23. When is a Individual Living Abroad a Resident of Canada - Snow
The Snow decision of the TCC (2012 TCC 78) deals with the unusual situation where a Canadian living abroad is attempting to assert that they continued to be a resident of Canada. The taxpayer had moved to New Zealand with her husband while he took his masters degree. She continued to receive the Canada Child Tax Benefit and the Goods and Services Tax Credit while overseas. The Minister assessed the taxpayer to recover these amounts on the basis that she was a non-resident of Canada throughout the period they lived in New Zealand from 2003 to 2011.
Initially the taxpayer and her husband moved so that he could pursue a masters degree and at the time they always intended to return. After obtaining his masters degree three years after departing to New Zealand, they decided to stay so the huband could pursue his doctorate. He did so in 2011 and they then returned to Canada.
For most of this time, the taxpayer was receiving the Canada Child Tax Benefit and the Goods and Services Tax Credit. In 2010, the Minister determined that the taxpayer was not entitled to these benefits on the basis that she was not a resident of Canada. The Court determined that the taxpayer's stay in New Zealand was transitory while her husband pursued his masters degree. However, once he decided to pursue his doctorate at the end of 2006, the connection to New Zealand became more permanent and the taxpayer ceased to be a resident of Canada at that time.
The determination of residence is a mixed question of fact and law and this case just shows you how difficult it can be to determine where the line is between resident and non-resident status.