St-Onge
J.T.C.C.:—
The
appeal
of
Michèle
Bolduc
was
heard
on
May
26,
1994
in
the
City
of
Québec,
Quebec,
and
the
point
for
determination
is
whether
the
amount
revised
to
$194.45
for
the
one-year
period
starting
in
July
1993
until
June
1994
was
correct
in
accordance
with
section
122.61
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
“Act”).
In
her
reply
to
the
notice
of
appeal,
the
respondent
alleged
the
following:
3.
On
July
20,
1993,
the
Minister
of
National
Revenue
(the
Minister)
issued
a
notice
of
child
tax
benefit
to
the
appellant,
revising
the
monthly
child
tax
benefit
to
$16.25
for
July
1993
and
$16.20
for
each
of
the
months
from
August
1993
to
June
1994,
taking
into
account
the
de
facto
spouse’s
net
income
in
the
total
net
family
income.
4.
In
particular,
the
Minister
took
the
following
facts
for
granted
in
order
to
make
this
notice
of
child
tax
benefit:
(a)
the
appellant
lived
with
her
de
facto
spouse,
Charles
Lasnier,
during
the
1992
taxation
year;
(b)
the
net
incomes
of
each
of
the
de
facto
spouses
were
reported
in
their
income
tax
returns
for
the
1992
taxation
year
and
were
as
follows:
(i)
appellant:
$29,204
(ii)
Charles
Lasnier:
$30,208
Total
net
income:
$59,412
(c)
taking
into
account
that
the
total
net
income
of
the
de
facto
spouses
serves
as
the
basis
for
calculating
the
child
tax
benefit,
the
Minister
revised
the
said
child
tax
benefit
to
a
total
sum
of
$194.45
for
the
year,
that
is
to
say
for
the
months
from
July
1993
to
June
1994,
calculated
in
the
following
manner:
Basic
benefit
for
two
children:
$1,869
Less:
Reduction
of
benefit
Net
family
income:
$59,412
Less:
Basic
amount:
$25,921
Net
family
income
exceeding
basic
amount:
$33,491
Reduction
of
benefit
5%
of
last
amount:
$1,674.45
Revised
benefit:
$
194.45
6.
He
relies
in
particular
on
sections
122.6
to
122.64
of
the
Income
Tax
Act
as
amended
and
applicable
to
the
calculation
of
the
child
tax
benefit
for
the
months
from
July
1993
to
June
1994.
7.
He
contends
that
the
net
income
of
the
de
facto
spouse,
Charles
Lasnier,
in
the
amount
of
$30,208
for
the
1992
taxation
year
was
correctly
included
in
the
amended
income
for
the
purposes
of
calculating
the
child
tax
benefit
within
the
meaning
of
section
122.6
of
the
Acct.
8.
He
contends
that
the
child
tax
benefit
was
correctly
revised
to
$1,945.45
[sic]
for
the
one-year
period
starting
in
July
1993
until
June
1994,
in
accordance
with
subsection
122.61(1)
of
the
Act.
[Translation.]
At
the
hearing,
the
appellant
admitted
subparagraph
4
with
the
exception
of
the
expression
“de
facto
spouse”.
She
then
read
her
pleading
as
follows:
I
am
here
before
you
today
to
dispute
the
status
of
de
facto
spouse
which
Revenue
Canada
attributed
to
me
for
the
1992
taxation
year.
Following
the
evaluation
made
of
my
file,
the
officers
who
processed
my
return
classified
me
as
the
de
facto
spouse
of
Charles
Lasnier.
The
definition
of
de
facto
spouse
given
by
Revenue
Canada
provides
that
a
person
must
live
with
another
person
of
the
opposite
sex
as
husband
and
wife
for
a
period
of
at
least
12
consecutive
months
if
he
has
not
had
a
child
from
that
union.
However,
it
is
specifically
this
definition
which
Revenue
Canada
has
invoked
in
order
to
include
the
income
of
Charles
Lasnier
in
calculating
my
“child
tax
benefit”.
I
wish
to
tell
you
that
I
do
not
agree
with
this
interpretation.
I
consider
that
I
am
not
living
with
Charles
Lasnier
as
husband
and
wife,
despite
the
fact
that
he
lives
at
the
same
address
as
mine.
Charles
Lasnier
pays
his
share
of
food,
housing
expenses
and
even
electricity
in
a
proportion
corresponding
to
his
actual
consumption.
This
agreement
was
made
in
writing.
A
copy
of
which
I
submit
to
you....
I
have
not
granted
him
parental
authority
over
my
children,
who
are
from
a
past
marriage
and
for
whom
I
have
obtained
a
judgment
from
the
Court
to
obtain
alimony
from
my
former
husband.
A
copy
of
which
I
submit
to
you....
He
pays
no
expenses
for
the
benefit
of
my
children
or
myself.
And
if
Charles
Lasnier
left,
my
financial
liabilities
would
be
neither
increased
nor
decreased.
He
has
no
obligation,
with
or
without
my
participation,
to
support
my
family
as
in
a
marriage
within
the
meaning
given
in
the
Civil
Code
of
Quebec
(according
to
article
394).
[Translation.]
Counsel
for
the
respondent,
for
his
part,
argued
that
the
revised
amount
for
the
period
in
appeal
was
correctly
calculated
in
accordance
with
section
122.61
of
the
Income
Tax
Act
and
that
the
said
Act
clearly
states
that
a
12-month
cohabitation
was
sufficient
to
qualify
the
appellant
and
Mr.
Lasnier
as
de
facto
spouses.
He
closed
by
saying
that
the
appellant
herself
had
referred
to
herself
as
a
de
facto
spouse
in
her
own
income
tax
return
for
the
1992
taxation
year.
Conclusion
The
appellant
referred
to
herself
as
a
de
facto
spouse
in
her
own
income
tax
return
for
the
1992
taxation
year
and
admitted
that
she
had
lived
with
Charles
Lasnier
during
the
said
year.
There
is
no
doubt
that
she
was
a
de
facto
spouse
during
the
period
in
question.
However,
the
point
at
issue
is
whether
the
net
income
of
the
de
facto
spouse,
Charles
Lasnier,
in
the
amount
of
$30,208
for
the
1992
taxation
year
enters
into
the
calculation
of
the
amended
income
with
respect
to
the
child
tax
credit
to
which
the
appellant
was
entitled
for
the
months
from
July
1993
to
June
1994.
The
relevant
sections
are
as
follows.
122.61(1)
Deemed
overpayment
-
Where
a
person
and,
where
the
Minister
so
demands,
the
person’s
cohabiting
spouse
at
the
end
of
a
taxation
year
have
filed
a
return
of
income
for
the
year,
an
overpayment
on
account
of
the
person’s
liability
under
this
Part
for
the
year
shall
be
deemed
to
have
arisen
during
a
month
in
relation
to
which
the
year
is
the
base
taxation
year,
equal
to
the
amount
determined
by
the
formula....
122.6
Cohabiting
spouse
-
“Cohabiting
spouse”
of
an
individual
at
any
time
means
the
person
who
at
that
time
is
the
individual’s
spouse
and
who
is
not
at
that
time
living
separate
and
apart
from
the
individual
and,
for
the
purpose
of
this
definition,
a
person
shall
not
be
considered
to
be
living
separate
and
apart
from
an
individual
at
any
time
unless
they
were
living
separate
and
apart
at
that
time,
because
of
a
breakdown
of
their
marriage,
for
a
period
of
at
least
90
days
that
includes
that
time;
252(4)
Spouse
of
a
taxpay
er.-
(a)
words
referring
to
a
spouse
at
any
time
of
a
taxpayer
include
the
person
of
the
opposite
sex
who
cohabits
at
that
time
with
the
taxpayer
in
a
conjugal
relationship
and
(i)
has
so
cohabited
with
the
taxpayer
throughout
a
12-month
period
ending
before
that
time,
or
(ii)
is
a
parent
of
a
child
of
whom
the
taxpayer
is
a
parent
and,
for
the
purposes
of
this
paragraph,
where
at
any
time
the
taxpayer
and
the
person
cohabit
in
a
conjugal
relationship,
they
shall,
at
any
particular
time
after
that
time,
be
deemed
to
be
cohabiting
in
a
conjugal
relationship
unless
they
were
not
cohabiting
at
the
particular
time
for
a
period
of
at
least
90
days
that
includes
the
particular
time
because
of
a
breakdown
of
their
conjugal
relationship;
According
to
these
sections,
a
cohabiting
spouse
means
a
person
who
is
not
living
separate
and
apart
or
who
was
living
separate
or
apart
because
of
a
breakdown
of
their
marriage
for
a
period
of
less
than
90
days,
and
the
spouse
of
a
taxpayer
means
a
spouse
who
cohabits
with
the
taxpayer
in
a
conjugal
relationship
for
at
least
12
months
or
who
cohabits
with
the
taxpayer
at
that
time
and
is
the
father
or
mother
of
a
child
of
the
taxpayer.
In
the
latter
case,
the
12-month
period
is
not
required.
Virtually
the
same
provisions
appear
in
the
last
two
sections,
with
the
difference
that,
in
the
first
case,
the
word
marriage
is
mentioned
and,
in
the
second
case,
the
expression
“in
a
conjugal
relationship”.
To
sum
up,
spouses
living
in
a
conjugal
relationship
are
treated
in
the
same
way
as
married
spouses,
and
there
is
nothing
in
the
Income
Tax
Act
permitting
them
to
have
agreements
between
them
that
would
prevent
the
Minister
from
applying
the
said
sections.
In
the
instant
case,
the
12-month
period
of
cohabitation
with
a
person
of
the
opposite
sex
is
sufficient
to
enable
the
Minister
to
add
the
income
of
a
spouse
living
in
a
conjugal
relationship
to
that
of
a
taxpayer
for
the
purposes
of
calculating
the
family
income
and
determining
whether
there
is
an
overpayment.
The
appeal
is
therefore
dismissed.
Appeal
dismissed.
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