Minister of National Revenue v. Claire L. Longchamps and Fernand Longchamps, [1986] 2 CTC 2231, 86 DTC 1694

Couture, C.J.T.C.:—The applicant applied to the Tax Court of Canada pursuant to the provisions of subsection 174(1) of the Income Tax Act, R.S.C. 1952, c. 148 as amended by section 1 of S.C. 1970-71-72, c. 63 (“The Act") and obtained an order that a question of mixed law and fact arising out of the same occurrences which was common to assessments in respect of the two respondents be determined by the Court.

Pursuant to this order the respondents gave evidence before the Court and established these facts.

The respondents were married on the 18th of October 1958 and from this union four children were born. As a result of a serious deterioration of their marriage a petition for divorce was issued out of the Supreme Court of Ontario on March 11, 1980. An interim application was commenced on behalf of Claire L. Longchamps returnable before the Supreme Court of Ontario, at Ottawa, on the 21st day of March 1980, which application sought, inter alia, interim custody and support for the children of the marriage, interim support for her and interim exclusive possession of the matrimonial home and all of the contents. Prior to the return of the motion, following negotiations by the parties an interim order was granted on consent. It provided that custody of the children would be awarded to Mrs. Longchamps; that she would be entitled to support for herself and the children in the amount of $1,200 a month, and while she was seeking interim exclusive possession of the matrimonial home her husband was allowed to reside in the home because he could not afford to leave and take up residence elsewhere. The husband resided in the house until May 1, 1981. However, the parties had not shared the same bedroom since November 1979, and according to Mr. Longchamps he considered himself as a boarder in the house, a situation which was confirmed by Mrs. Longchamps in her evidence. In response to a question by counsel for the applicant she also admitted that they were not living as husband and wife.

From the evidence it is clear that Mrs. Longchamps managed the household including caring for the children, buying food and paying all the bills.

Mr. Longchamps bought his own food and kept some of his clothing in his room the remainder being kept at another residence.

There is no doubt that there had been a permanent breakdown of the marriage and the rupture was so severe that reconciliation could not be envisaged by either party. There was no rapport of any nature whatsoever between them during the period of April 1, 1980 to May 1, 1981. In fact, Mr. Longchamps in his evidence stated that not more than five words passed between them during that time. While they were living under the same roof they pursued separate and individual lives.

In its application, the applicant is seeking a determination of the following questions:

(a) Whether or not the respondents were living separate and apart during the taxation years under appeal.

(b) Whether the amounts paid as alimony by Fernand T. Longchamps during his 1980 and 1981 taxation years were amounts deductible by him under paragraph 60(b) of the Act and whether those amounts should be included in computing the income of Claire L. Longchamps pursuant to paragraph 56(1 )(b) of the Act.

The answer to the first question will provide the answer to the other questions. While there were minior variances in the evidence adduced by each respondent regarding the situation which existed between them prior to their divorce and more specifically during the period of April 1, 1980 to May 1, 1981, these discrepancies were not of a nature that would carry much weight one way or another on the final decision of the Court.

From the gist of this evidence there was no doubt that the ties of the marriage had been broken a number of years prior to the period with which we are concerned and the only link that remained between them was the bond that was established initially under the law when they were married and which restrained their respective absolute personal freedom vis-a-vis one another.

The evidence established that while the respondents were living under the same roof, they were pursuing their respective activities as strangers to one another or as if the other did not exist. There was no communication between them, no socializing whatsoever, each attending to his or her own affairs without consultation between them. Needless to say there was no cohabitation. For reasons already mentioned, they just happened to reside in the same house for the period in question.

Under such circumstances is it possible to conclude that they were not living apart? I think not.

Alimony or other allowance under the provisions of paragraph 56(1)(b) are income of the recipient if, inter alia, the spouses or former spouses were living apart, and conversely are deductible by the payor under the provisions of paragraph 60(b) subject to that condition. The meaning of the expression “living apart” in the various provisions of the Act dealing with alimony and maintenance payments must be assigned a wider signification than a mere physical presence on the part of the spouses or former spouses in separate living units. In my opinion it contemplates a situation where two individuals who having been united by the bonds of marriage and having lived thereafter as husband and wife, or having lived together in a relationship of some permanence as prescribed by some provincial legislation, have severed this relationship for reasons of their own and from then on have pursued their respective existence in different and opposite directions.

The termination of all rapport between a husband and his wife of the kind evidenced in this appeal is certainly in my opinion within the meaning that must be attributed to the expression “living apart”. Under such circumstances, it becomes irrelevant whether the parties live miles apart or under the same roof. For the purposes of the Act they are living apart and to the extent that the other conditions and requirements of the statute are met, the alimony or other allowance payments must be included in income by the recipient and correspondingly are deductible by the payor in computing his or her income.

Civil courts across the country have considered the meaning of the expression “living separate and apart” as this expression is used in the Divorce Act and admittedly while we are dealing with two different statutes the expression in each statute contemplates a situation which arose from similar circumstances. In addition, while the provisions of the Act dealing with alimony and other allowance payments refer to “living apart”, the Divorce Act paragraph 4(1)(e) of R.S.C. 1970 c. D-8 mentions “living separate and apart” but the Court sees no material difference in the meaning of these expressions and in their respective application to situations which they contemplate.

In a judgment of the Supreme Court of British Columbia, McIntyre, J., as he then was, considered the meaning of the expression “living separate and apart” in a petition for divorce in the matter of Rushton v. Rushton, 2 D.L.R.

(3d) 25; 66 W.W.R. 764. The facts as summarized by the learned Justice at 25-26 (W.W.R. 764-65) are relatively simple and similar to those concerning the respondents in the present application and are related as follows:

The parties were married in 1936. By 1960 they had come upon difficulties and had begun to live separate lives, although they continued to reside in the same suite in an apartment building. In February 1965, and probably from an earlier date, sexual intercourse ceased entirely. The petitioner lived in one room of the suite, the respondent in another; there was almost no contact between them. The wife performed no domestic services for the husband. She shopped and cooked only for herself. He bought his own food, did his own cooking, his own laundry and received no services from his wife. He paid her a sum monthly for maintenance. While it is true that they lived in the same suite of rooms, they followed separate and individual lives.

The petitioner continued to live in the suite because she and her husband were the joint caretakers of the apartment building in which the suite was situate, and to keep the position it was necessary to be, or to appear to be, husband and wife and to reside in the caretaker's suite.”

In August 1968, they became responsible for another apartment building where no such requirement exists. They now maintain separate suites in the same building.

At 27 (W.W.R. 766) His Lordship says:

I am of the opinion that in the case at bar the parties have been living separate and apart within the meaning of s. 4(1)(e)(i)* [1] of our Divorce Act. The word "separate and apart” are disjunctive. They mean, in my view, that there must be a withdrawal from the matrimonial obligation with intent of destroying the matrimonial consortium, as well as physical separation. The two conditions must be met. I hold that they are met here. The mere fact that the parties are under one roof does not mean that they are not living separate and apart within the meaning of the Act. There can be and I hold that here there has been, a physical separation within the one suite of rooms. To hold otherwise would be to deprive the petitioner here of any remedy under the new Divorce Act simply because she is precluded, by economic circumstances from acquiring a different suite in which to live.

The Court finds persuasive authority in this pronouncement for the proposition that spouses or former spouses, while living in the same dwelling or living unit, may nonetheless live apart. This judgment has been relied upon and followed in a number of decisions rendered by various civil courts and to name but a few they are: Galbraith v. Galbraith, 69 W.W.R. 390; 8 D.L.R. (3d) 24 a decision of the Court of Appeal of Manitoba; Roussel v. Roussel, 69 W.W.R. 568; 6 D.L.R. (3d) 639 Court of Queen's Bench of Saskatchewan; Smith v. Smith, 2 R.F.L. 214 Supreme Court of British Columbia; Hébert v. Dame Houle Recueils de Jurisprudence [1973] C.S. 868 (Superior Court of Quebec).

Counsel for Claire L. Longchamps referred the Court to a number of decisions in which it was held that under the circumstances relevant to each of these cases the parties who were living under the same roof were not living separate and apart.

Each of these cases was carefully reviewed and unfortunately found to be of no application to the case at bar. Whether two spouses are living separate and apart is a question of fact, and each case must be decided upon its own facts. In each case referred to by counsel the parties had maintained a degree of rapport that was found by the Courts to be sufficient to conclude that these parties were not living separate and apart.

Determination accordingly.