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Citation: 2003TCC435
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Date: 20030911
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Docket: 2003-342(IT)I
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BETWEEN:
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MANFRED STENGEL,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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____________________________________________________________________
Appearances:
For the
Appellant:
The Appellant himself
Counsel
for the
Respondent:
Jasmine Sidhu
____________________________________________________________________
REASONS FOR JUDGMENT
(Delivered orally from the Bench at Vancouver,
British Columbia, on
Monday, May 12, 2003 and revised as to style and
syntax at
Ottawa, Canada on September 12, 2003.)
Margeson, J.T.C.C.
[1] The matter before the Court
at this time for decision is that of Manfred Stengel and
Her Majesty The Queen, 2003-342(IT)I.
[2] The question before the
Court is whether or not the Appellant, in computing his income
tax for the 1997, 1998 and 1999 taxation years was entitled to
claim the deductions of $26,000, $26,000 and $25,800
respectively, which were claimed on the basis of being support
payments.
[3] There is before the Court an
abundance of evidence with respect to the matters at issue: (1)
were the payments made? (2) if they were made, do they qualify as
support payments on the basis that the Appellant was living
separate and apart from his ex-wife, (hereinafter referred to as
"Darlene") within the meaning of the Income Tax
Act ("Act") during the years 1997, 1998 and
1999, as required?
[4] The Appellant has accepted
the majority of the presumptions relied upon by the Minister of
National Revenue ("Minister") in the Reply to the
Notice of Appeal ("Reply"). At page 2, subparagraph
7(a) was accepted, (b) was accepted and (c) was accepted. With
respect to subparagraph 7(d), "the Appellant and the Spouse
did not live separate and apart during the 1997, 1998 and 1999
taxation years;" that is contested and the Court will have
to decide that on the basis of the evidence.
[5] Subparagraph (e) was
accepted, (f) was accepted, (g) was accepted, (h) was accepted,
(i) was disputed by the Appellant, (j) was accepted, (k) was
accepted with the exception that the Appellant said that they did
not obtain joint Visa credit cards subsequent to the 1991 year.
What he provided Darlene was a supplementary card.
[6] Subparagraph (l) was
accepted, (m) was accepted subject to whatever meaning the Court
has to attach to the word "involved". He assumed that
she could make money. He would not have to pay support down the
road, but she did not make money. So to that extent he said that
he was still involved in her financial affairs. That is what he
meant by being involved.
[7] With respect to (n), that
the Appellant and Darlene vacationed in Hawaii together during
the 1999 taxation year, he said that they had an agreement to go
there with the children. He felt that it might be his last time
to be able to go with them because there was some problem with
his health at that time.
[8] Subparagraph (o) was
accepted, with the further rider that the allegation was that the
Appellant's Visa credit card was used to make purchases in
Hawaii during the period that his family vacationed there in the
2000 taxation year. He said that he was not there and the
evidence bears that out. Nobody is arguing that he was, but the
evidence also makes it quite clear that the credit card was used
by Darlene for something other than paying for the scuba-diving
lessons. It was used in that year for at least a purchase at the
duty free shop on the way out and there does not seem to be any
argument about that. So other than that, subparagraph (o) is
accepted, and the Court is satisfied the evidence indicates what
I have said.
[9] Subparagraph (p), the
Appellant disagreed with that. He said that he did make such
payments. With respect to (q), the Appellant and his spouse
shared social, economic, financial and family living arrangements
during 1997, 1998 and 1999. He said that the only social events
that they shared were with respect to the children. They had
Christmas and Thanksgiving dinner together. They did not have
Mother's Day dinner together.
[10] With respect to financial and
economic matters, he agreed that they did share. He paid extra
amounts for Darlene. He agreed with the family living
arrangements but he said that he lived in the back and she lived
in the front part of the house. That was confirmed by his son,
who also testified.
[11] He said that most of the accounts
that were in their joint names had not been used since 1991. He
did not think that he had put any money into those accounts since
1991. With respect to the lines of credit, he said they were
established before 1991, they were left in effect and they still
are in effect. He had two lines of credit.
[12] In elaborating on (m), he assumed
that Darlene would make money off the restaurant and he would not
have to pay her support down the road. In
cross-examination, he agreed that he continued to live in
the principal residence throughout the whole period. They shared
facilities. They shared meals. Although he lived in the back part
of the house and she in the front, they did have a shared
kitchen.
[13] There was one house, which was a
gift from his mother to himself and Darlene. They both agreed to
take care of the mother as a result of the transfer of the
property. She did grocery shopping and laundry for him and for
the family and for herself as well. She is still on his benefits
from his work and she is designated as his beneficiary.
[14] He referred to the properties
that were purchased before 1991. The one at 15677 Marine Drive is
behind his house. Darlene's residence is in the same house.
There is another small house, an older house, at the back and
they rented that out to someone else. They handled the rental
property together. She was entitled to one-half of the
benefits from it.
[15] In 1997, 1998 and 1999 she
contributed to the rental property. She collected the rent, she
wrote receipts, she made purchases for the rental property. He
collected the rent from her for the rental property. When she
collected the rent he took that into account when he was making
payments to her. He said "I cannot show that I gave her the
money". He did not have any receipts. He did not have any
paper record, so to speak, of paying the money in issue to
Darlene, and that is a problem for him. There was no trail of
documents to show that the money actually changed hands. We are
talking about a large amount of money, $90,000 over a period of
three years.
[16] It was pointed out to him that with
respect to his rental accounts that the money went into the bank
and there must have been a record there but he was still unable
to come up with any records to show that he made the payments
that he alleged.
[17] In 1991, there was the gift of
property. In 1999, there was a joint purchase of two properties.
They were both mortgaged. They were all in joint tenancy, or at
least in joint names, but he said that he told them at the bank
that he was separated. As far as he was concerned, there are
separate accounts with respect to the mortgages, although the
evidence of the witness that was called on behalf of the Minister
seemed to indicate otherwise. The payments for the mortgage came
out of a single account.
[18] In 1997, 1998 and 1999 he had
about $600,000 in mortgage debt. He agreed that Darlene made no
money, or at least made little money. The evidence seemed to
indicate that at best she might have had about $10,000 a year in
income. He said: "I paid her share of the mortgages".
He was unable to show that the money had switched hands from
himself to Darlene for the rent.
[19] He said that he did not indicate
on the Visa card application that he was married. He disagreed
with that allegation. He was shown the application and he
explained that, being that she had not signed it, that it may
just have been the bank's conclusion that they were still
married and were not living separate and apart.
[20] Between 1997, 1998 and 1999, he
did not think there were any transactions on the joint bank
accounts. He admitted that he claimed all costs related to the
rental of the properties. He was involved in Darlene's
restaurant. He fixed the hot water at one time but he would not
fix the roof. He never saw the financial documents for the
restaurant business until a short time ago. He assumed that she
was making money but then he found out that she was not.
[21] He also held the insurance
premium on her restaurant property. The documents referred to by
the witness called on behalf of the Minister showed quite clearly
that he was listed as the owner or the operator of the
restaurant. The only conclusion that the Court can come to from
those documents is that this was the insurance on the restaurant,
it was shown that it was being operated by him and the payments
for the insurance came out of an account into which he put the
funds. He admitted himself that he held the insurance policy and
he said that he paid the premiums out of his own account. The
telephones were in his name but his mother's telephone was in
his name also. He stated that the accounts were paid by other
people, not by him.
[22] Then he suggested that the
restaurant policy was not in his name and that he did not know
whether he paid the premium or not. But the evidence made it
quite clear, as far as the Court is concerned, that he was paying
the premium on that restaurant business.
[23] He said that he knew that he had
to rebut the presumptions in the Reply when he came here today
but he said he had some advice on earlier occasions and was not
quite sure he understood from the advice that he got what he had
to do. He was suggesting that he might have had more
documentation here today had he understood more completely what
the matter was all about.
[24] In redirect he said the telephone
bill comes in his name but he does not pay for that.
[25] He called Kevin Stengel to give
evidence. He is his son who lives in White Rock. He is an
indoor gardener. He lived with the Appellant for five years. The
Appellant and Darlene do not talk often. His mother lives in the
front and the father is in the back. They went to Hawaii and his
mother and father had two different rooms. The mother does not
participate in sports and the father does not pay the telephone
bills although they are in his name.
[26] Two cars are his and the
remainder is in the father's name. The siblings pay for the
expenses for the cars. He pays room and board when he is working
and the Appellant and Darlene are supporting him other than that.
Nine times out of ten his mother gives him shopping money.
[27] In cross-examination he said that
he did not know a lot about the financial arrangements between
the Appellant and Darlene.
[28] The Respondent called William
Quon, who is an auditor. He was familiar with this matter. It
came about as a result of a screening. The initial lead led them
to try and verify that alimony money and support payments claimed
were made, if they were made to Darlene and if they were
deductible in accordance with the definition of separate and
apart in the statute.
[29] They conducted an audit of the
restaurant, "Down by the Bay Café". There was a
marginal profit from that business. During the audit, Darlene
referred to "her husband". They took whatever steps
they could to obtain documents to enable them to determine
whether or not there was a true separation. They also wanted to
determine if the amounts were actually paid.
[30] The Appellant claimed to them
that the payments were made in cash. There was no corroboration
for any of this. He went into the question of ownership of
property before and after 1991 and put into evidence the
documents, which showed joint financing for all of the
properties. They researched their own database and were also able
to come up with property documentation. He submitted
Exhibits R-1 to R-6, which showed, as the other
evidence did, that the properties were held in joint ownership,
that they were jointly mortgaged, that there was joint liability
on the indebtedness and that there was a considerable amount of
indebtedness during the years in issue. These documents were all
indicative of joint ownership and joint indebtedness with respect
to all of these properties.
[31] He was asked if there were any
records to show who made the mortgage payments with respect to
Exhibits R-3 and R-4. He said that he went to Canada Trust and he
obtained a client profile. Mr. Stengel said that all mortgages
came out of the Appellant's accounts. He was the only person
on the account. His money made the payments. Darlene only had
minimal income of about $10,000 per year. The Appellant also
admitted that there were joint lines of credit and that there was
a joint Visa card in the sense that the wife had a companion
card, as it is called.
[32] The line of credit with Canada
Trust was established jointly. He reviewed the Visa application
and the account information.
[33] Exhibit R-6 was put in by
consent. This was in relation to the Visa. The Appellant himself
was the applicant; Darlene was a supplementary cardholder. He
interviewed the Appellant, made notes and created a summary of
these notes of the meeting on the same day that he had the
meeting, which was held on June 7, 2001, the day he
interviewed the Appellant. He was allowed to refer to these notes
for the purpose of refreshing his memory.
[34] He asked the Appellant about
vacationing with his family and was told that the last time was
in 1992. He reviewed his Visa statements for the Scotiabank and
they indicated that two credit card numbers were used in Hawaii.
The Appellant had told him that no one else had used his credit
cards. Then he said that he referred him to the 1999 accounts and
that he was on vacation in Hawaii. Then he checked the Visa
statements and said they showed that they were not only used for
the scuba-diving lessons for which the Appellant had last used
his credit card but there was also an entry for his credit card
in the year 2000 for the duty free shop in Hawaii.
[35] He was asked about Darlene's
business and what the documents showed with respect to the
Appellant's participation in it. He had originally said that
he had nothing to do with the business but the insurance policy
for the restaurant showed otherwise. Exhibit R-7 was filed by
consent, it was the insurance policy. This had to do with the
"Down by the Bay Café". It indicates that the
Appellant himself was operating the "Down by the Bay
Café".
[36] The Appellant answered
"no" to the question of whether or not he was going to
file for a divorce. He asked him to whom his assets would go in
the event that he had no will and he said the Appellant told him
that he had a will and he wanted everything to go to Darlene.
[37] The Appellant himself in his
testimony suggested that that was not the way the conversation
went. What he suggested to the interviewer was that he did not
need a will because he wanted everything to go to Darlene in any
event.
[38] He was referred to the 15677
Marine Drive property and he said there was a residence and a
restaurant there. Darlene claimed to pay the rent but he could
not confirm that. This witness said that the indication was that
Darlene had to pay the rent on the property but he was unable to
confirm that this was the case.
[39] 51677 Marine Drive was rented.
The rental receipts were issued by Darlene. Exhibit R-8 was
allowed to come into evidence by consent. This was issued and
supplied by Darlene. The one on October 1st, 1999 was issued by
him. Then the one for the house for $500 dated October 25, 1999
was signed by her. There were expense receipts signed by her and
claimed by him.
[40] Exhibit R-9 was put into evidence
by consent. This was a rental contract for sanding equipment.
This was signed by Darlene yet claimed by the Appellant in his
returns. He claimed all rental income. Her income was minimal. In
1997, 1998 and 1999, the losses of the Appellant were $28,000,
$1,138 positive, and $15,000 loss in 1999. The Appellant earned
$80,000 per year. Darlene earned roughly $10,000 per year.
[41] Based on his income and based
upon the information that the witness had about the income of the
Appellant during the years in question, the Appellant could not
have made the payments that he said he did and have any money
left over to live on. That was the conclusion that he came to
based upon the documents that he reviewed.
[42] In cross-examination, the
Appellant questioned the witness and he said that he did the
calculations in his head initially. But then he was questioned
further and he ultimately testified that, based upon the taxable
income claimed of $64,000, the Appellant could not have paid the
support of $26,000 that he was talking about in any year and have
had any money to live on.
[43] The Appellant had not told him
that when he went to the bank he had indicated that they were
married. As far as he was concerned, they were separated. The
Respondent tendered the exhibits and rested.
[44] There was no rebuttal
evidence.
[45] In argument, counsel for the
Respondent said that there were two issues; first, whether the
Appellant can deduct the three amounts that he is claiming in
1997, 1998, and 1999 on the basis of paragraph 60(b) of
the Act, which is set out at Tab 4 of the
Respondent's Book of Authorities. In order for him to do so,
the Court must be satisfied that he was living separate and apart
from Darlene. Secondly, the Court must be satisfied that the
amounts that he seeks to deduct were, indeed, paid. There was no
proof that these amounts were paid. The Appellant has failed in
that regard.
[46] With respect to the separate and
apart issues, she referred to various cases. These cases are
quite significant and are of some considerable help to the Court
today. She referred to Kelner v. R., [1996] 1 C.T.C. 2687
(T.C.C.), which was a decision of Judge Bowman of the Tax Court
of Canada. As far as she was concerned, even though that case may
have been in favour of the Appellant's position here, the
requirements that the Court sets out have not been met in this
particular case and they do not favour the Appellant's
position. At page 2694 Judge Bowman said:
The words "separate and
apart" have been used for many years in divorce legislation
and in matrimonial litigation and I must give them a meaning that
is consonant with that given them in provincial courts dealing
with matrimonial matters.
Counsel took issue with that conclusion.
Judge Bowman continued:
...They imply not only physical separation but a
breakdown of the matrimonial consortium. Those elements are
unquestionably present here.
[47] In that case the Court was
satisfied that the elements that were required were present.
There was certainly a breakdown of the marriage as found. There
was clearly both a physical and a psychological separation even
though the Court found that there were two or three points that
were inconsistent with the finding that they were living separate
and apart, such as the same telephone, attended family functions
and the Appellant continuing to pay the household expenses for
food for his wife.
[48] Those factors were taken into
account and when the learned trial judge looked at them in
toto, he was satisfied that they were living separate and
apart. But those are factors which the Court must look at
individually in each case and every case has to be decided on its
own facts.
[49] Here, there was no psychological
separation, there was not really any physical separation and so
the case is not of great assistance to the Appellant. Counsel
also referred to Rangurala v. R., [2000] 4 C.T.C. 2430
(T.C.C.) which was a Tax Court of Canada decision by Judge
Campbell, who was relying to a certain extent upon Kelner,
supra. Campbell J. also referred to Macmillan-Dekker v.
Dekker, (August 4, 2000), Doc. 99-FA-8392 (Ont.
S.C.J.), where the learned judge said at page 2436:
I conclude that there is no single, static model of a
conjugal relationship, nor of marriage. Rather, there are a
cluster of factors which reflect the diversity of conjugal and
marriage relationships that exist in modern Canadian society.
Each case must be examined in light of its own unique objective
facts.
In her decision Judge Campbell said:
In defining the meaning of
"separate and apart", Bowman, T.C.J. quoted
Holland, J. in Cooper v. Cooper, (1972), 10 R.F.L.
184 (Ont. H.C.) at p. 187 as follows:
Certainly spouses living under the same roof may well in fact
be living separate and apart from each other. The problem has
often been considered in actions brought under s. 4(1)(e)(i)
of the Divorce Act and, generally speaking, a finding that the
parties were living separate and apart from each other has been
made where the following circumstances were present:
(i)
Spouses occupying separate bedrooms.
(ii)
Absence of sexual relations.
(iii)
Little, if any, communication between spouses.
(iv)
Wife performing no domestic services for husband.
(v)
Eating meals separately.
(vi)
No social activities together.
In that particular case the Judge was obviously satisfied that
when she considered those factors, the parties were living
separate and apart.
[50] The factors that have been
established here do not speak so positively in the
Appellant's favour because they are quite different from the
factors established in the case before Campbell, J.
[51] Counsel for the Respondent said
that in Rangurala, supra, the parties had a
separation agreement. The wife took him off of her benefits. She
changed the beneficiary on some of her assets. They never sat
together for meals. She lived completely separate in her own part
of her house. There were no domestic services provided by her and
there was no joint financing. This was a far different case from
the case at bar according to her position.
[52] In Raghavan v. R., [2001]
3 C.T.C. 2218 at page 2222, Campbell, J. said:
In summary, the continued equal
splitting of dividend income and interest reported on tax returns
of both Appellants, the deed of conveyance to the house along
with the mortgage remaining unchanged, the R.B.C. Dominion
Securities monthly statement accounts, the continued
intermingling of financial business affairs, the absence of any
attempt whatsoever by the wife to remove her husband's name
as beneficiary on employment benefits or even inquire what steps
she would take to do so, the assistance of the husband in
completing the wife's tax returns and operating two
businesses with the help of teenage sons, are all factors that
point to a continuing and ongoing relationship between the
Appellants. I am left with no supporting evidence of third
parties to support the Appellants' testimony which was not
straightforward but contradictory and confusing. The evidence of
the Appellant, Mr. Raghavan, was evasive at times.
[53] As far as this Court is
concerned, it does not find that the Appellant's testimony
was completely contradictory or confusing, although it was
contradictory in some respects according to the documents. It
does not think that he was deliberately trying to be confusing,
nor was he deliberately trying to mislead the Court. There were
some inconsistencies in what he said when you consider the
documents that were put before the Court.
[54] There was no evidence of any
third parties to corroborate what the Appellant said and many of
the same factors referred to by Campbell, J. on this issue,
apply here.
[55] The situation that existed there
was present here and the Appellant took no steps whatsoever to
make changes in the financial arrangements, the mortgaging, the
financing, removing his name from any documentation, or removing
his wife's name, even to the extent that he did not really
take any major steps to discontinue accounts. They might not have
been used that much but she continued to have a credit card for
which he was responsible. He continued to work in her business
and support it financially. They continued to have joint
accounts.
[56] Sanford v. R., [2003] 1
C.T.C. 221 was referred to by counsel in support of her position.
In that particular case, the Federal Court of Appeal merely said
that Judge Mogan of the Tax Court of Canada correctly concluded
that the Appellant and Markus Buchart were cohabiting in a
conjugal relationship within the meaning of
paragraph 252(4)(a) of the Act, with the
result that Mr. Buchart was the Appellant's spouse within the
meaning of the Act during the relevant periods of time.
The Court said:
The fact that the appellant has
made no express promise to live in permanence with Mr. Buchart
must be considered in light of objective criteria such as those
mentioned in Molodowich v. Penttimen as endorsed by the
Supreme Court of Canada in M.V.H., M. v. H.,... and
applied by this Court in Lavoie c. R., 2001 D.T.C. 5083
(Fr.) (Fed. C.A.).
When regard is had to these
criteria, it becomes clear that the appellant and Mr. Buchart
were cohabiting in a conjugal relationship as the Tax Court Judge
found.
In Lavoie v. R., [2000] 2 C.T.C. 2137, 1999
CarswellNat. 2113, [1999] T.C.J. No. 688, Dussault, J. said
that the question was summed up by Lamarre Proulx, J. in
Milot v. The Queen, [1996] 1 C.T.C. 2247 where she
said:
This definition leads us to consider the notion
of conjugal relationship. When can two persons be considered as
living in a conjugal relationship? This notion has often
been studied for the purposes of various statutes. . . .
She goes on to say:
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.
Then the Court said:
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:
[57] Then he listed various factors:
(1) shelter, (2) sexual and personal behaviour, (3) services,
preparation of meals, washing and mending clothes, shopping,
household maintenance and any other domestic services and (4)
social services. Do they participate together in communal
activities, what was the relationship with each of them towards
members of their respective families? Was there societal support
and economic support? What was the attitude and conduct towards
the children?
[58] Counsel suggested that it is not
sufficient just to equate the requirements of separate and apart
and of cohabiting that are considered in other statutes, but you
have to look specifically at what theAct has in mind. Not
all of the factors may be entitled to the same weight.
[59] The Appellant said that he had a
problem with trying to accept the argument that he was not able
to earn enough money based upon his financial statements in his
income tax returns to pay these payments and to live as well.
[60] He said that with respect to
separate and apart, all of the cases are different and different
from the case at bar. His actual situation is not out of the
ordinary. It is not unreasonable to conclude that they were
living separate and apart under the law.
[61] He knows some of his friends who
are living separate and apart and who continue to make claims as
being separate and apart and they still pay bills for their
spouses. They still have them on their insurance and benefit
plans. They may even very well have them on their securities and
benefits. He tried to be a nice guy.
Analysis and Decision
[62] In this case, the Court is
satisfied beyond any doubt at all that the Appellant has not met
the burden upon him of establishing that he was entitled to the
deductions in the years in question. The evidence has not
established that the Appellant paid the amounts in question.
[63] If that were the only issue the
Court would have to dismiss the appeal on that alone, because the
Court is not satisfied that the Appellant has established that he
paid the amounts in question. He did not call Darlene. He called
no evidence of the accountant. He had no documentation at all to
satisfy the Court that he paid these amounts. One would have
thought that if he was claiming that he made these payments that
Darlene would have been here, she would have been able to
corroborate what he said. The only evidence available was his own
statement that he made these payments and he admitted himself
that he did not have any other evidence or any documents to
support the position that they were made. On that alone the
Appellant's case fails.
[64] With respect to the second
argument as to whether they were living separate and apart, the
Court need only refer to the statements already referred to by
way of admissions in the Reply. There were only a couple of
presumptions which were even contested. The Appellant himself
said that he did not agree with (d), that the Appellants did not
live separate and apart during the 1997, 1998 and 1999 taxation
years. When this Court takes into account all of the factors that
have been established by the evidence and as referred to in the
cases cited, it is not satisfied that the Appellant and Darlene
were living separate and apart during the years 1997, 1998 and
1999.
[65] Of great significance is the fact
that they continued to own properties jointly. They continued to
have joint indebtedness. They continued to be jointly responsible
on the mortgages. Darlene continued to have access to his credit
card. She continued to make claims against the credit cards for
expenses. They continued to go on family vacations. They
continued to socialize in the sense that she prepared meals for
him. They ate family meals together, although there were not a
great many family meals together. She obviously did some domestic
services for him. He obviously helped her in the financing of her
own business. He paid at least the insurance premiums. He was
involved to that extent in her financing. He obviously was
supporting not only her personally but was supporting her
business too.
[66] Even though they may not have
drawn much money out of the joint bank accounts, they were still
there. There was a supplementary credit card for Darlene and
purchases were made on them.
[67] Under the circumstances here,
although they may have lived in separate parts of the house,
there was still a considerable amount of jointness with respect
to the relationship.
[68] The Court is not satisfied that
there was a physical or psychological separation in this
particular case which would entitle the Court to conclude that
the parties were living separate and apart under the Act
as Judge Bowman found in Kelner, supra. The Court looks at
the definition of "separate and apart" in the way
Bowman, J. interpreted it:
The words "separate and
apart" have been used for many years in divorce legislation
and in matrimonial litigation and I must give them a meaning that
is consonant with that given them in provincial courts dealing
with matrimonial matters.
[69] The Appellant has not met the
burden upon him in this case. This Court accepts the argument
that separate and apart implies not only a physical separation
but a breakdown of the matrimonial consortium. When the Court
looks at all of the factors which it must look at in deciding
whether or not the parties are living separate and apart, the
Court is satisfied that the Appellant has not met the burden upon
him and, indeed, this Court is not satisfied that the Appellant
and his ex-spouse were living separate and apart as
envisaged by the appropriate section of the Act.
[70] The Appellant is not entitled to
make the deductions that he claimed in the years in question, is
not entitled to claim the benefits of paragraph 60(b) of
the Act, because in order to be able to deduct the
amounts, they must be living separate and apart and the amounts
must be proved to have been paid. The Court is not satisfied that
he has met the burden on either condition.
[71] The appeals are dismissed and the
Minister's assessment is confirmed.
Signed at Ottawa, Canada, this 11th day of September,
2003.
J.T.C.C.
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