Citation: 2008TCC314
Date: 20080523
Docket: 2006-303(IT)G
BETWEEN:
BRENT HARRISON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
(Delivered
orally from the Bench on May 6, 2008,
in Vancouver, British Columbia.)
Boyle, J.
[1]
These are my reasons
for judgment in this morning’s case involving Mr. Brent Harrison of Sussex, British Columbia. The issue to be determined is
whether Mr. Harrison was a cohabiting common-law partner of the woman with
whom he has shared a number of homes over a 20-year period and to this day,
Ms. McIntyre, in the years 1995 to 1999 during which she received
refundable Canada Child Tax Benefits in excess of what she was entitled to.
[2]
Stripped to its barest
terms, the question is simply whether Mr. Harrison and Ms. McIntyre
lived together in a conjugal relationship.
[3]
Mr. Harrison has been
assessed by Canada Revenue Agency pursuant to subsection 160.1(2.1) of the Income
Tax Act for approximately $7,200 of CCTB overpayments paid to
Ms. McIntyre. This provision provides that the spouse or common-law
partner who was cohabiting with a person is jointly responsible for any CCTB
benefits received by that person in excess of the amount that person was
actually entitled to. The apparent purpose of this joint liability to repay the
overpayments appears to reflect a presumption that the spouse or common-law
partner who did not receive the payments nonetheless enjoyed the benefit of those monies being received by
his or her household, hence the need for cohabiting in the years received
whether they are spouses or common-law partners.
[4]
There is no doubt in my
mind on these facts or under the law that Mr. Harrison lived together with
Ms. McIntyre in a conjugal relationship since she first moved into his
home with three of her children almost 20 years ago. This is exactly the type
of case this provision is aimed at. While the reason for the overpayments of
CTBs being made to Ms. McIntyre was not in evidence, Mr. Harrison did
testify he reported himself as single on his tax returns. Since Child Tax
Benefits are calculated in part by reference to household income, I can surmise
Mr. Harrison’s own actions may have contributed, at least in part, to the
overpayments for which he is now being assessed.
[5]
The term “cohabiting in a conjugal
relationship” is not defined in the Act for these purposes. Its meaning
is well developed, nonetheless, in the law. An extensive listing of
considerations is set out in the Molodowich v. Penttinen decision, which
both counsel referred to. Mr. Harrison’s counsel based the evidence he
introduced and his written outline of argument he submitted along the lines of
the Molodowich criteria.
[6]
The role of the Molodowich
characteristics in determining whether or not a conjugal relationship exists was
addressed by the Supreme Court of Canada in M. v. H. The Supreme
Court said that the characteristics of shared shelter, sexual and personal
behaviour, services, social activities, economic support, children and societal
perception may be present in varying degrees and are not all necessary. Common-law
couples cannot escape because they do not fit precisely the “traditional
marital model”. Even sexual relationships are not a requirement, according to
the Supreme Court. The weight to be given the Molodowich factors will
vary widely and almost infinitely. The approaches of the courts must be
flexible and reflect the reality that the relationships of all couples, whether
married or common-law, will vary widely.
[7]
Mr. Harrison met
Ms. McIntyre almost 20 years ago. Their relationship began as a romantic
one and quickly developed into a sexual one as well. Ms. McIntyre and
three of her young children moved into Mr. Harrison’s house and the couple
shared a bedroom. Since then, they have continuously lived together in the same
house, although they are now on their fourth house. Their first three homes
were rented. In none of these homes did Mr. Harrison have a separate
bedroom. While he often slept in the
basement rec room in the years in question, he did not have a bed there, much
less a bedroom. Their current and fourth house was bought after the years in
question. It is owned jointly by Mr. Harrison with one of
Ms. McIntyre’s adult daughters who also resides in the home. Mr. Harrison
has a separate room in this home.
[8]
Mr. Harrison has remained
sexually faithful to Ms. McIntyre throughout. While their incidence of
sexual relations declined over time, especially in their late 40s and 50s, they
had a sexual relationship throughout the period 1995 to 1999. Mr. Harrison
guesses they last had sex over a year ago. Mr. Harrison described a
healthy relationship with Ms. McIntyre’s three children who lived with
them and particularly so with the two youngest daughters who lived with them in
the years in question. He attended their school events and would drive them to
their activities. They continue to this day to exchange gifts on birthdays,
Christmas and like events.
[9]
Mr. Harrison supported
Ms. McIntyre with advice and guidance when she was in financial difficulties
and facing her bankruptcy. He attended her father’s funeral with her, and she
and her children went with him to visit his ailing mother. They attended her
children’s weddings. Mr. Harrison and Ms. McIntyre went out together with other couples for New Year’s, for
dinners and the like. They went to Mr. Harrison’s horse association
banquets together at times. They exchanged gifts and do things for each other. Overall,
it sounds like a healthy, compassionate and supporting relationship.
[10]
In 1997, Ms. McIntyre’s
lawyer in her family law issues with her ex-husband described
Ms. McIntyre’s relationship with Mr. Harrison as a romantic
involvement under the same roof.
[11]
Ms. McIntyre did most of the
shopping and prepared the meals, which they would eat together when schedules
permitted. Ms. McIntyre and the girls took care of most of the inside
housework, while Mr. Harrison was responsible for the outside work. The
only exceptions appear to be that Mr. Harrison has always done his own
laundry and only his own laundry, and Ms. McIntyre and the girls did the
outdoor gardening on their 65-acre lot.
[12]
The couple has shared
expenses on an informal basis throughout, and had a joint chequing account for
a two-year period. Shelter, household expenses and supplies were shared roughly
one-third by Mr. Harrison, one-third for Ms. McIntyre, and one-third
for her children, which Ms. McIntyre and her ex-husband covered. This
changed somewhat after the years in question to reflect the new joint home
ownership arrangement with Ms. McIntyre’s adult live-in daughter. How
strictly this was followed I cannot tell, since Mr. Harrison claims to
have given Ms. McIntyre cash. There was no evidence of who paid for whose
clothes, cars, vacations, etc. There clearly was no strict division of
expenses, and payment for their living expenditures. Ms. McIntyre took
care of the household finances, and Mr. Harrison gave her cash with which
to do that.
[13]
The couple took vacations
together with the children. This included a trip to Disneyland in the years in question. They also went camping together in the early
years. In later years, they have taken trips to Las Vegas.
[14]
In the British Columbia
court filings involving access to Ms. McIntyre’s children by their father,
Mr. Harrison is described as her common-law spouse on numerous occasions. Their
relationship is described as a marital relationship. Ms. McIntyre’s lawyer
described Mr. Harrison as her common-law husband.
[15]
The above are the material
facts and my findings. This was not a close case. Mr. Harrison’s position
regarding what he himself called their “joint household” was unreasonable. This
was black and white. The facts of this case are somewhat similar to this Court’s 1999
decision in Lavoie. They are also somewhat similar to this Court’s 2000
decision in Sanford. Both of these cases were upheld by the
Federal Court of Appeal. In Sanford, Justice Mogan referred to the old
cliché about walking and quacking like a duck. It is equally apposite here. That
cliché was in fact in my mind while listening to Mr. Harrison’s testimony.
[16]
When Mr. Harrison’s
counsel was asked which aspects of the Molodowich considerations did not
point to a conjugal relationship, he identified three. Firstly, Mr. Harrison
always did his own laundry and only his own laundry. Secondly, the couple had a
joint bank account for only two years. And thirdly, the friend of Mr. Harrison
who testified said he did not regard the couple’s relationship the same as the
relationship he had with his wife. None of these three give me any cause for pause.
The first two must be looked at in the context of the overall circumstances of
the parties and, either alone or in context, are far less than sufficient to
show the absence of a conjugal relationship. The third is simply irrelevant,
since there is no reason for Mr. Graves’ marriage to serve as the
threshold of a conjugal relationship.
[17]
Mr. Harrison, when
asked to describe
his relationship, suggested it was much like a “friends with benefits”
arrangement. He said they were cohabiting, but it was not marriage-like, in part
because he doesn’t like labels. He referred to it elsewhere in his testimony as
“our joint household”. I will resist trying to decide when “friends with
benefits” arrangements constitute cohabiting in a conjugal relationship. Canadian
family relationships and personal relationships change and reflect endless
different choices that work for those involved. We are clearly beyond the
traditional marital model. In Mr. Harrison’s case, he more properly should
have at least said his was a “roommates with benefits sharing a single bedroom”
arrangement in the years in question. On the totality of evidence in his case,
the relationship he shares with Ms. McIntyre is exactly what the concept
of cohabiting in a conjugal relationship is trying to describe.
[18]
I must make some
comments about credibility in my summary of facts and my findings of fact
above. Mr. Harrison’s testimony was filled with “probablys”, “maybes” and
“might haves”. For example, he said:
·
“I have kept in contact
with her” over the years.
·
“It is basically a
sharing of rental costs.”
·
When asked if he shared
a bedroom with Ms. McIntyre in their first one-bedroom home, he said, “I
believe so.”
·
In the second home, he
said, “I would
imagine I shared a bedroom with Debbie.”
·
He said, “It's possible
we went out together.”
·
In their third home, he
said, “I believe I was probably sharing a bedroom with Debbie.”
·
On sexual relations in
their third home, during the years in question, “We probably would have visited
from time to time”.
·
It was “likely on occasion”
they went out socially.
·
They ate out together
“but not in a dating fashion”.
·
They had sexual
relationships but he “doesn't recall the incidence” and they “dwindled to a
non-event”.
·
“She has been known to
prepare a meal that we would sit and eat.”
·
He “believes” she had
declared bankruptcy.
·
“I believe she may have
used the same accounting firm” as he did for her taxes.
·
“It is possible” the
kids were in that age range.
·
“I think it is probably
fair comment” it started as a romantic relationship.
·
“I believe for the most
part” she took care of the finances.
In short, I found Mr. Harrison to be a witness
who did not answer completely or accurately, but spun his answers to suit him. He
stretched things with a noticeable degree of glibness and of awkwardness. His
responses to questions made it clear he has a less than adequate concept of
truthfulness required and expected in life. His rationalizations had to be
further developed after they were challenged. I do not accept his evidence as a
complete or wholly accurate description of his relationship with
Ms. McIntyre.
[19]
Further,
Mr. Harrison’s description of their relationship was not corroborated by
any evidence from Ms. McIntyre or her children, who are now adults.
Mr. Harrison’s counsel indicated he had issued a subpoena to Ms. McIntyre
but understood from Mr. Harrison that she would not be attending,
notwithstanding the subpoena. I offered to adjourn to allow him to have her
testify under further order if necessary. That offer was declined. In these circumstances,
not only has Mr. Harrison failed to satisfy the onus of proof on him by
calling apparently available, relevant witnesses to testify, but I make the
adverse inference that, if Ms. McIntyre or her daughters had given
testimony, it would not have supported Mr. Harrison's version in material
respects.
[20]
The Canada Child Tax
Benefit is an important and valued social programme. It is also very costly for
Canadians. The law sets out who qualifies and for what amount. Those who
receive amounts that they are not entitled to are rightly pursued by the Canada
Revenue Agency. Similarly, the law says cohabiting common-law partners are
jointly responsible to repay excess benefits paid out. CRA is also right to
pursue people like Mr. Harrison. If not, Canadians might not only
lose faith in the CRA as our tax administrator, but may wrongly doubt the need
for the Child Tax Benefit programme for our deserving fellow Canadians.
[21]
I will be signing
judgment in favour of the Crown and will be awarding costs to the Crown payable
by Mr. Harrison. This was an open-and-shut case. All of the time and costs
and effort involved in this general procedure trial could have been avoided. Instead,
there have been productions, discoveries, and a day in court. In these
circumstances, my judgment will provide for costs on a Class B basis in our Tariff.
Signed at Ottawa, Canada, this 23rd day of May 2008.
"Patrick Boyle"
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