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A-532-80
The Queen (Appellant) (Defendant)
v.
Jean-Paul Gagnon (Respondent) (Plaintiff)
Court of Appeal, Pratte and Le Dain JJ. and Lalande D.J.—Montreal, October 2, 1981.
Income tax — Income calculation — Deductions — Appeal from Trial Judge's decision that the respondent could deduct monthly payments to his former wife — Decree absolute provided that payments represented the repayment in capital and interest of two hypothecs and taxes on an immovable property — Whether payments constituted payment of an allowance pursuant to para. 60(b) of the Income Tax Act — Appeal allowed — Former wife was entitled to payments only if she paid the sums owing under the deeds of hypothec — Income Tax Act, S.C. 1970-71-72, c. 63, s. 60(b).
R. v. Pascoe [1976] 1 F.C. 372, agreed with.
APPEAL. COUNSEL:
Wilfrid Lefebvre and Jacques Côté for appel lant (defendant).
Claude A. Blanchard for respondent (plain- tiff).
SOLICITORS:
Deputy Attorney General of Canada for appellant (defendant).
Sirois, Blanchard, Beaudet, Watters & Lamontagne, Quebec City, for respondent (plaintiff).
The following is the English version of the reasons for judgment delivered orally by
PRATTE J.: This appeal is from a judgment of the Trial Division' which decided that in comput ing his taxable income for the 1974, 1975 and 1976 taxation years, the respondent could deduct sums of $360 per month that he had paid to his former wife pursuant to a decree absolute of divorce.
' [1981] 1 F.C. 249.
This divorce decree was granted on March 29, 1972. Confirming an agreement between the par ties, it provided that the wife accepted, in payment of her share of the community of property,
[TRANSLATION] an immovable having the municipal address 2620 La Picardière Street, City of Laval, district of Montreal, and being her present residence.
This decree also ordered the parties to comply with the agreement between them, which included the following clauses reproduced in the decree:
[TRANSLATION] As alimentary pension for herself and for her children, petitioner agrees to pay and respondent accepts
1. A monthly amount payable in advance on the first day of each month at the residence of respondent of $300.00 Can.
2. For the benefit of respondent, petitioner will pay the monthly payments due or to become due with respect to the immovable which becomes the property of the respondent, the obligation with respect to the said monthly payments being more fully described in the agreement; the amount of the said monthly payments is at present $360.00 and can vary as foreseen in the said contract, but represents the repayment in capital and interest of two hypothecs described therein as well as the repayment by monthly payments of municipal and school taxes affecting the said immovable, payable on the first of each month, directly to respondent, commencing on June 1, 1971;
The sums of $360, which the judgment a quo held to be deductible, were paid by respondent under the terms of paragraph 2 of the above-cited passage from the divorce decree.
Under paragraph 60(b) of the Act 2 , respondent could deduct these sums in computing his income if he had paid them to his wife "as alimony or other allowance payable on a periodic basis".
It seems clear to me that the amounts in ques tion were not paid as "alimony" in the sense in which this expression is used in paragraph 60(b). In that provision the expression has the restricted meaning of the allowance which a spouse must pay to his spouse for the duration of their marriage. The only issue to be resolved is therefore whether payment of the $360 sums constituted the payment of an allowance.
2 Income Tax Act, R.S.C. 1952, c. 148, as amended by S.C. 1970-71-72, c. 63, s. 1.
In The Queen v. Pascoe' the Court gave the following definition of the term "allowance" [at page 374]:
An allowance is, in our view, a limited predetermined sum of money paid to enable the recipient to provide for certain kinds of expense; its amount is determined in advance and, once paid, it is at the complete disposition of the recipient who is not required to account for it. A payment in satisfaction of an obligation to indemnify or reimburse someone or to defray his or her actual expenses is not an allowance; it is not a sum allowed to the recipient to be applied in his or her discretion to certain kinds of expense.
In the case at bar the Trial Judge held that payment of the sums in question constituted pay ment of an allowance within the meaning of Pascoe, because he was of the view that the sums were at the complete disposition of respondent's former spouse, who was not required to account for them. I cannot share this view. In my opinion respondent's former spouse was entitled to these payments of $360 only if she paid the sums owing under the deeds of hypothec registered against her property. This was consequently not an allowance within the meaning of Pascoe.
For these reasons I would allow the appeal, set aside the judgment of the Trial Division and dis miss the respondent's action. In accordance with the suggestion made by counsel for the appellant, I shall not award any costs either at trial or on appeal.
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LE DAIN J. concurred.
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LALANDE D.J. concurred. 3 [1976] 1 F.C. 372.
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