Date: 20011128
Docket: 2001-3029-IT-I
BETWEEN:
JEFFERY DAVID ROBY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor
Judgment
Bowman, A.C.J.
[1]
These appeals are from assessments for the appellant's 1997,
1998 and 1999 taxation years. By those assessments the Minister
denied to the appellant certain credits and expenses the
entitlement to which is dependent upon the appellant's
marital status. Specifically:
1.
The equivalent-to-spouse amount
(paragraph 118(1)(b)).
2.
Child tax benefits (section 122.6).
3.
GST credit (section 122.5).
4.
Child care expenses (subsection 63(2)).
[2]
The appellant's right to claim these credits or to deduct
these expenses is dependent upon his living separate and apart
from his spouse by reason of the breakdown of his marriage or
similar domestic arrangement. This element is common to all four
of the provisions listed above although the application differs
somewhat in detail with respect to the period in which the
90 days fall. These details are not germane to my decision
here because I have concluded that at no time in the three years
in question was the appellant living separate and apart from his
spouse by reason of the breakdown of his marriage or, indeed for
any other reason.
[3]
The appellant and his wife Genyne Roby were married on
July 28, 1990. The appellant is a police officer and his
wife is a teacher. They had three children, Natalie and Annalise,
twins born February 3, 1995, and Byron, born
September 28, 1993.
[4]
They moved to Moosonee, Ontario in 1995 where they lived until
April or May of 1998 when they moved to London, Ontario. In
Moosonee they lived in a government owned house. In London they
lived in a house purchased by them but registered in the
appellant's name.
[5]
In 1995 or 1996, after the birth of the twins, they started to
have marital problems. The reasons for the problems are not
particularly germane to the determination that has to be made
here. Whether the difficulties had as their genesis the stresses
of the appellant's job as a police officer in a remote
northern community, differences in parenting styles, inability of
the spouses to communicate, tensions between two highly
controlling people, or a combination of all of these and other
factors, is a question best left to psychologists and family
counsellors. Whatever the reasons, they all add up to a basic
incompatibility and a marriage that was moving toward coming
apart at the seams.
[6]
The appellant testified that in Moosonee he slept in the same
room with Byron and his wife slept with the twins in another
room. The appellant testified that in London he slept in the
basement. His spouse agrees that this happened but that he also
slept with her. Mrs. Roby testified that in the years in
question she was constantly trying to keep the marriage together.
The appellant stated that he stayed with her and did not move out
because he wanted to be with the children. I observe in passing
that both spouses appeared to me to be devoted to their children
and responsible and loving parents.
[7]
In Kelner v. R., [1996] 1 C.T.C. 2687, I
reviewed the case law in this area and concluded that it was
possible for spouses to live "separate and apart" even
where they were living under the same roof. This is an
unassailable proposition as a matter of law, but as a matter of
fact in any given case the evidence should be convincing.
Campbell J. in Rangwala v. R., [2000]
4 C.T.C. 2430, and Raghavan v. R., [2001]
3 C.T.C. 2218, reached the same conclusion.
[8]
As good a starting point as any is the decision of
Holland J. in Cooper v. Cooper, (1972)
10 R.F.L. 184 (Ont.H.C.) where he said at
p. 187:
Can it be said that the parties in this case are living
separate and apart? 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.
See Rushton v. Rushton (1968), 1 R.F.L. 215, 66 W.W.R.
764, 2 D.L.R. (3d) 25 (B.C.); Smith v. Smith (1970), 2
R.F.L. 214, 74 W.W.R. 462 (B.C.); Mayberry v. Mayberry,
[1971] 2 O.R. 378, 2 R.F.L. 395, 18 D.L.R. (3d) 45 (C.A.).
[9]
Both Campbell J. and I took those criteria as useful
guidelines, although they are by no means exhaustive and no
single criterion is determinative. I tend to agree with what was
said by Wilson J. in Macmillan-Dekker v. Dekker,
August 4, 2000, docket 99-FA-8392, quoted by
Campbell J. in Rangwala at pp. 2435-2436:
Based on a synthesis of prior case law, the court established
a list of seven factors to be used to determine whether or not a
conjugal relationship exists or existed. These organising
questions permit a trial judge to view the relationship as a
whole in order to determine whether the parties lived together as
spouses. Reference to these seven factors will prevent an
inappropriate emphasis on one factor to the exclusion of others
and ensure that all relevant factors are considered.
...
I conclude that there is no single, static model of a conjugal
relationship, or 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.
[10] Bearing
in mind then that no single factor should predominate, and that
it is the overall picture that must ultimately govern, can it be
said that these spouses were living separate and apart because of
the breakdown of their marriage?
1.
Did they occupy separate bedrooms? I find that they did so most
of the time but I am not persuaded that they always did.
2.
Sexual relations continued between them, although the evidence is
contradictory about the frequency. The appellant admitted to four
times in 1998 to 2000. Mrs. Roby said they had sexual
intercourse "regularly" in the period in question. I
doubt that any useful purpose would be served by my attempting to
decide between these conflicting versions of their sexual
activity. Mr. Roby argued that separated or divorced couples
often have sexual intercourse after separation or divorce. I
accept that this may well be so, although I have no independent
evidence of the practice. It is, however, one thing, when couples
are safely separated or divorced and living in separate homes
under a valid separation agreement or order or a divorce decree,
for them to have intercourse. The occasional lapse will probably
not jeopardize their separate status. Where they are living under
the same roof and one of them is contending, as here, that they
are living separate and apart because of a breakdown of their
marriage, such activity casts some doubt on both the separation
of the spouses and the breakdown of the marriage. The more
prudent course in these circumstances would be complete
abstinence, at least as between the spouses.
3.
The spouse's communication with each other was limited, but
it was a good deal more than one would normally expect from
separated persons. They talked about the children and other
matters of common domestic interest. They exchanged expensive
Christmas gifts in 1999. The appellant gave his wife diamond
earrings and she gave him a leather coat. Mrs. Roby gave the
appellant $2,500 in 1998 or 1999 to go on holidays to England.
This is not the sort of thing separated and estranged spouses
do.
4.
The spouses shared domestic duties. Mrs. Roby shovelled the
snow and cut the grass. They both bought groceries. They both
cooked. They shared responsibility for the children.
5.
They often did not eat together, to some extent because the
appellant worked shifts. They both ate in the kitchen.
6.
Their social activities together were limited, but not
non-existent. They went to Toronto together and visited friends.
They attended special occasions together such as Thanksgiving,
birthday parties and Christmas.
[11] To these
considerations I would add that their financial affairs were
intertwined. Mr. Roby paid most of the bills. There was no
separation of financial responsibilities.
[12] They had
the same telephone. This factor in itself is of little
weight.
[13]
Mrs. Roby is the beneficiary under Mr. Roby's
pension plan, RRSP and life insurance. This factor in itself,
while it cannot be ignored, is not of much weight. Mr. Roby
struck me as a responsible person and I would not draw an adverse
inference from his wishing to ensure the continued well-being of
his wife and children.
[14]
Mr. Roby relied on a document called an Agreement of
Separation of Marriage. The Crown questioned its authenticity and
legal effectiveness. Whatever might be its validity, and even if
one accepts that it is effective according to its terms, it does
nothing to support the appellant's case. It is in many ways a
most peculiar document. It does not provide that they will live
separately. It states in clause VI that "Both parties
agree to cohabitate at the current residence". It also
provides that if either party no longer feels that cohabitation
is favourable they can tell the other party in writing by
registered mail. Since they agreed to live together I should have
thought that mentioning it over breakfast would be enough.
[15]
Clause III provides that Genyne will maintain principal
custody of the two daughters and the appellant will maintain
principal custody of Byron. Elaborate arrangements are set out
for visitation rights. Since they were all living together this
boilerplate is a little pointless. I think the prospect of a tax
benefit was an important motivating factor.
[16] Taking
all the facts into account I see this relationship in 1997, 1998
and 1999 as essentially a bad one, but I do not think they were
living separate and apart nor do I see the marriage as having
broken down, although it was unquestionably fragile.
[17]
Mr. Roby argued that he saw the marriage as being over in
1997 and he wanted out, but that he had to stay around because of
the children since he was afraid his wife would never let him see
them again. Accepting this statement at its face value it
scarcely helps his case. It merely supports the position that
they were not separated.
[18] The
respondent subpoenaed Mrs. Roby but Mr. Roby called her
as his witness. Since we were in the informal procedure I gave
him a good deal of latitude in the manner of asking questions.
Indeed much of his examination-in-chief consisted of
cross-examination and leading questions. Nonetheless I do not
think the appellant elicited a single statement from his wife
that supported his position. Virtually all her answers supported
the Crown.
[19] The
appeals are dismissed.
Signed at Ottawa, Canada, this 28th day of November 2001.
"D.G.H. Bowman"
A.C.J.
COURT FILE
NO.:
2001-3029(IT)I
STYLE OF
CAUSE:
Between Jeffery David Roby and
Her Majesty The Queen
PLACE OF
HEARING:
London, Ontario
DATE OF
HEARING:
November 20, 2001
REASONS FOR JUDGMENT
BY:
The Honourable D.G.H. Bowman
Associate Chief Judge
DATE OF
JUDGMENT:
November 28, 2001
APPEARANCES:
For the
Appellant:
The Appellant himself
Counsel for the
Respondent:
Ifeanyi Nwachukwu, Esq.
COUNSEL OF RECORD:
For the
Appellant:
Name:
--
Firm:
--
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-3029(IT)I
BETWEEN:
JEFFERY DAVID ROBY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeals heard on November 20, 2001, at
London, Ontario, by
The Honourable D.G.H. Bowman
Associate Chief Judge
Appearances
For the
Appellant:
The Appellant himself
Counsel for the Respondent: Ifeanyi
Nwachukwu, Esq.
JUDGMENT
It is
ordered that the appeals from assessments made under the
Income Tax Act for the 1997, 1998 and 1999 taxation years
be dismissed.
Signed at Ottawa, Canada, this 28th day of November 2001.
A.C.J.
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