Martin,
J.:
—The
plaintiff
taxpayer,
Douglas
Marmaduke
Caston,
appeals
the
defendant's
reassessment
of
his
taxable
income
for
his
1982
taxation
year
whereby
the
defendant
disallowed
the
sum
of
$6000
alimony
paid
by
Caston
to
his
wife
and
claimed
by
him
as
a
deduction
pursuant
to
paragraphs
60(b)
and
60(c)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
as
amended
by
section
1
of
chapter
63,
S.C.
1970-71-72.
In
the
result
the
defendant
assessed
an
additional
tax
of
$2718.74
against
Caston.
Paragraphs
60(b)
and
60(c)
of
the
Income
Tax
Act
provide
for
the
deduction
from
a
taxpayer's
taxable
income
of
amounts
in
the
nature
of
alimony
or
maintenance
provided
they
are
paid,
among
other
conditions,
”.
.
.
pursuant
to
a
decree,
order
or
judgment
of
a
competent
tribunal
.
.
."
in
the
case
of
alimony,
and
”.
.
.
pursuant
to
an
order
of
a
competent
tribunal,
.
.
."
in
the
case
of
maintenance.
The
only
issue
in
this
case
is
whether
the
$6000
payment
was
made
pursuant
to
a
decree,
order
or
judgment
of
a
competent
tribunal.
In
this
respect
the
facts
are
set
out
in
an
agreed
statement
of
facts
in
the
following
terms,
in
which
I
have
deleted
the
references
to
the
supporting
documentation:
The
parties
hereto,
by
their
respective
solicitors,
hereby
admit
the
following
facts
provided
that
such
admission
is
made
for
the
purpose
of
this
action
only
and
may
not
be
used
against
either
party
on
any
other
occasion
or
by
any
other
party.
1.
The
plaintiff
separated
from
his
spouse,
Joan
Kathlen
Caston,
on
May
24,
1981.
2.
Commencing
in
April
of
1981,
the
plaintiff
paid
Mrs.
Caston
interim
alimony
and
maintenance
in
the
amount
of
$500.00
per
month.
3.
On
August
28,
1981,
Mrs.
Caston
filed
with
the
Court
of
Queen's
Bench
of
Alberta
an
Originating
Notice
of
Motion
under
the
Domestic
Relationship
Act
and
supporting
Affidavit,
returnable
on
September
15,
1981,
in
which
it
was
indicated
that
an
Application
would
be
made
for
an
Order
granting
maintenance
for
her
and
the
two
infant
children
of
the
marriage
in
the
amount
of
$750.00
per
month.
4.
The
plaintiff
filed
an
Affidavit
in
opposition
to
Mrs.
Caston's
application
for
interim
alimony
or
maintenance
on
September
16,
1981.
5.
The
Application,
set
for
September
15,
1981,
was
adjourned
sine
die.
6.
On
September
21,
1981,
counsel
for
Mrs.
Caston
wrote
to
counsel
for
the
Plaintiff
indicating
that
Mrs.
Caston
would
accept
monthly
maintenance
payments
in
the
amount
of
$625.
7.
On
September
28,
1981,
counsel
for
the
Plaintiff
corresponded
with
both
the
Plaintiff
and
with
Mrs.
Caston's
counsel.
8.
On
September
29,
1981,
counsel
for
the
Plaintiff
corresponded
with
the
Plaintiff.
9.
On
October
14,
1981,
counsel
for
the
Plaintiff
corresponded
with
counsel
for
Mrs.
Caston
wherein
the
Plaintiff
agreed
to
continue
making
a
$500
payment
per
month
provided
that
“it
is
agreed
that
it
is
being
paid
pursuant
to
a
written
demand
so
that
he
has
the
benefit
of
the
provisions
of
the
Income
Tax
Act.
10.
Counsel
for
Mrs.
Caston
subsequently
agreed
orally
to
the
proposals
set
forth
in
the
letter
dated
October
14,
1981.
11.
The
plaintiff
was
never
in
arrears
or
in
default
in
making
monthly
payments
to
Mrs.
Caston.
Summary
of
Plaintiff's
and
Defendant's
Position
12.
The
Plaintiff's
position
is
that,
by
virtue
of
the
interpretation
of
Rule
396
of
the
Alberta
Rules
of
Court,
there
was
a
Court
Order,
but
it
could
not
be
entered
unless
there
was
a
default.
13.
The
Defendant's
position
is
that
there
was
no
Court
Order,
in
fact
or
by
operation
of
law.
The
payment
of
$500
per
month
was
arrived
at
pursuant
to
Rule
396
of
the
Alberta
Rules
of
Court,
specifically
pursuant
to
subsection
396(3),
which
is
in
the
following
terms:
INTERIM
ALIMONY
396.(1)
Before
any
motion
is
made
for
interim
alimony
or
costs
(a)
the
plaintiff
shall
serve
notice
on
the
defendant
of
the
amounts
demanded
by
her,
specifying
the
time
and
place
for
payment
thereof,
and
(b)
the
defendant
may
give
notice
in
writing
that
he
submits
to
pay
the
interim
alimony
and
costs
so
demanded
by
the
plaintiff
and
in
that
case
no
order
shall
be
taken
out
until
there
has
been
a
default
in
payment.
(2)
In
case
of
default
in
payment,
upon
affidavits
being
filed
verifying
the
statement
of
claim,
the
notice
of
submission
and
the
default,
an
order
for
the
payment
of
the
sum
demanded
shall
be
issued
on
praecipe.
(3)
The
defendant
may
give
notice
in
writing
that
he
submits
to
pay
such
less
sum
as
he
considers
proper
and
names
in
his
notice;
and
in
the
event
of
the
plaintiff
accepting
it
the
defendant
shall
thereafter
pay
the
sum
so
offered
as
interim
alimony
and
no
order
shall
be
taken
out
until
there
has
been
a
default
in
payment.
(4)
Where
the
plaintiff
does
not
accept
the
amount
offered
and
it
is
found
to
be
reasonable,
upon
a
motion
for
interim
alimony,
no
order
shall
be
taken
out
until
there
has
been
a
default
in
payment.
As
already
noted
in
the
agreed
statement
of
facts,
the
plaintiff
was
never
in
arrears
or
in
default
of
the
agreed
amount
and
thus
no
order
was
or
could
have
been
taken
out
under
subsection
396(3).
The
almost
identical
issue
arose
in
Horkins
v.
The
Queen,
[1976]
C.T.C.
52;
76
D.T.C.
6043,
before
Collier,
J.
of
this
Court
in
which
a
similar
agreement
between
a
husband
and
wife
was
reached
under
subsection
386(4)
of
the
Ontario
Rules
of
Practice,
which
Rule
is
in
the
following
terms:
386.
(1)
In
rules
386
to
388
interim
alimony
shall
be
deemed
in
a
matrimonial
cause
to
include
monies
payable
by
way
of
alimony
or
an
alimentary
pension
by
either
spouse
for
the
maintenance
of
the
other
and
monies
payable
for
the
maintenance
of
the
children
of
the
marriage
pending
the
hearing
and
determination
of
the
petition.
(2)
In
an
alimony
action
or
in
a
matrimonial
cause,
the
defendant
may,
at
any
time
before
being
served
with
notice
of
motion
for
interim
alimony,
give
notice
in
writing
that
he
submits
to
pay
the
interim
alimony
and
interim
disbursements,
as
demanded
by
the
plaintiff
in
the
endorsement
of
the
writ
or
in
the
petition
for
divorce,
and
in
that
case
no
motion
for
interim
alimony
shall
be
made
until
there
has
been
a
default
in
payment,
and
in
case
of
default,
affidavits
being
filed
verifying
the
endorsement
and
notice
and
the
default,
an
order
for
payment
of
the
sum
demanded
shall
be
issued
on
praecipe.
(Amended,
O.
Reg.
285/71,
s.
10.)
(3)
The
defendant
may
give
notice
in
writing
that
he
submits
to
pay
such
less
sum
as
he
deems
proper
and
names
in
his
notice.
(4)
Where
a
notice
has
been
so
served
and
the
plaintiff
accepts
the
amount
therein
mentioned
as
sufficient,
the
defendant
shall
pay
thereafter
the
sum
so
offered
as
interim
alimony,
and
no
order
for
interim
alimony
shall
be
made
until
there
has
been
default
in
payment.
(5)
Where
a
notice
has
been
so
served,
the
plaintiff's
interim
disbursements
may
be
taxed
without
order.
(6)
Where
the
plaintiff
does
not
accept
the
amount
offered
and
upon
motion
for
interim
alimony
it
is
found
that
the
sum
so
offered
is
reasonable,
and
the
defendant
pays
to
the
plaintiff
the
sum
so
offered,
no
order
for
interim
alimony
shall
be
made
until
there
has
been
default
in
payment.
Collier,
J.
rejected
the
taxpayer's
claim
to
a
deduction
under
paragraphs
11(1)(l)
and
11(1)(la),
corresponding
to
paragraphs
60(b)
and
60(c)
under
consideration
in
this
matter,
when
he
concluded
as
follows
at
pages
55-56
(D.T.C.
6046):
I
have
every
sympathy
for
the
plaintiff,
but
I
am
unable
to
construe
"order"
in
the
paragraphs
in
question
as
including
what
went
on
here.
Without
attempting
an
all-encompassing
interpretation,
I
think
"order"
contemplates
at
least
some
concrete
pronouncement,
decree,
or
direction
of
the
tribunal
in
question.
Rule
386,
as
I
see
it,
provides
for
an
order
in
three
situations
only
and
at
three
particular
points
in
time:
(a)
where
default
in
payment
is
made
after
the
defendant
has
agreed
to
pay
the
interim
alimony
demanded
in
the
petition.
In
such
a
case,
a
motion
for
interim
alimony
setting
out
the
default,
is
not
even
necessary.
(Rule
386(2).)
(b)
where
default
in
payment
is
made
after
the
defendant
has
offered
and
the
plaintiff
has
accepted
a
lesser
sum
than
demanded
in
a
motion
for
interim
alimony.
(Rule
386(4).)
(c)
where
default
in
payment
is
made
after
the
hearing
of
a
motion
for
interim
alimony
where
the
plaintiff
has
refused
to
accept
the
amount
offered
by
the
defendant
but
that
amount
has
been
found
to
be
reasonable.
(Rule
386(6).)
None
of
those
situations
were,
to
my
mind,
present
in
this
case.
I
can
see
a
somewhat
incongruous
situation
arising.
When
default
occurs
in
any
one
of
the
three
circumstances
above
outlined,
an
"order"
can
be
obtained
against
the
defaulter.
If
he
then
pays
pursuant
to
the
order,
he
could
claim
the
benefit
of
paragraphs
11
(1)(l)
or
11(1)(la),
whichever
was
applicable,
provided
he
fell,
as
well,
within
the
other
requirements
of
those
paragraphs.
On
the
other
hand,
the
defendant
who
dutifully
pays
the
amounts
in
the
three
situations
outlined,
cannot
claim
the
payments
as
deductions,
because
there
is
no
"order".
Incongruity
or
unfairness
in
particular
cases
cannot,
unfortunately,
change
the
plain
words
of
the
statute.
As
already
indicated,
I
must
reject
the
plaintiff's
submission
on
this
point.
Counsel
for
the
plaintiff
submits
that
the
Ontario
and
Alberta
Rules
may
be
distinguished
in
that
the
Ontario
Rule
is
more
rigid.
It
provides
that,
in
subsection
(4),
"no
order
for
interim
alimony
shall
be
made",
while
subsection
(3)
of
the
Alberta
Rule
less
rigidly
provides
only
that
"no
order
shall
be
taken
out".
He
submits
that
once
agreement
is
reached
under
subsection
(3)
of
the
Alberta
Rule
the
order
comes
into
existence
at
that
instant
and
the
order
for
payment
of
the
sum
agreed
upon
which
is
to
be
issued
on
praecipe
is
merely
the
reduction
to
writing
of
an
already
existing
order.
Furthermore,
he
submits,
orders
can
only
come
into
existence
after
there
has
been
some
exercise
of
the
judicial
mind
on
a
given
set
of
facts.
Because,
he
continues,
the
clerk
who
authorizes
the
taking
out
of
the
order
on
praecipe
is
not
authorized
to
bring
to
bear
any
judicial
consideration
on
the
facts
which
might
support
the
order,
one
must
look
elsewhere
for
that
consideration.
Counsel
concludes
that
the
judicial
mind
or
judicial
consideration
was
brought
to
bear,
in
a
general
way,
when
the
rules
committee
decided
that
a
given
set
of
facts
would,
on
praecipe,
allow
an
order
to
be
taken
out
and
thus
the
order,
at
least
within
the
meaning
of
the
paragraphs
of
the
Income
Tax
Act
under
consideration,
came
into
existence
as
soon
as
the
facts
arose
which
would
permit
the
order
to
be
taken
out
on
praecipe.
As
Goetz,
J.
of
the
Tax
Court
of
Canada
observed
in
his
decision
on
this
claim,
the
plaintiff
was
arguing
that
as
soon
as
the
plaintiff
and
his
wife
reached
an
agreement
under
subsection
(3)
of
Rule
396
there
was
a
latent
order
in
place
or
”.
.
.
In
other
words,
there
was
a
seed
of
an
order
that
could
flower
into
a
judicial
order
by
the
mere
filing
of
a
praecipe!'
Like
Collier,
J.
and
Goetz,
T.C.J.
who
rejected
the
taxpayers’
position
I
too
must
do
likewise
even
though
I
have
every
sympathy
for
the
unfairness
which
results
to
the
plaintiff
in
this
case.
Paragraphs
60(b)
and
60(c)
of
the
Income
Tax
Act
are
clear
that
in
order
for
the
alimony
payment
to
be
deductible
from
the
taxpayer's
taxable
income
the
payment
must
be
made
pursuant
to
an
order
of
a
competent
tribunal.
The
words
of
subsection
396(3)
of
the
Alberta
Rules
of
Court
are,
in
my
view,
equally
clear
that
it
is
a
condition
precedent
to
an
order
being
taken
out,
that
there
be
a
default
in
the
agreed
payment.
In
this
case
there
was
no
default
by
the
plaintiff
and,
accordingly,
during
the
period
of
the
payments
in
1982
no
order
was
or
could
have
been
taken
out
by
him.
I
acknowledge
that
the
wording
of
the
Ontario
and
Alberta
Rules
are
not
identical
but
in
essence,
and
in
their
application
to
the
section
of
the
Income
Tax
Act
now
under
consideration,
I
can
find
no
reason
to
come
to
a
different
conclusion
than
that
to
which
Collier,
J.
came.
Notwithstanding
the
ingenuity
of
the
argument
presented
by
counsel
on
behalf
of
the
plaintiff
I
can
find
no
order
pursuant
to
which
the
alimony
payments
were
made
and
therefore
can
find
no
reason
why
they
should
be
allowed
as
deductions
from
the
taxpayer's
taxable
income
for
his
1982
taxation
year
under
the
provisions
of
either
paragraph
60(b)
or
60(c)
of
the
Income
Tax
Act.
The
plaintiff's
appeal
will
therefore
be
dismissed
with
costs.
Pursuant
to
paragraph
337(2)(b)
of
the
Federal
Court
Rules,
counsel
for
the
defendant
is
directed
to
prepare
a
draft
of
the
formal
judgment
and
to
submit
the
same
to
counsel
for
the
plaintiff
for
approval
as
to
its
form
and
then
to
me
for
review
and,
if
accepted,
for
entry.
Appeal
dismissed.
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