Reasons
for judgment
Little,
J.T.C.C.
A.
FACTS
[1]
The Appellant was born in Jamaica. The Appellant and her 10-year
old son moved to Canada as landed immigrants in 1993.
[2]
In 1993 the Appellant and her son lived with the Appellant's
sister and brother-in-law in Toronto.
[3]
The Appellant and her son were unable to continue to live with
the Appellant's sister and in 1994-1995 the Appellant and her
son moved into an apartment that was rented by a girlfriend of
the Appellant. The Appellant paid $300.00 per month as her share
of the rent.
[4]
The girlfriend of the Appellant was deported by Canadian
Immigration authorities to Jamaica and the rent of $650.00 per
month for the apartment was more than the Appellant could afford
to pay.
[5]
At the time that the Appellant's girlfriend was deported to
Jamaica the Appellant met Lloyd Dean on a bus. Shortly after the
initial meeting the Appellant asked Mr. Dean if he were
interested in sharing part of the rent of the apartment with her
and Mr. Dean agreed to do so.
[6]
Mr. Dean moved into the apartment with the Appellant in 1995 and
paid for approximately one-half of the rent. In 1996 the
Appellant gave birth to a daughter. Lloyd Dean was the father of
the child.
[7]
The Appellant filed income tax returns for the 1997, 1998 and
1999 taxation years in which she indicated that she was
single.
[8]
From 1996 to 2000 the Appellant received child tax benefits from
the Government of Canada for her son and her daughter. The amount
of the child tax benefits received by the Appellant was based
solely upon the income received by the Appellant.
[9]
Sometime in 1998 an official of the Canada Customs and Revenue
Agency (the "CCRA") talked to the Appellant by
telephone. During this conversation the official asked the
Appellant if she was living with Lloyd Dean. The Appellant
replied, "we live together".
[10] On the 19th
day of May 2000 Child Tax Benefit Notices were issued for the
1996, 1997 and 1998 base years. The net effect of the said
Notices was to combine the Appellant's income with the income
of Lloyd Dean and reduce the amount of the child tax benefits
that the Appellant might claim.
[11] On the 18th
day of August 2000 Child Tax Benefit Notices were issued for the
1998 and 1999 base years. The net effect of the said Notices was
to combine the Appellant's income with the income of Lloyd
Dean and reduce the amount of the child tax benefits that the
Appellant might claim.
[12] As a result
of the Notices issued by the CCRA the Appellant was obliged to
return a major portion of the child tax benefits that she
received for her son and daughter.
[13] The
Appellant maintains that the relationship that she had with Lloyd
Dean was nothing more than a "rent sharing" arrangement
and therefore she should not be required to file her income tax
returns on the basis that she had a common law marriage with
Lloyd Dean.
B.
ISSUE
[14] Did the
Appellant have a common law relationship with Lloyd Dean in the
1997, 1998, 1999 and 2000 taxation years?
C.
ANALYSIS
[15] The
statutory provisions providing for child tax benefits require
that the spouse's income be taken into account. Subsection
252(4) of the Income tax Act (the "Act")
reads as follows:
(4)
Idem. In this Act,
(a) words referring
to a spouse at any time of a taxpayer include the person of the
opposite sex who cohabits at that time with the taxpayer in a
conjugal relationship and
(i) has so
cohabited with the taxpayer throughout a 12-month period ending
before that time, or
(ii) would
be a parent of a child of whom the taxpayer would be a parent, if
this Act were read without reference to paragraph (1)(e)
and subparagraph (2)(a)(iii)
and, for
the purposes of this paragraph, where at any time the taxpayer
and the person cohabit in a conjugal relationship, they shall, at
any particular time after that time, be deemed to be cohabiting
in a conjugal relationship unless they were not cohabiting at the
particular time for a period of at least 90 days that includes
the particular time because of a breakdown of their conjugal
relationship;
(b) references to
marriage shall be read as if a conjugal relationship between 2
individuals who are, because of paragraph (a), spouses of
each other were a marriage;
(c) provisions that
apply to a person who is married apply to a person who is,
because of paragraph (a), a spouse of a taxpayer;
and
(d) provisions that
apply to a person who is unmarried do not apply to a person who
is, because of paragraph (a), a spouse of a
taxpayer.
[16] This
definition requires us to consider the meaning of a
"conjugal relationship" i.e., when can two persons be
considered to be living in a conjugal relationship.
[17] A very
useful analysis of the meaning of a conjugal relationship can be
found in the decision of my colleague Lamarre Proulx, J. in
Sylvie Milot v. The Queen, [1996] 1 C.T.C. 2247. Her
Honour Judge Lamarre Proulx said at page 2250:
In their
book, Introduction to Canadian Family Law, Carswell, 1994,
the Ontario authors Payne and Payne refer to the judgment by
Kurisko J. in Molodowich and Penttinen, 17 R.F.L. (3d) 376. I
cite these authors at pages 38 and 39 because it seems to me they
provide an excellent synthesis of the elements that must apply in
order to determine whether two persons are living in a conjugal
relationship:
Not all
arrangements whereby a man and a woman live together and engage
in sexual activity will suffice to trigger statutory support
rights and obligations. As was observed by Morrison J.A., of the
Nova Scotia Court of Appeal:
I think it
would be fair to say that to establish a common law relationship
there must be some sort of stable relationship which involves not
only sexual activity but a commitment between the parties. It
would normally necessitate living under the same roof with shared
household duties and responsibilities as well as financial
support.
More
specific judicial guidance as to what constitutes cohabitation or
a conjugal or marriage-like relationship is found in a judgment
of the Ontario District Court, wherein Kurisko D.C.J.
identified the following issues as relevant:
(Note: I will refer to the issues cited by Kurisko
D.C.J. and I will insert the comments that were made by the
Appellant when asked about these issues at the trial.)
1.
Shelter
(a)
Did the parties live under the same roof?
Comment
Yes
(b) What
were the sleeping arrangements?
Comment:
The Appellant said, "when we had two bedrooms we basically
had to sleep together. But when we went to the three bedrooms
then obviously I could get a room with my daughter and he had
one, which he spent most of his time in, and my son had the other
one. (Transcript page 111)
(c)
Did anyone else occupy or share the available
accommodation?
Comment:
The Appellant's son and daughter.
2.
Sexual and Personal Behaviour
(a)
Did the parties have sexual relations?
Comment:
The Appellant said that when she had a room by herself sex was
very irregular. The Appellant said that in the later years she
only had sexual relations with Mr. Dean when she was forced to do
so.
(b) Did they
maintain an attitude of fidelity to each other?
Comment:
The Appellant said that Mr. Dean had lady friends but he did not
bring them to the apartment.
(c)
What were their feelings toward each other?
Comment:
The Appellant's answer to this question was
"NIL".
(d) Did they
communicate on a personal level?
Comment:
The Appellant's comment "No".
(e)
Did they eat their meals together?
Comment:
The Appellant said that Mr. Dean would always take his food and
eat his meals in his room and he would not eat with the
family.
(f)
What, it anything, did they do to assist each other with problems
or during illness?
Comment:
The Appellant said that she took care of her own problems and Mr.
Dean never helped her in any way.
(g) Did they
buy gifts for each other on special occasions?
Comment:
The Appellant said with the exception of one Christmas present
which Mr. Dean gave her when he first moved into the apartment in
1995 he never gave her a gift on any occasion.
3.
Services
What was the conduct and habit of the parties in relation
to:
(a)
preparation of meals
Comment:
The Appellant said that she prepared virtually all of the meals.
The Appellant said that Mr. Dean would on infrequent occasions
buy food from a take-out restaurant and bring it to the
apartment.
(b) washing
and mending clothes
Comment:
The Appellant said that she washed and mended her clothes and her
children's clothes and Mr. Dean washed his own
clothes.
(c)
shopping
Comment:
The Appellant testified that she purchased virtually all of the
groceries using her own money. The Appellant said that Mr. Dean
would occasionally purchase beef or chicken but never other
grocery items.
(d)
maintenance
Comment:
The Appellant said that this was her responsibility. She said
that either she or her son would take care of maintenance
problems in the apartment suite or she would telephone the
superintendent. The Appellant said that Mr. Dean did not assist
with any of the maintenance problems.
4.
Social
(a)
Did they participate together or separately in neighbourhood and
community activities?
Comment:
The Appellant answered "separately". The Appellant said
that frequently Mr. Dean would go out by himself.
The Appellant said "He lives his own life and I live
mine". The Appellant also said that Mr. Dean would
frequently take holidays to the United States or elsewhere but he
would never ask the Appellant to accompany him on these
holidays.
During the trial the following exchange occurred:
His
Honour - Is it your view
that you were sharing an apartment as opposed to living as
husband and wife...?
The
Appellant - Sure,
that's all we were doing.
(Transcript
p. 60)
(b) What was
the relationship and conduct of each of them towards members of
their respective families and how did such families behave
towards each other?
Comment:
The Appellant said that after they moved to a three-bedroom
apartment Mr. Dean's children from a previous marriage would
occasionally come to their apartment for dinner. On these
occasions Mr. Dean would usually prepare the
meal.
5.
Societal
What was the attitude and conduct of the community toward each of
them and as a couple?
Comment:
The Appellant said that people in the community knew that we
lived together but they did not see us together. However the
Appellant stated: "He is always going out by himself and I
am always by myself".
The Appellant also said that she went to church but Mr. Dean
never went to church with her.
6.
Support (economic)
(a)
What were the financial arrangements between the parties
regarding the provision of or contribution toward the necessaries
of life (food, clothing, shelter, recreation, etc.)?
Comment:
The Appellant said that Mr. Dean only paid for approximately
one-half of the rent and the cost of a babysitter for his
daughter. The Appellant said that Mr. Dean seldom bought any food
and never bought any clothes for his daughter. The Appellant also
testified that Mr. Dean never bought any furniture for the
apartment and he never paid for any recreation or entertainment
expenses for the Appellant or his daughter. The Appellant also
said that she personally paid the utility bills and other
expenses of operating the apartment.
(b) What
were the arrangements concerning the acquisition and ownership of
property?
Comment:
As noted above the Appellant paid for all of the furniture and
the Appellant did not own an automobile or any other assets. The
Appellant said that the only piece of furniture purchased by Mr.
Dean was a crib for his daughter.
(c)
Was there any special financial arrangement between them which
both agreed would be determinant of their overall
relationship?
Comment:
The Appellant maintained that in her opinion the overall
relationship was basically rent sharing. The Appellant testified
that at the time they started to share the rent she was hopeful
that she could establish a normal relationship with Mr. Dean.
However, during the period that they shared the rent she
determined that this was impossible. The Appellant said she
discovered that Mr. Dean was very mean and cold to her and the
family and in the year 2000 she forced him to leave her
apartment.
7.
Children
The Appellant stated that Mr. Dean was the father of her
daughter.
[18] From an
analysis of the above comments I have concluded that the
Appellant had established a common law relationship with Lloyd
Dean in 1995 which continued in 1996 and 1997. However, I have
concluded from the testimony of the Appellant that this common
law relationship broke down sometime in 1997. Consequently, it
follows that in 1998, 1999 and 2000 the Appellant and Mr. Dean
had nothing more than a rent sharing relationship.
[19] Before
disposing of these appeals there is a technical issue which I
must address. Mr. Ather, counsel for the Respondent, stated that
the Appellant's Notices of Objection for the 1996 and 1997
taxation years were late. Mr. Ather said that the Appellant
missed the final extension deadline for the 1996 and 1997
taxation years by one year and one-half. Mr. Ather said that
with respect to the Notices issued on August 18, 2000 for the
1998 and 1999 taxation years the Appellant missed the deadline by
three or four days.
[20] While the
Tax Court of Canada does not have the authority to extend the
deadline imposed by the Act to enable the Appellant to
file a Notice of Objection within the time specified in the
Act, I urge the Minister to recognize the Appellant's
Notices of Objection to the Notice issued on August 18, 2000 for
the 1998 and 1999 taxation years.
[21] I also urge
the Minister to issue a remission of tax under section 22 of the
Financial Administration Act on the basis that the
appropriate tax assessed against the Appellant for the period
commencing January 1, 1998 to the period ending December 31, 2000
is remitted to the Appellant.
[22] The appeals
will be dismissed on the basis as outlined above subject to the
request that the Minister issue a remission of tax for the 1998,
1999 and 2000 taxation years.
Signed at
Vancouver, British Columbia, this 10th day of October
2002.
J.T.C.C.COURT FILE
NO.:
2002-621(IT)I
STYLE OF
CAUSE:
Yvonne Henry and
Her Majesty
The Queen
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
July 22, 2002
REASONS FOR
JUDGMENT BY: The Honourable Judge L.M.
Little
DATE OF
JUDGMENT:
October 10, 2002
APPEARANCES:
For the
Appellant:
The Appellant herself
Counsel
for the
Respondent:
A'Amer Ather
COUNSEL OF
RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2002-621(IT)I
BETWEEN:
YVONNE
HENRY,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Appeals
heard on July 22, 2002, at Toronto, Ontario, by
the
Honourable Judge L.M. Little
Appearances
For the
Appellant:
The Appellant herself
Counsel
for the
Respondent:
A'Amer Ather
Judgment
The appeals from the assessments made under the Income Tax
Act for the 1995, 1996 and 1997, 1998, 1999 and 2000 taxation
years are dismissed in accordance with the attached Reasons for
Judgment.
Signed at
Vancouver, British Columbia this 10th day of October
2002.
J.T.C.C.
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