Date: 20011128
Docket: 2001-3029-IT-I
BETWEEN:
JEFFERY DAVID ROBY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor Judgment
Bowman, A.C.J.
[1] These appeals are from assessments for the appellant's 1997, 1998 and 1999 taxation years. By those assessments the Minister denied to the appellant certain credits and expenses the entitlement to which is dependent upon the appellant's marital status. Specifically:
1. The equivalent-to-spouse amount (paragraph 118(1)(b)).
2. Child tax benefits (section 122.6).
3. GST credit (section 122.5).
4. Child care expenses (subsection 63(2)).
[2] The appellant's right to claim these credits or to deduct these expenses is dependent upon his living separate and apart from his spouse by reason of the breakdown of his marriage or similar domestic arrangement. This element is common to all four of the provisions listed above although the application differs somewhat in detail with respect to the period in which the 90 days fall. These details are not germane to my decision here because I have concluded that at no time in the three years in question was the appellant living separate and apart from his spouse by reason of the breakdown of his marriage or, indeed for any other reason.
[3] The appellant and his wife Genyne Roby were married on July 28, 1990. The appellant is a police officer and his wife is a teacher. They had three children, Natalie and Annalise, twins born February 3, 1995, and Byron, born September 28, 1993.
[4] They moved to Moosonee, Ontario in 1995 where they lived until April or May of 1998 when they moved to London, Ontario. In Moosonee they lived in a government owned house. In London they lived in a house purchased by them but registered in the appellant's name.
[5] In 1995 or 1996, after the birth of the twins, they started to have marital problems. The reasons for the problems are not particularly germane to the determination that has to be made here. Whether the difficulties had as their genesis the stresses of the appellant's job as a police officer in a remote northern community, differences in parenting styles, inability of the spouses to communicate, tensions between two highly controlling people, or a combination of all of these and other factors, is a question best left to psychologists and family counsellors. Whatever the reasons, they all add up to a basic incompatibility and a marriage that was moving toward coming apart at the seams.
[6] The appellant testified that in Moosonee he slept in the same room with Byron and his wife slept with the twins in another room. The appellant testified that in London he slept in the basement. His spouse agrees that this happened but that he also slept with her. Mrs. Roby testified that in the years in question she was constantly trying to keep the marriage together. The appellant stated that he stayed with her and did not move out because he wanted to be with the children. I observe in passing that both spouses appeared to me to be devoted to their children and responsible and loving parents.
[7] In Kelner v. R., [1996] 1 C.T.C. 2687, I reviewed the case law in this area and concluded that it was possible for spouses to live "separate and apart" even where they were living under the same roof. This is an unassailable proposition as a matter of law, but as a matter of fact in any given case the evidence should be convincing. Campbell J. in Rangwala v. R., [2000] 4 C.T.C. 2430, and Raghavan v. R., [2001] 3 C.T.C. 2218, reached the same conclusion.
[8] As good a starting point as any is the decision of Holland J. in Cooper v. Cooper, (1972) 10 R.F.L. 184 (Ont.H.C.) where he said at p. 187:
Can it be said that the parties in this case are living separate and apart? Certainly spouses living under the same roof may well in fact be living separate and apart from each other. The problem has often been considered in actions brought under s. 4(1)(e)(i) of the Divorce Act and, generally speaking, a finding that the parties were living separate and apart from each other has been made where the following circumstances were present:
(i) Spouses occupying separate bedrooms.
(ii) Absence of sexual relations.
(iii) Little, if any, communication between spouses.
(iv) Wife performing no domestic services for husband.
(v) Eating meals separately.
(vi) No social activities together.
See Rushton v. Rushton (1968), 1 R.F.L. 215, 66 W.W.R. 764, 2 D.L.R. (3d) 25 (B.C.); Smith v. Smith (1970), 2 R.F.L. 214, 74 W.W.R. 462 (B.C.); Mayberry v. Mayberry, [1971] 2 O.R. 378, 2 R.F.L. 395, 18 D.L.R. (3d) 45 (C.A.).
[9] Both Campbell J. and I took those criteria as useful guidelines, although they are by no means exhaustive and no single criterion is determinative. I tend to agree with what was said by Wilson J. in Macmillan-Dekker v. Dekker, August 4, 2000, docket 99-FA-8392, quoted by Campbell J. in Rangwala at pp. 2435-2436:
Based on a synthesis of prior case law, the court established a list of seven factors to be used to determine whether or not a conjugal relationship exists or existed. These organising questions permit a trial judge to view the relationship as a whole in order to determine whether the parties lived together as spouses. Reference to these seven factors will prevent an inappropriate emphasis on one factor to the exclusion of others and ensure that all relevant factors are considered.
...
I conclude that there is no single, static model of a conjugal relationship, or of marriage. Rather, there are a cluster of factors which reflect the diversity of conjugal and marriage relationships that exist in modern Canadian society. Each case must be examined in light of its own unique objective facts.
[10] Bearing in mind then that no single factor should predominate, and that it is the overall picture that must ultimately govern, can it be said that these spouses were living separate and apart because of the breakdown of their marriage?
1. Did they occupy separate bedrooms? I find that they did so most of the time but I am not persuaded that they always did.
2. Sexual relations continued between them, although the evidence is contradictory about the frequency. The appellant admitted to four times in 1998 to 2000. Mrs. Roby said they had sexual intercourse "regularly" in the period in question. I doubt that any useful purpose would be served by my attempting to decide between these conflicting versions of their sexual activity. Mr. Roby argued that separated or divorced couples often have sexual intercourse after separation or divorce. I accept that this may well be so, although I have no independent evidence of the practice. It is, however, one thing, when couples are safely separated or divorced and living in separate homes under a valid separation agreement or order or a divorce decree, for them to have intercourse. The occasional lapse will probably not jeopardize their separate status. Where they are living under the same roof and one of them is contending, as here, that they are living separate and apart because of a breakdown of their marriage, such activity casts some doubt on both the separation of the spouses and the breakdown of the marriage. The more prudent course in these circumstances would be complete abstinence, at least as between the spouses.
3. The spouse's communication with each other was limited, but it was a good deal more than one would normally expect from separated persons. They talked about the children and other matters of common domestic interest. They exchanged expensive Christmas gifts in 1999. The appellant gave his wife diamond earrings and she gave him a leather coat. Mrs. Roby gave the appellant $2,500 in 1998 or 1999 to go on holidays to England. This is not the sort of thing separated and estranged spouses do.
4. The spouses shared domestic duties. Mrs. Roby shovelled the snow and cut the grass. They both bought groceries. They both cooked. They shared responsibility for the children.
5. They often did not eat together, to some extent because the appellant worked shifts. They both ate in the kitchen.
6. Their social activities together were limited, but not non-existent. They went to Toronto together and visited friends. They attended special occasions together such as Thanksgiving, birthday parties and Christmas.
[11] To these considerations I would add that their financial affairs were intertwined. Mr. Roby paid most of the bills. There was no separation of financial responsibilities.
[12] They had the same telephone. This factor in itself is of little weight.
[13] Mrs. Roby is the beneficiary under Mr. Roby's pension plan, RRSP and life insurance. This factor in itself, while it cannot be ignored, is not of much weight. Mr. Roby struck me as a responsible person and I would not draw an adverse inference from his wishing to ensure the continued well-being of his wife and children.
[14] Mr. Roby relied on a document called an Agreement of Separation of Marriage. The Crown questioned its authenticity and legal effectiveness. Whatever might be its validity, and even if one accepts that it is effective according to its terms, it does nothing to support the appellant's case. It is in many ways a most peculiar document. It does not provide that they will live separately. It states in clause VI that "Both parties agree to cohabitate at the current residence". It also provides that if either party no longer feels that cohabitation is favourable they can tell the other party in writing by registered mail. Since they agreed to live together I should have thought that mentioning it over breakfast would be enough.
[15] Clause III provides that Genyne will maintain principal custody of the two daughters and the appellant will maintain principal custody of Byron. Elaborate arrangements are set out for visitation rights. Since they were all living together this boilerplate is a little pointless. I think the prospect of a tax benefit was an important motivating factor.
[16] Taking all the facts into account I see this relationship in 1997, 1998 and 1999 as essentially a bad one, but I do not think they were living separate and apart nor do I see the marriage as having broken down, although it was unquestionably fragile.
[17] Mr. Roby argued that he saw the marriage as being over in 1997 and he wanted out, but that he had to stay around because of the children since he was afraid his wife would never let him see them again. Accepting this statement at its face value it scarcely helps his case. It merely supports the position that they were not separated.
[18] The respondent subpoenaed Mrs. Roby but Mr. Roby called her as his witness. Since we were in the informal procedure I gave him a good deal of latitude in the manner of asking questions. Indeed much of his examination-in-chief consisted of cross-examination and leading questions. Nonetheless I do not think the appellant elicited a single statement from his wife that supported his position. Virtually all her answers supported the Crown.
[19] The appeals are dismissed.
Signed at Ottawa, Canada, this 28th day of November 2001.
"D.G.H. Bowman"
A.C.J.
COURT FILE NO.: 2001-3029(IT)I
STYLE OF CAUSE: Between Jeffery David Roby and
Her Majesty The Queen
PLACE OF HEARING: London, Ontario
DATE OF HEARING: November 20, 2001
REASONS FOR JUDGMENT BY: The Honourable D.G.H. Bowman
Associate Chief Judge
DATE OF JUDGMENT: November 28, 2001
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Ifeanyi Nwachukwu, Esq.
COUNSEL OF RECORD:
For the Appellant:
Name: --
Firm: --
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-3029(IT)I
BETWEEN:
JEFFERY DAVID ROBY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeals heard on November 20, 2001, at London, Ontario, by
The Honourable D.G.H. Bowman
Associate Chief Judge
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Ifeanyi Nwachukwu, Esq.
JUDGMENT
It is ordered that the appeals from assessments made under the Income Tax Act for the 1997, 1998 and 1999 taxation years be dismissed.
Signed at Ottawa, Canada, this 28th day of November 2001.
|
"D.G.H. Bowman" |
A.C.J.