" The onus is on the Appellant to satisfy me on the balance of probabilities that in September 2009 he agreed to acquire 50 Minerva Avenue with the intent it would be his family’s primary place of residence. As Former Chief Justice Bowman stated in Coburn Realty Ltd. v Canada:
"'10. Statements by a taxpayer of his or her subjective purpose and intent are not necessarily in every case the most reliable basis upon which such a question can be determined. The actual use is frequently the best evidence of the purpose of the acquisition....'
" Taking a few belongings (mattresses and towel for example), leaving behind virtually all of your other belongings and furnishings in the family home, does not constitute actual use of 50 Minerva Avenue as the primary place of residence for the family. At best, I would describe Mr. Kandiah’s and his daughter’s arrangement as camping, not residing – certainly not residing as a primary place of residence."
There can be "frustrating events" that prevent moving in:
" It becomes necessary then to determine whether actual use as a primary residence was frustrated by surrounding circumstances. Mr. Kandiah’s counsel argues that the inability to sell 132 Kearney Drive frustrated the intention to acquire 50 Minerva Avenue as the primary residence. In cases where a taxpayer could not take up actual residence in a new home, there has been a clear and understandable frustrating event (see for example the cases of Boucher v Canada, where a spouse could not find work, Gagné v Canada, where the frustrating event was for medical reasons and Hamel v Canada, where there were family integration issues). Is an inability to sell one property such a frustration event? In this case, I do not believe so ..."
See Kandiah v. The Queen, 2014 TCC (C Miller)