Myrtha Eliacin v. Her Majesty the Queen (Informal Procedure), [1993] 2 CTC 2635

Rip, T.C.C.J.:—The point for determination in this appeal from an assessment for the 1990 taxation year is whether Ms. Myrtha Eliacin, the appellant, was entitled, under subsection 63(1) of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act"), to a deduction for maintenance expenses for her children qualified as “ eligible children" within the meaning of paragraph 63(3)(c) of the Act in computing her income for 1990. In fact, the Minister of National Revenue (the"Minister") did not dispute that the children were ‘eligible children". He said that the appellant's husband met the conditions to qualify as a "supporting person". More particularly, he resided with the appellant at any time during 1990 and at any time within the 60 days after the end of the year (paragraph 63(3)(d)). The Minister also said that the husband was not living separate and apart from the appellant at the end of the year and for a period of at least 90 days commencing in the year (subparagraph 63(2)(b)(vi)). The Minister said that the appellant’s net income was greater than that of her husband. Consequently, maintenance expenses should be deducted from the husband's income, not from that of the appellant (subsection 63(2)).

The appellant chose to institute the appeal under the rules of the informal procedure.

The appellant argued that she had rightly deducted the amount as maintenance expenses from her income for the 1990 taxation year. She claimed that she was in fact separated from her husband. No separation agreement had been entered into by the spouses on account of their children. The appellant and her husband decided by mutual consent to separate in September 1990 following the latter's return from Haiti in July 1990. The appellant’s husband had left Canada for Haiti in September 1989.

In October 1990, the appellant's husband decided to settle in the Montréal area mainly in order to find employment there. The latter returned to Hull on a number of occasions to undertake repairs to a rental housing unit which the parties owned jointly, as well as to pay expenses relating to the property, expenses which were paid out of their joint bank account. He also stayed in Hull for a few days when he was required to work as a teacher with the Ottawa- Carleton School Board. In addition, he returned there from time to time to visit his children.

During his stays in Hull, the appellant's husband stayed with her and her children. However, the parties were no longer living in a domestic relationship. They stayed in separate rooms during these visits; he slept in the basement.

Paragraph 63(3)(d) states:

“supporting person" of an eligible child of a taxpayer for a taxation year means

(i) a parent of the child,

(ii) the taxpayer's spouse, or

(iii) an individual who deducted an amount under section 118 for the year in respect of the child

if the parent, spouse or individual, as the case may be, resided with the taxpayer at any time during the year and at any time within 60 days after the end of the year.

Thus, one of the questions for determination is whether the appellant's husband was a supporting person during 1990. If he in fact resided with the appellant at any time during 1990 and at any time within 60 days after the end of the year, he was such a person; otherwise, he was not a supporting person, and the appellant may claim the child care expenses.

Counsel for the respondent relied on Thomson v. M.N.R., [1946] S.C.R. 209, [1946] C.T.C. 51, 2 D.T.C. 812, a judgment of the Supreme Court, which affirmed the principle that a taxpayer may have more than one residence. In my view, this judgment in no way applies to the facts of the instant appeal. Paragraph 63(3)(d) uses the words ”. . . the .. . spouse . . . resided with the taxpayer. . .". In Thomson, it was discussed whether the taxpayer had resided in Canada.

Le Petit Robert 1 defines the word "avec" ("with") as follows:

1. (Indicates relation: simultaneous physical presence; moral agreement between a person and someone or something). In the company of (someone). See prefix "co-"."To go walking with someone.""My greatest pleasure is to go out with you.” "He always has his dog with him.” To be with someone:"in his or her company". "They are always with each other.” See "auprès (de)". "She was then with a very rich man.” Flaubert: "she lived with him. . . ."

[Translation.]

The same dictionary states that the word "à" ("in") means "position in a place".

In English, there is also a difference between the words “in” and "with". The Shorter Oxford English Dictionary on Historical Principles defines the word “in” to mean ”. . . the preposition expressing the relation of inclusion, situation, position, existence, or action within limits of space . . . ." The word also means ”. . . within the limits or bounds of, within (any place or thing) . . . ."

The Shorter Oxford English Dictionary defines the word "with" as follows:

II. Denoting personal relation, agreement, association, union, addition. . . . 13. Following words expression accompaniment or addition, as associate, connect, join, marry, share, unite vbs. . . 19. Expressing association, conjunction, or connection in thought, action or condition . . . 25. Indicating an accompanying or attendant circumstance, or a result following from the action expressed by the verb.

The English courts have had to define the words" reside with” which appear at subsection 1(4) of the Summary Jurisdiction (Separation and Maintenance) Act, 1925, (15 & 16 Geo. 5, c. 51). That subsection provides that a maintenance order is not executory if the woman "resides with” her husband. The words "reside with" were defined as meaning "residing in the same house as" (see Evans v. Evans, [1948] 1 K.B. 175, at page 182). or" living in the same house with” (see Hewitt v. Hewitt, [1952] 2 Q.B. 627, at page 631). These words were distinguished from the term "cohabit", which means “to live together as husband and wife”. The same statute provides that a maintenance order will be null and void if the parties resume cohabitation. On this point, Goddard, C.J. of the King’s Bench made the following comments, supra, at page 180:

Cohabitation implies a state of affairs very different from that of mere residence. It must mean that the wife is acting as a wife and has kept her status and position as a wife . . . what is meant by cohabitation is that the wife has kept her position as a wife; is rendering wifely services to him and is acknowledged by the husband to be his wife . . ..

He stated in another judgment (Wheatley v. Wheatley, [1950] 1 K.B. 39) also on the issue of cohabitation: "They must live together not merely as two people living in one house, but as husband and wife. I cannot for myself believe that the draftsman of the Act meant the same thing when he used the words" reside with" . . .” (ibid., at pages 43-44). In that case, it was found that a woman resided with her husband if she lived in the same house as he, regardless whether they lived as husband and wife.

It may be said in light of this case law that the words "to reside with” have a broader definition and do not mean to live in a domestic relationship; they only mean to live in the same house as someone else. It also appears that Parliament should have used the word "cohabit" to denote the act of living as husband and wife.

The Act uses only the words reside with”. The word “ cohabitation” does not appear in the Act, and is of no relevance to the purposes of this appeal. Thus, the English case law does not help us.

The word "résider" ("reside") is defined by Le Petit Robert 1 as follows:

1. To be established customarily in a place; to have one's residence there . . . .

[Translation.]

In English, The Shorter Oxford English Dictionary defines the word "reside" as:

2. To dwell permanently or for a considerable time, to have one's settled or usual abode, to live, in or at a particular place.

The word "with", when used in the phrase". . . the. . .spouse. . . resided with the taxpayer . . ." in paragraph 63(3)(d) means two things: first, the spouse must reside customarily in the same building as the appellant, and, second, there must be a domestic relationship between the two spouses and their children.

There is a difference between “residing with someone" [translation] and “residing in Canada" [translation]. In a home for the elderly, for example, the elderly persons reside in the same residence, but they do not reside with each other. The appellant's husband could reside in the same building as the appellant when he was in Hull, but I doubt that they resided together, that is to say with each other, after the start of November 1990 and at any time within 60 days after the end of the year. The appellant's husband was not qualified as a "supporting person”, and the appellant is entitled to deduct child care expenses in computing her income for 1990.

It is therefore not necessary to determine whether the appellant and her husband lived separate and apart for the purposes of subparagraph 63(2)(b)(vi).

The appeal is allowed with costs, if any.

Appeal allowed.