Random v. The Queen, 2003 TCC 737 (Informal Procedure)

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For the Appellant: The Appellant himself

Agent for the Respondent: Emmanuelle Faulkner (Student-at-law)

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REASONS FOR JUDGMENT

(Delivered orally from the Bench at

Montreal, Quebec, on May 9, 2003)

McArthur J.

[1]      The Minister of National Revenue calculated the Appellant's goods and services tax credit, harmonized sales tax credit and heating expense relief on the determination that in the 1999 and 2000 taxation years, the Appellant was separated. The Minister relied on section 122.5 of the Income Tax Act to calculate the Appellant's credits.

[2]      The position of the Appellant is that his status is married which will include cohabiting. He states that:

I am and have been since July the 1st, 1972, been married to Lyne Marie Sanschagrin and her absence since January 7th, 1975 has not been ratified or sanctioned by any judicial decision, be it at a legal separation or a divorce.

The Minister's position is that the Appellant has to establish that Lyne Sanschagrin was a cohabiting spouse for the 1999 and 2000 taxation years as defined in subsection 122.5(1) as follows:

122.5(1)            The following definitions apply in this section.

"cohabiting spouse or common-law partner" of an individual at any time has the meaning assigned by section 122.6.

And section 122.6 states:

122.6    In this subdivision,

"cohabiting spouse or common-law partner" of an individual at any time means the person who at that time is the individual's spouse or common-law partner and who is not at that time living separate and apart from the individual ...

There is no doubt that the Appellant has been living separate and apart from Lyne Sanschagrin since 1975.

[3]      The GST tax credit is intended to alleviate the burden of GST on lower income taxpayers and it is calculated based on a formula. The credit is claimed by a taxpayer checking the application box on the front of the T1 income tax return when filing it for the particular year. The calculation is different for an applicant who is separated as opposed to married.

[4]      The Appellant was married in 1972 to Lyne Sanschagrin. They have been living separate and apart since 1975 and without a doubt have not cohabited since then. The Appellant indicated in his T1 tax return that he was married. The Minister takes the position that he was separated and in so doing, it reduces the credit for GST and heating expense relief for the Appellant by $279.

[5]      The question before me for the taxation years 1999 and 2000 is should the Appellant to be considered separated or did he have a cohabiting spouse? I have no difficulty in concluding that he meets the common law ordinary meaning of separated. In conclusion, I find the Minister correctly determined the entitlement of the GST and sales tax credit for the Appellant for the 1999 and 2000 taxation years in accordance with section 122.5 of the Act and the appeals are dismissed.

Signed at Ottawa, Canada, this 24th day of November, 2003.