Words and Phrases - "ordinarily resident"
Mallett v. The Queen, 92 DTC 6537, [1992] 2 CTC 229 (FCTD)
A government employee (who was deemed under s. 250(1) to be resident in Canada) was told in the spring of 1985 that she would be transferred from her position in the Canadian embassy in Paris to a position in Ottawa. In August 1985 she married a man whose home was in England and from that time until her move to Ottawa in December 1985, she commuted between Paris and England. In finding that she was not ordinarily resident in England prior to her move to Ottawa, McGillis J. noted that "to the extent that she spent time at the home in England, she only resided there casually until her move to her new home in Ottawa" (p. 6539).
Thomson v. Minister of National Revenue, 2 DTC 812, [1946] S.C.R. 209
For a number of years the taxpayer spent between 81 and 159 days in Canada each year, with most of the balance spent in the United States. The taxpayer argued that he was not "ordinarily resident" for the purposes of what was then s. 9 (now reformulated in ss. 2(1) and 250(1)).
Rand J. set out the scope of "residence" at pp. 224-25:
For the purposes of income tax legislation, it must be assumed that every person has at all times a residence. It is not necessary to this that he should have a home or a particular place of abode or even a shelter. He may sleep in the open. It is important only to ascertain the spatial bounds within which he spends his life or to which his ordered or customary living is related.
The Court rejected the taxpayer's appeal. Kerwin J. at p. 214:
The appellant seeks to make himself a sojourner as he carefully remained in Canada for a period or periods amounting to less than 183 days during each year. This attempt fails. The family ties of his wife, if not of himself, the erection of a substantial house, the retention of the servants, together with all the surrounding circumstances, make it clear to me that his occupancy of the house and his activities in Canada comprised more than a mere temporary stay therein.
Estey J. also stated for the majority at p. 233 that, throughout the Income Tax Act, "during" means "in the course of."