Strayer
J.A.
(orally)
(MacGuigan
J.A.
concurring):
I
am
of
the
view
that
the
applicant
has
not
demonstrated
any
reviewable
error
on
the
part
of
the
learned
Tax
Court
judge.
I
believe
he
was
right
in
concluding
that
the
payments
in
question
came
within
paragraph
60(b)
of
the
Income
Tax
Act
as
on
the
facts
of
this
case
the
respondent’s
former
spouse
retained
a
discretion
as
to
how
the
money
was
paid
pursuant
to
the
separation
agreement
and
judgment
and
thus
as
to
the
use
of
that
amount.
I
would
therefore
dismiss
the
appeal
and,
in
accordance
with
section
18.25
of
the
Tax
Court
Act,
award
costs
to
the
respondent.
Stone
J.A.
(dissenting):
I
am
not
persuaded
that
the
former
spouse
had
“discretion
as
to
the
use
of
the
amount”
at
the
time
she
received
it
within
the
meaning
of
the
“allowance”
definition
in
subsection
56(12)
of
the
Income
Tax
Act
,
when
it
is
clear
that
each
of
the
cheques
she
received
was
payable
to
a
third
party
and
could
be
applied
for
no
other
purpose,
even
though
it
could
be
said
that
she
had
discretion
to
use
each
amount
in
that
manner
or
to
return
it
to
the
appellant
and
demand
of
him
that
the
cheques
be
made
payable
to
her
in
accordance
with
the
court
order
and
separation
agreement.
I
am
not
satisfied
that
the
case
is
covered
by
subsection
60.1(1)
of
the
statute
as
neither
the
divorce
judgment
nor
the
separation
agreement
provides
for
these
amounts
to
be
paid
for
the
benefit
of
the
former
spouse
or
her
children.
Subsection
60.1
(2)
,
it
seems
to
me,
is
not
applicable
in
view
of
the
requirements
at
the
end
thereof.
I
would
accordingly
allow
the
application
and
set
aside
the
judgment
of
the
Tax
Court
of
Canada.
I
agree
with
my
colleagues,
however,
as
to
the
disposition
of
costs.
Appeal
dismissed.
separation
or
written
separation
agreement
from,
the
taxpayer’s
spouse
or
former
spouse
to
whom
the
taxpayer
was
required
to
make
the
payment
at
the
time
the
payment
was
made
and
throughout
the
remainder
of
the
year;
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