The
Assistant
Chairman:—The
Minister
of
National
Revenue
applied
to
this
Board
for
the
determination
of
a
question,
which
question
is
set
forth
in
the
application.
As
the
answer
to
the
question
affected
Vernon
W
Yorgason
(the
“former
husband”)
and
Flora
J
Yorgason
(the
“former
wife”),
notice
of
the
said
application
was
given
to
each
of
them.
Shortly
after
the
application
was
filed
with
this
Board,
the
Minister
of
National
Revenue
amended
the
application
to
change
the
amounts
referred
to
in
paragraph
3(c)
to
those
amounts
as
3(c)
now
reads.
At
the
hearing
of
this
matter,
I
went
over
with
the
three
parties;
namely,
the
former
wife,
the
former
husband
and
counsel
for
the
Minister
of
National
Revenue,
the
facts
on
which
the
Minister
of
National
Revenue
relied
as
set
forth
in
the
application.
The
former
husband
took
exception
to
the
statement
in
paragraph
3(e).
After
discussion
with
the
parties,
paragraph
3(e)
as
amended
to
read
as
it
is
reproduced
hereunder:
(e)
Flora
J
Yorgason
initially
reported
the
above
amount
as
income
for
1974
and
then
later
asked
the
Minister
to
delete
the
same,
which
he
did,
and
she
failed
to
include
any
part
of
the
amounts
paid
to
her
by
Vernon
W
Yorgason
in
her
income
for
the
1975
and
1976
taxation
years.
The
application
as
amended
reads
as
follows:
1.
The
Minister
of
National
Revenue
is
of
the
opinion
that
questions
of
mixed
fact
and
law
arising
out
of
the
same
transaction
or
series
of
transactions
are
common
to
assessments
in
respect
of
two
or
more
taxpayers.
2.
The
Minister
of
National
Revenue
hereby
applies
to
the
Tax
Review
Board
for
a
determination
of
the
questions
hereinafter
set
forth.
3.
The
transaction
or
series
of
transactions
is
as
follows:
(a)
a
separation
agreement
was
made
on
the
25th
day
of
February,
1974
by
Vernon
W
Yorgason
and
Flora
J
Yorgason;
(b)
the
separation
agreement
provided,
inter
alia,
that:
“3.
LIVING
APART—The
husband
and
wife
acknowledge
that:
(a)
there
are
irreconcilable
differences
between
them;
(b)
that
they
have
been
living
apart
since
the
1st
of
February,
1974;
(c)
that
they
intend
to
and
will
live
apart
from
each
other
for
the
rest
of
their
lives.”
‘‘7a.
MAINTENANCE—On
February
1st,
1974,
and
on
the
first
day
of
each
month
following,
during
the
joint
lives
of
the
husband
and
wife,
the
husband
shall
pay
to
the
wife
the
sum
of
$700
by
way
of
maintenance
for
herself
and
the
children.”
‘‘8.(1)
MATERIAL
CHANGE
IN
CIRCUMSTANCES—the
husband
and
wife
intend
sections
6
and
7
of
this
agreement
to
be
final
except
for
variation
by
reason
of
a
material
change
in
circumstances
that
effects,
(a)
the
welfare
of
the
children;
(b)
the
needs
of
the
children
during
the
period
of
maintenance
mentioned
in
section
7(b)
of
this
agreement;
(c)
financial
resources
of
either
husand
or
wife.”
(c)
Vernon
W
Yorgason
paid
the
following
amounts
to
Flora
J
Yorgason
in
1974,
1975
and
1976:
|
1974
|
$
8,834.45
|
|
1975
|
10,180.70
|
|
1976
|
8,367.51;
|
(d)
Vernon
W
Yorgason
has
sought
to
deduct
the
aforesaid
amounts
in
the
computation
of
his
income
for
the
1974,
1975
and
1976
taxation
years;
(e)
Flora
J
Yorgason
initially
reported
the
above
amount
as
income
for
1974
and
then
later
asked
the
Minister
to
delete
the
same,
which
he
did,
and
she
failed
to
include
any
part
of
the
amounts
paid
to
her
by
Vernon
W
Yorgason
in
her
income
for
the
1975
and
1976
taxation
years.
4.
The
question
in
respect
of
which
the
Minister
of
National
Revenue
requests
a
determination
is
whether
the
whole
or
any
part
of
said
payments
paid
by
Vernon
W
Yorgason
and
received
by
Flora
J
Yorgason
were
amounts
paid
pursuant
to
a
written
agreement
as
alimony
or
other
allowance
payable
on
a
periodic
basis
for
the
maintenance
of
Flora
J
Yorgason,
the
children
of
the
marriage,
or
both
Flora
J
Yorgason
and
the
children
of
the
marriage,
from
whom
Vernon
W
Yorgason
was
living
apart
from
and
to
whom
he
was
required
to
make
the
payments
at
the
time
the
payments
were
made
and
throughout
the
remainder
of
the
year,
and
therefore
deductible
by
Vernon
W
Yorgason
in
the
computation
of
his
income
for
1974,1975
and
1976
pursuant
to
subsection
60(b)
of
the
Income
Tax
Act
and
to
be
included
in
the
computation
of
Flora
J
Yorgason’s
income
for
1974,1975
and
1976
pursuant
to
paragraph
56(1)(b)
of
the
Income
Tax
Act.
5.
By
Notice
of
Reassessment
dated
June
27th,
1978,
the
Minister
of
National
Revenue
reassessed
Vernon
W
Yorgason
for
income
tax
in
respect
of
his
1974,
1975
and
1976
taxation
years
on
the
basis
that
the
said
payments
of
$8,834.45,
$10,180.70
and
$8,367.51
were
not
amounts
paid
by
him
pursuant
to
a
written
agreement
as
alimony
or
other
allowance
payable
on
a
periodic
basis
for
the
maintenance
of
the
recipient
thereof,
the
children
of
the
marriage,
or
both
the
recipient
and
children
of
the
marriage,
from
whom
he
was
living
apart
and
to
whom
he
was
required
to
make
the
payments
at
the
time
the
payments
were
made
and
throughout
the
remainder
of
the
year.
6.
The
Minister
assessed
Flora
J
Yorgason
for
income
tax
in
respect
of
the
1975
and
1976
taxation
years
on
the
basis
that
the
said
payments
of
$8,834.45,
$10,180.70
and
$8,367.51
were
not
amounts
received
by
her
in
the
year
pursuant
to
a
written
agreement
as
an
allowance
payable
on
a
periodic
basis
for
her
maintenance,
or
the
maintenance
of
the
children
of
the
marriage,
or
both
for
the
maintenance
of
her
and
the
children
of
the
marriage,
when
she
was
living
apart
from
and
was
separated
pursuant
to
a
written
agreement
from
Vernon
W
Yorgason.
7.
The
facts
and
reasons
on
which
the
Minister
of
National
Revenue
relies
and
on
which
he
based
assessments
of
tax
for
the
1974,
1975
and
1976
taxation
years
in
respect
of
Vernon
W
Yorgason
and
Flora
J
Yorgason
are
as
follows:
(a)
the
said
parties,
who
were
husband
and
wife,
began
living
apart
on
February
1st,
1974;
(b)
the
said
parties
entered
into
a
separation
agreement
made
on
February
25th,
1974;
(c)
a
reconciliation
between
the
parties
was
effected
a
few
months
after
the
first
separation
on
February
1st,
1974;
(d)
the
parties
separated
again
and
began
living
apart
on
or
about
February,
1976;
(e)
the
said
amounts
of
$8,834.45,
$10,180.70
and
$8,367.51
were
not
paid
by
Vernon
W
Yorgason
pursuant
to
a
vaild
written
agreement
as
an
allowance
payable
on
a
periodic
basis
for
the
maintenance
of
the
recipient
thereof,
children
of
the
marriage,
or
both
the
recipient
and
the
children
of
the
marriage,
from
whom
he
was
living
apart
and
to
whom
he
was
required
to
make
the
payments
at
the
time
the
payments
were
made
and
throughout
the
remainder
of
the
year
and
are
therefore
not
deductible
in
the
computation
of
his
income
for
1974,
1975
and
1976
pursuant
to
subsection
60(b)
of
the
Income
Tax
Act;
(f)
the
said
amounts
were
not
received
by
Flora
J
Yorgason
pursuant
to
a
valid
written
agreement
as
alimony
or
other
allowance
payable
on
a
periodic
basis
for
the
maintenance
of
her,
the
children
of
the
marriage,
or
both
her
and
children
of
the
marriage,
when
she
was
living
apart
from
and
was
separated
pursuant
to
a
written
separation
agreement
from
Vernon
W
Yorgason
who
was
required
to
make
the
payment
at
the
time
the
payment
was
made
and
throughout
the
remainder
of
the
year
and
are
therefore
not
to
be
included
in
the
computation
of
her
income
for
1974,
1975
and
1976
pursuant
to
paragraph
56(1)(b)
of
the
Income
Tax
Act.
8.
The
names
and
last
known
addresses
of
the
taxpayers
that
the
Minister
of
National
Revenue
seeks
to
have
bound
by
the
determination
of
the
questions
hereinbefore
set
forth
are:
Vernon
W
Yorgason
10
Connaught
Circle
Toronto,
Ontario
M6C
2S7
Flora
J
Yorgason
717
Dundas
Street
Whitby,
Ontario
9.
Only
Vernon
W
Yorgason
has
served
a
notice
of
objection
to
the
aforementioned
assessments.
(Obviously
the
first
of
the
three
amounts
in
paragraph
6
must
refer
to
the
1974
year
which
is
not
mentioned
in
that
paragraph.)
As
one
can
see
from
paragraph
4,
the
question
in
respect
of
which
the
Minister
wishes
an
answer
is:
“What
amount,
if
any,
of
the
amounts
paid
by
the
former
husband
to
the
former
wife
in
the
circumstances
was
within
the
ambit
of
paragraph
60(b)
of
the
Income
Tax
Act
and
therefore
deductible
by
the
said
former
husband
in
computing
his
income
and
are
to
be
included
in
the
computation
of
the
income
of
the
former
wife
pursuant
to
the
provisions
of
paragraph
56(1)(b)
for
the
years
1974,
1975
and
1976?”
In
going
over
the
facts
upon
which
the
Minister
relied,
the
former
husband
took
clear
exception
to
the
statement
contained
in
paragraph
7(c),
namely:
“a
reconciliation
between
the
parties
was
effected
a
few
months
after
the
first
separation
on
February
1st,
1974.”
The
issue
thus
appears
to
become
whether
or
not
the
valid
separation
agreement
entered
into
on
February
25,1974,
was
nullified
by
resumption
of
cohabitation
between
the
parties
and,
if
it
were
so
nullified,
when
was
cohabitation
resumed.
The
former
husband
admits
that
there
was
resumption
of
cohabitation
in
February
1976
for
one
month.
Was
there
resumption
of
cohabitation
prior
to
this
date?
At
the
date
of
the
separation
agreement
there
were
three
children
of
the
marriage,
born
July
1963,
July
1966
and
December
1968.
It
is
not
surprising
that
there
was
a
marked
conflict
in
the
evidence
given
by
both
the
former
husband
and
the
former
wife.
The
evidence
presented
must
be
considered
to
decide
what
evidence
should
be
rejected
and
what
evidence
should
be
accepted.
The
former
husband
and
the
former
wife,
in
1973
if
not
earlier,
resided
on
a
farm
near
Hornby,
Ontario,
which
is
somewhat
west
of
the
City
of
Toronto.
According
to
the
former
husband,
for
him
to
drive
from
Hornby
to
York
University,
where
he
taught
in
1974,
1975
and
1976,
would
take
about
35
minutes—a
distance
of
about
22
miles.
In
February
1974
he
rented
an
apartment
in
the
area
of
Dufferin
St
and
St
Clair
Ave
in
the
City
of
Toronto
and
to
get
there
from
York
University
took
about
27
minutes.
It
would
appear
that
the
relationship
between
the
former
husband
and
the
former
wife
was
running
into
difficulties
in
1972
and
1973.
The
evidence
indicated
that
the
former
wife,
in
1972
and
1973,
was
advised
to
get
psychiatric
help.
She
also
underwent
hypnosis.
In
July/August
1973
she
left
him
and
he
did
not
know
where
she
was.
She
telephoned
him
a
couple
of
times
and,
if
I
recall
the
evidence
correctly,
she
was
then
in
eastern
Canada.
If
he
was
not
teaching
at
this
time,
he
was
running
the
farm
at
Hornby.
The
former
wife
returned
about
mid-August
and,
insofar
as
the
former
husband
was
concerned,
there
was
no
change
in
her
condition.
The
former
husband
apparently
was
very
distraught
at
this
time
and
attempted
Suicide.
He
was
treated
and
later
returned
home,
but
the
marriage
relationship
continued
to
deteriorate.
The
parties
separated
in
February
1974
and
he
took
an
apartment
as
indicated
above
at
that
time.
He
lived
there
until
September
1976.
As
to
his
occupation
over
the
period,
he
lectured
at
York
University
and,
in
one
or
more
of
the
years,
he
lectured
at
Wilfrid
Laurier
University
in
Waterloo.
He
also
had
a
government
position
in
the
City
of
Toronto.
In
the
words
of
his
former
wife:
“He
was
a
very
hard
worker.”
Following
the
separation,
the
three
children
stayed
with
their
mother
at
Hornby.
According
to
the
evidence
of
the
former
husband,
notwithstanding
the
separation
agreement,
he
returned
periodically
to
the
home
at
Hornby,
Ontario,
on
Saturday
morning
and
stayed
there
until
Sunday
night,
as
he
said,
to
see
the
children.
He
stated
that,
of
the
next
100
weekends,
he
would
have
been
there
about
70
of
the
weekends
in
that
period
of
time.
He
continued
that,
on
these
visits,
on
about
one-half
of
the
occasions
he
slept
with
his
former
wife
and
on
the
other
half
he
slept
in
the
study.
While
admitting
that
he
had
sexual
relations
with
her
on
these
occasions,
they
did
not
commence
until
about
mid-1974
and
he
only
had
them
as
he
was
under
severe
duress
and
pressure
from
her.
In
his
words:
“She
compelled
me
to
have
sexual
relations.”
He
wanted
to
see
his
children
and
had
he
not
had
sexual
relations
with
his
former
wife,
she
would
have
denied
him
access
to
the
children
and
also
would
have
locked
him
out.
In
addition,
according
to
the
former
husband,
both
he
and
his
former
wife
were
members
of
the
Church
of
Jesus
Christ
of
Latter
Day
Saints,
he
being
an
elder
of
that
church.
Separation
was
not
approved
of
by
that
church
and
he
stated
that
she
threatened
him
with
excommunication
if
he
would
not
act
as
he
did
act
on
the
weekends
when
he
returned
to
Hornby.
In
addition,
a
psychiatrist
had
advised
him
that
he
owed
it
to
his
children
to
stay
alive
and
accept
what
he
had
to
accept
as
he
did
not
wish
to
cut
himself
off
from
his
children.
On
cross-examination
by
counsel
for
the
former
wife,
the
former
husband
stated
he
was
not
certain
whether
or
not
he
had
helped
his
former
wife
prepare
her
1974
income
tax
return
in
the
spring
of
1975.
He
admitted
that
he
had
helped
others
and
did
agree
it
was
possible
that
he
had
helped
her.
So
far
as
the
separation
is
concerned,
it
was
initiated
by
his
former
wife
and
he
went
along
with
it.
He
intended
to
leave
her
when
the
agreement
was
Signed
and
never
return.
He
told
counsel
for
the
former
wife
that
he
was
forced
to
have
sexual
relations
with
her
by
recalling
their
old
behaviour,
as
he
stated:
“I
did
as
she
requested.”
He
agreed
that
he
had
taken
a
vacation
in
the
summer
of
1974,
in
the
Maritimes
I
believe,
with
his
children
and
former
wife.
They
had
a
tent-trailer
in
which
they
slept.
The
holiday
lasted
for
a
week
or
thereabouts.
On
or
about
January
30,
1979,
the
former
husband
wrote
to
the
solicitor
for
the
former
wife.
At
this
time
he
was
discussing
the
tax
impact
on
both
of
them,
as
the
Department
of
National
Revenue
had
taken
the
position
that
the
amounts
he
paid
were
not
deductible.
He
points
out
in
the
letter
that
“I
have
been
reassessed
by
the
Department
of
National
Revenue
based
on
her
(the
former
wife)
claim
that
the
separation
agreement
was
not
valid
for
the
taxation
years
1974
and
1975.”
The
penultimate
paragraph
of
that
same
letter
reads
as
follows:
What
I
suggest
therefore,
is
that
Flora
provide
me
with
a
letter
attesting
to
the
validity
of
the
separation
agreement
during
1974
and
1975.
In
return,
I
will
undertake
to
pay
any
and
all
income
taxes
that
might
be
found
owing
for
1974
and
1975,
above
those
monies
that
have
already
been
paid.
I
will
thus
accept
responsibility
for
the
net
amount
owing,
by
her,
for
these
years.
In
reply
to
counsel’s
question
with
respect
to
the
above-noted
paragraph,
the
former
husband
stated
that
he
was
not
trying
to
bribe
his
former
wife
but
was
trying
to
minimize
the
impact
of
taxation
on
their
collective
wellbeing
as
his
rate
of
tax
was
higher.
It
was
also
an
endeavour
to
get
rid
of
the
stress
of
the
pending
income
tax
appeal
he
had
made.
He
took
whatever
property
he
could
from
the
home
in
Hornby
if
his
wife
would
let
him.
She
would
not
let
him
take
his
tools,
old
books,
clothes,
etc,
some
of
which
disappeared
in
his
absence.
He
admitted
to
counsel
for
the
former
wife
that
he
resumed
cohabitation
in
February
1976,
feeling
that
it
was
his
duty
to
his
children.
The
apartment
was
acquired
on
February
14,
1974.
While
at
Hornby
for
those
weekends,
he
did
eat
some
meals
at
the
common
table.
As
for
the
cooking,
it
was
done
by
his
former
wife,
himself
and
his
son.
The
former
wife
did
not
wash
his
clothes.
While
he
and
his
former
wife
possibly
went
out
socially,
they
did
not
entertain
at
the
Hornby
home.
The
former
husband
called
the
eldest
child
to
give
evidence.
He
was
called,
in
the
main,
to
give
evidence
that
he
saw
his
father
fairly
frequently
on
Saturday
but
only
a
few
Sundays.
The
impression
I
received
of
the
son
was
that,
unfortunately,
he
was
in
the
middle
of
a
dispute
between
his
parents
and,
since
he
was
not
living
with
his
father,
tended
to
favour
him.
I
feel
that
his
evidence
is
not
helpful
at
all
inasmuch
as
he
seemed
to
indicate
that
his
father
was
at
the
Hornby
home
less
frequently
than
his
father
admitted
he
was.
The
evidence
of
the
former
wife
is,
as
I
have
indicated,
diametrically
opposed
to
that
of
the
former
husband.
She
stated
that
she
never
denied
him
access
to
the
home
although
possibly
she
threatened
him
with
it.
She
confirmed,
as
the
former
husband
had
admitted,
that
they
had
sexual
relations
after
they
had
signed
the
separation
agreement
in
1974.
She
indicated
that,
during
this
period,
they
went
out
on
social
parties
with
other
faculty
members
of
the
university.
She
stated
that,
in
this
period
of
time
(1974-1975),
he
was
away
from
the
Hornby
home
as
he
was
working
very
hard.
He
would
occasionally
drop
in
during
the
week.
The
impression,
I
think,
that
the
former
wife
was
trying
to
create
was
that
his
apartment
in
Toronto
was
a
temporary
expediency
because
of
his
teaching
in
Toronto-some
courses
were
taught
in
the
evening.
She
continued
and
said
that
they
saw
a
marriage
counselor
after
the
date
of
the
separation
agreement
to
try
to
hold
the
marriage
together.
The
reason
for
the
separation
agreement
was
advice
she
received
from
her
psychiatrist
after
her
former
husband
had
attempted
suicide.
It
was
to
protect
her
children
and
herself
because
if
she
was
moving
out
she
would
need
one.
She
arrranged
for
her
lawyers
to
prepare
a
separation
agreement
and,
when
she
attended
his
office,
her
former
husband
was
there.
She
went
over
the
agreement
with
her
lawyer
and
signed
it.
She
stated
that,
as
she
and
her
former
husband
left
the
lawyer’s
office,
he
comforted
her
and
requested
that
she
not
tell
his
parents.
After
the
separation
agreement
was
signed
and
shortly
before
Easter,
the
family
went
to
her
parents
for
a
short
visit.
There
they
talked
things
over
and
it
was
decided
that
he
would
come
back
and
things
would
be
different.
According
to
her,
he
still
insisted
on
keeping
the
apartment,
and
he
did.
She
indicated
that,
to
know
where
she
stood,
she
wanted
money
and
the
former
husband
kept
on
paying
her
pursuant
to
the
separation
agreement.
After
the
divorce
action
was
instituted,
she
determined
that
his
access
to
the
children
would
be
every
other
week.
She
stated
that
her
1974
income
tax
return
was
prepared
by
her
former
husband
and
that
she
looked
it
over.
She
disagreed
with
the
quantum
of
the
money
reported
but
she
agreed
that
when
the
bill
came,
he
would
pay.
It
was
brought
out
on
cross-examination
of
the
former
wife
that
in
many
instances
she
was
a
little
inaccurate
with
the
truth.
On
the
affidavit
she
had
given
on
the
divorce
action,
when
she
made
an
application
for
credit
she
Stated
“we
were
separated’’.
She
stated
that
she
was
separated
when
she
was
not
separated.
The
former
wife
contended
that
the
former
husband
was
home
on
the
Easter
holiday
and
generally
home
on
long
weekends.
In
the
summer
of
1975
he
was
pretty
well
at
home.
At
Christmas
1974
the
former
husband
was
at
home
with
the
family.
In
1974,
according
to
her,
he
was
home
for
seven
days
in
May
or
June.
They
lived
together
clearly
for
thirty
days
in
the
early
part
of
1976.
When
asked
why
she
signed
a
note
with
respect
to
borrowing
money
for
livestock,
she
replied
that
he
was
her
husband
and
he
needed
money
for
the
cattle.
I
must
decide
whose
version
of
the
evidence
to
accept.
The
first
thing
that
strikes
me
is
that
if
there
has
been
a
complete
and
final
separation
between
the
former
husband
and
the
former
wife,
and
the
resumption
of
intermittent
sexual
relations
does
not
effect
a
reconciliation—What
weight
should
I
give
to
the
fact
that
the
former
husband
prepared
his
former
wife’s
income
tax
return
in
1975
for
the
1974
taxation
year?
The
former
husband
would
not
deny
that
he
had
so
prepared
it
but,
while
he
clearly
admitted
he
had
helped
others
and
he
could
have
helped
her,
he
did
not
admit
that
he
did.
The
facts
of
the
application
were
drawn
up
by
the
Minister
of
National
Revenue
with
the
facts
he
had
at
hand
although
some
were
not
completely
accurate.
One
fact
was:
“Flora
J
Yorgason
failed
to
include
any
part
of
the
amounts
paid
to
her
by
Vernon
W
Yorgason
in
her
income
for
the
1974,1975
and
1976
taxation
years.”
The
former
husband,
when
this
was
read
over
at
the
commencement
of
the
proceedings,
quickly
stated
that
that
was
incorrect
as
she
had
reported
some
income
in
1974.
Following
a
discussion
at
that
time
that
clause
was
changed
to
read
as
it
now
reads
in
the
application
set
forth
earlier.
How
would
the
former
husband
know
this?
It
could
only
be
because
he
prepared
her
income
tax
return.
The
former
husband
did
not
deny
nor
did
he
refer
to
the
faculty
parties
which
the
former
wife
said
they
attended.
I
must
make
a
decision
as
to
whose
evidence
I
prefer
and,
in
the
main,
I
accept
the
evidence
of
the
former
wife
and
reject
that
of
the
former
husband.
As
counsel
for
the
former
wife
put
it
in
making
her
submission
to
me:
‘‘Has
anyone
ever
heard
of
a
woman
raping
a
man?”
It
appears
that
the
resumption
of
sexual
relations
does
not
of
itself
mean
that
there
has
been
reconciliation
or
resumption
of
cohabitation.
There
is
no
doubt
that,
once
there
has
been
a
resumption
of
cohabitation,
the
separation
agreement
which
was
then
in
existence
terminates.
Many
cases
were
referred
to
and
I
believe
it
is
sufficient
to
refer
to
the
case
of
Elizabeth
J
Nauss
v
MNR,
38
Tax
ABC
230;
65
DTC
333,
a
decision
of
a
former
member
of
this
Board,
W
O
Davis,
QC,
and
to
the
headnote
in
the
case
of
Abercrombie
v
Abercrombie,
[1943]
2
All
ER
465
at
466
where
it
was
stated
with
respect
to
whether
or
not
there
was
a
resumption
of
cohabitation:
HELD:
it
is
not
essential
in
order
to
establish
a
resumption
of
cohabitation
that
the
parties
shall
have
lived
together
again
in
a
new
home.
Where
the
special
circumstances
of
the
parties
make
the
establishment
of
a
new
home
impossible,
there
may
be
a
resumption
of
cohabitation
by
a
resumption
of
intercourse.
In
the
present
case,
there
had
been
a
resumption
of
cohabitation.
Had
the
former
husband
resumed
cohabitation
with
his
former
wife?
Considering
that
he
admitted
he
returned
to
the
matrimonial
home
not
too
long
after
the
separation
agreement
was
signed;
considering
that
he
stayed
there
many
Saturday
nights
in
the
ensuing
two
years
(he
estimated
about
70
in
number);
considering
that
he
admitted
he
had
sexual
relations
with
his
former
wife
commencing,
according
to
him,
in
the
summer
of
1974;
considering
he
said
that
he
had
some
meals
with
the
family
at
the
common
table;
and
realizing
that,
since
he
was
a
hard
worker
(teaching
at
Atkinsons
College
and
holding
a
government
job),
it
was
not
illogical
for
him
to
have
an
apartment
in
town,
I
feel
that
the
former
husband
resumed
cohabitation
with
his
former
wife
before
the
end
of
the
1974
calendar
year
and,
consequently,
the
separation
agreement
became
a
nullity
before
the
end
of
the
1974
taxation
year.
The
result
is,
the
question
posed
in
paragraph
4
is
answered
by
saying
that
the
payments
made
by
Vernon
W
Yorgason
in
the
1974,
1975
and
1976
taxation
years
were
not
within
the
ambit
of
paragraph
60(b)
of
the
Income
Tax
Act
and
also
were
not
received
by
Flora
J
Yorgason
in
the
same
years
within
the
ambit
of
paragraph
56(1)(b)
of
the
said
Act.
Appeal
disallowed.
Email this Content