Words and Phrases - "separate and apart"
27 July 2010 External T.I. 2010-0364841E5 F - Questions relatives à une séparation
The correspondent and the correspondent’s wife separated (with a divorce decree to be issued shortly, but continued to live under the same roof but with no common social activities, taking of meals, sexual relations, or significant communication other than respecting their children (also under the same roof). CRA stated:
The courts have held that it is possible for two spouses to live separate and apart due to marriage breakdown, even if they still live under the same roof, in the following circumstances …:
- the spouses occupy separate bedrooms;
- the absence of sexual relations between the spouses;
- little, if any, communication between the spouses;
- no domestic services between the spouses;
- the spouses eat their meals separately;
- the spouses have no social activities in common.
… [T]he existence of a joint account and the payment of joint expenses does not prevent you and your spouse from living separate and apart due to the breakdown of your marriage on XXXXXXXXXX 2009.
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 63 - Subsection 63(3) - Supporting Person | no supporting person where two spouses lived separate and apart under same roof | 154 |
| Tax Topics - Income Tax Act - Section 118 - Subsection 118(1) - Paragraph 118(1)(b) | two separated spouses living under the same roof required to agree on which one claims the s. 118(1)(b) credit | 155 |
J.B. v. Agence du revenu du Québec, 2018 QCCQ 4200
The taxpayer`s relationship with her husband broke down in 2007, and in August 2007, her husband took the initiative to prepare in mangled English a written separation agreement that provided that he would transfer his 1/2 co-ownership interest in various of their co-owned properties in satisfaction of his support obligations. For more than a year thereafter he spent much of his time in the basement of their house, in order to ease the transition for their two children (one of them, autistic), in addition to staying with friends and his own family. In May 2008, the taxpayer arranged for the ½ co-ownership interests to be transferred to her. In March 2011, she obtained a divorce decree that confirmed the previous transfer of such properties to her in settlement of her support claims.
In finding that the equivalent of ITA s. 160(4) deemed the properties to have been transferred to the taxpayer for nil consideration, Dortélus J first found that the agreement drafted by the taxpayer’s husband qualified as a “written separation agreement,” even though it was not signed by the taxpayer, given that she had accepted it and they had acted upon it, with its essential terms being confirmed by the divorce judgment. He also found that from August on they had lived “separate and apart” notwithstanding the maintaining by him of a “pied à terre” in the basement for some time.