[1] In our view, 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 Income Tax Act, with the result that Mr. Buchart was the appellant's spouse within the meaning of the Act during the relevant period. (The reasons of the Tax Court Judge are reported at [2001] 1 CTC 2273.)

[2] 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 (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.) as endorsed by the Supreme Court in M.V.H. [1999] 2 S.C.R. 3 (at page 50 and 51) and applied by this Court in Lavoie v. Canada, 2001 D.T.C. 5083.

[3] 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.

[4] The appeal will be accordingly dismissed with cost on the appeal which we fix at $1500, inclusive of disbursements.

"Marc Noël"

J.A.

FEDERAL COURT OF CANADA

APPEAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

DOCKET: A-810-00

STYLE OF CAUSE: Pam Sanford v. Her Majesty the Queen

PLACE OF HEARING: Winnipeg, Manitoba

DATE OF HEARING:October 9, 2002

REASONS FOR JUDGMENT OF

THE HONOURABLE MR. JUSTICE NOËL

DATED OCTOBER 9, 2002

APPEARANCES:

Mr. Markus Buchart for the Appellant

Barrister & Solicitor

735 Wolseley Avenue

Winnipeg, Manitoba R3G 1C4

Mr. Perry Derksen for the Respondent

Department of Justice

Tax Litigation

301 - 310 Broadway

Winnipeg, Manitoba R3C 0S6

SOLICITORS OF RECORD:

Mr. Markus Buchart for the Appellant

Barrister & Solicitor

735 Wolseley Avenue

Winnipeg, Manitoba R3G 1C4

Morris Rosenberg

Deputy Attorney General of Canada for the Respondent

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Sanford v. R., 2002 FCA 381

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2002 FCA 381