Sheila Pope v. Minister of National Revenue, [1984] CTC 2255

Goetz, TCJ [ORALLY]:—This is an appeal by the appellant with respect to an assessment for her 1980 taxation year. The issue is whether the appellant is entitled to deduct the sum of $2,530 pursuant to the provisions of paragraph 109(1)(b) of the Income Tax Act, SC 1970-71-72, c 63, as amended, with respect to the support of her daughter, Jill Watson, as the appellant claimed that she was a married person but was neither supported by nor lived with her spouse during the said taxation years. Paragraph 109( 1 )(b) of the Act reads as follows:

109.(1) For the purpose of computing the taxable income of an individual for a taxation year, there may be deducted from his income for the year such of the following amounts as are applicable:

(b) in the case of an individual not entitled to a deduction under paragraph (a) who, during the year,

(i) was an unmarried person or a married person who did not support or live with his spouse and was not supported by his spouse, and

(ii) whether by himself or jointly with one or more other persons, maintained a self-contained domestic establishment (in which the individual lived) and actually supported therein a person who, during the year, was

(A) wholly dependent for support upon, and

(B) connected, by blood relationship, marriage or adoption, with the taxpayer, or the taxpayer and such one or more other persons, as the case may be,

an amount equal to the aggregate of

(iii) $1,600, and

(iv) $1,400 less the amount, if any, by which the income for the year of the dependent person exceeds $300;

The issue resolves itself to the interpretation of the words “live with” as set out in paragraph 109(l)(b) of the Act.

Facts

The appellant is a self-supporting manageress and is married to one William Pope who was her former professor at university. I believe the appellant when she says that she was not supported by her husband and that she had ample funds to maintain herself and her child. She purchased her own home and has a mortgage thereon, while her husband resides on a farm at Uxbridge, some 40 miles from Toronto where the appellant lives. Numerous telephone bills show the constant communication between husband and wife. It was disclosed at the hearing that the appellant and her husband lived together for at least two days each week-end.

Findings

I do not think if I suggested to the appellant that she was separated from her husband that she would agree with me. Both husband and wife agreed that the arrangement as it is now works out beautifully. Men and women who are married may physically live in the same house month after month and really not be living with one another at all. In the instant case I find quite clearly from the evidence adduced that there was indeed a viable marriage existing between Mr Pope and the appellant. The appellant was described as independent, self- determined and a successful woman. The viability of their marriage was ensured by the weekly visits by the appellant to live with her husband at Uxbridge. In the appellant’s income tax return, she refers to herself as being married.

Though the relation was strange, I find that the appellant had a suitable marriage and although she did not physically live with her husband seven days a week. I am sure that the week-end visits maintained the viability of their marriage. The appellant is competent, intelligent and, obviously, a good mother and wishes to be her own person. Mr Pope is quite satisfied with this marriage arrangement. In light of Mr Pope’s testimony, I will put the interpretation of the words “live with’’ on the facts of this case that indeed the appellant, as Mr Pope’s spouse, lived with him, albeit only two days a week, but she was a faithful wife and he was a faithful husband. There was a ritual that they followed which constitutes a very vital part of the appellant’s marriage. If the appellant wishes to be independent minded and self-supportive, that is her privilege and quite commendable, but I regret that on the facts before me she does not come strictly within the terms of paragraph 109(l)(b) of the Act and I find that the appellant “lived with” her husband. For these reasons, I dismiss the appeal.

Appeal dismissed.