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Citation: 2005TCC2
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Date: 20050104
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Docket: 2002-3530(IT)G
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BETWEEN:
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CHARLES BRUCE WRIGHTSON,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
Woods J.
[1] This appeal concerns the
deductibility of a lump sum amount of $30,000 paid by Charles
Bruce Wrightson to his former spouse, Connie Wrightson, in the
2000 taxation year. Mr. Wrightson submits that the payment was
made to assist his former spouse with the acquisition and
renovation of a home and that it satisfies the requirements of
the deeming provision in subsection 60.1(2) of the Income Tax
Act.
Facts
[2] Charles Bruce Wrightson and Connie
Wrightson have been divorced for several years. They each
testified at the hearing, providing rather different explanations
of the $30,000 payment that is the subject of this
appeal.
[3] Pursuant to legal proceedings that
appear to have been protracted and difficult, various court
orders were issued providing for the custody of the three
children and for Mr. Wrightson to pay spousal and child
support.
[4] Of particular relevance to this
appeal is a written agreement dated May 1, 2000, that was entered
into several years after the court orders were issued and at a
time when Mr. Wrightson's spousal support obligations under
the court orders had ceased. The May 1 agreement was drafted by
Mr. Wrightson without the assistance of legal advice.
[5] The May 1 agreement included a
number of provisions dealing with the custody and care of the
children and it provided for payment of $30,000 as a final
support payment to be made by Mr. Wrightson to Mrs. Wrightson on
or before May 1, 2000.
[6] The relevant paragraph in the May
1 agreement reads:
12. The Respondent shall
pay to the Petitioner the sum of $30,000.00 on or before May 1,
2000. This shall be the final support payment made by the
Respondent. The Petitioner is responsible for all federal and
provincial income tax due on the $30,000.00 support payment.
[7] Mr. Wrightson testified that Mrs.
Wrightson had sought this money to assist in acquiring and
renovating a home. A home was in fact purchased by Mrs. Wrightson
shortly after the agreement was entered into for a purchase price
of $134,000. Mr. Wrightson testified that, at the time, he was
not aware of any mortgage arrangements for the home but agreed to
a $30,000 payment to assist with the acquisition of the home and
renovations that his former spouse was planning to undertake
shortly after the purchase.
[8] Although Mr. Wrightson had no
legal obligation to make this payment as his spousal support
obligations had ended, he indicated that he wanted Mrs. Wrightson
to have a nice home for his children to visit and he was prepared
to make this payment as long as it was tax deductible to him. The
agreement provided that Mr. Wrightson had care of the children
during the school year, but it also contemplated that the
children would visit frequently with their mother.
[9] The agreement itself does not
refer to the purpose of the payment except to state that it was
paid as a final support payment. There were references to the
home and renovations, however, in receipts that Mr. Wrightson had
prepared and that Mrs. Wrightson had signed. In all, there were
three receipts corresponding to three cheques totalling $30,000
(two cheques issued in April for $1,000 each and a cheque issued
in May for $28,000). Each of the receipts stated that the payment
was "for the purchase and renovation of my home."
[10] Mr. Wrightson acknowledges that the
receipts were not signed contemporaneously with the issuance of
the cheques but states that he had prepared two earlier versions
of the receipts that Mrs. Wrightson did not sign. My impression,
though, was that the receipts were executed not too long after
the cheques were issued.
[11] Although Mr. Wrightson did not at the
time know whether Mrs. Wrightson had incurred a mortgage with
respect to the property, he subsequently obtained this
information from Mrs. Wrightson for purposes of this appeal. He
introduced into evidence a mortgage statement issued by M.R.S.
Trust Company. It was stated to be issued on May 5, 2000
but was stamped "Revised." There was no evidence
disputing the accuracy of the mortgage statement, however, and
accordingly I accept its contents as true.
[12] The mortgage statement indicates that
Mrs. Wrightson assumed the vendor's mortgage on the closing
of the home purchase. The amount assumed was $122,348.66 and the
monthly principal and interest payments were stated to be
$914.54.
[13] Mr. Wrightson did not provide any
evidence of the cost of the renovations but Mrs. Wrightson
testified that the renovations cost approximately $10,000 and
were completed within 18 to 24 months following the purchase of
the home in May 2000.
[14] Where the testimony of Mr. and Mrs.
Wrightson differed was with respect the purpose of the $30,000
payment. Mrs. Wrightson stated that during their lengthy divorce
negotiations, she had incurred substantial legal fees and the
$30,000 payment was intended to reimburse her for some of these
costs. She indicated that her husband agreed to make this payment
because he wanted her consent for him to take the children away
for the school year. When she was asked why she signed the
agreement and the receipts acknowledging that the payment was a
final support payment for the home and the renovations, she
stated that, since her only interest was in receiving the money,
it did not matter to her what documents had to be signed.
[15] On cross examination, Mrs. Wrightson
was shown a court order (consent order) dated August 25, 1995
that required Mr. Wrightson to pay $10,000 in full and final
settlement of costs awarded to Mrs. Wrightson in 1993. Mrs.
Wrightson testified that she had no recollection of this court
order.
[16] Mrs. Wrightson was also questioned
about the tax treatment of the $30,000 payment and the
acknowledgement in paragraph 12 of the May 1 agreement that she
was responsible for income tax due on the $30,000 payment. Mrs.
Wrightson testified that she had concluded that the payment was
not taxable to her because it was not a support payment. Contrary
to what the agreement stated, it was a reimbursement of court
costs and not support, she stated.
[17] It appears that Mrs. Wrightson did not
file income tax returns for a period of time. She testified that
when she did file returns, the Canada Revenue Agency advised her
that it was not necessary to include the $30,000 amount in income
if it represented a reimbursement of legal costs.
[18] Faced with conflicting testimony by
former spouses having gone through a difficult divorce
proceeding, I place considerable weight on the documents signed
by Mrs. Wrightson at the time, namely the May 1 agreement and the
receipts. These documents support Mr. Wrightson's version of
events. In addition, Mr. Wrightson's testimony is also
consistent with the fact of the house purchase in early May and
the subsequent renovations.
[19] Mrs. Wrightson's testimony, on the
other hand, does not adequately explain why Mr. Wrightson would
agree to pay legal costs for proceedings completed several years
earlier when a 1995 court order seemingly provided a final
accounting of these costs.
[20] Mrs. Wrightson may be correct when she
stated that Mr. Wrightson was motivated to make the payment
because he wanted a further agreement with respect to the
children, but that is only evidence of motivation and is not
inconsistent with Mr. Wrightson's explanation that the
payment was made to assist with the purchase of the home and the
renovations.
[21] The Crown suggests that Mr.
Wrightson's evidence is not credible because it is not
consistent with the amount expended by Mrs. Wrightson as a down
payment on the home ($11,000) and the renovations ($10,000). In
the submission of the Crown, the numbers just don't add up
because Mr. Wrightson claimed that he intended to pay no more
than 20 percent of these costs.
[22] I disagree. Mr. Wrightson testified
that he intended to pay 20 percent of the cost of the home
($134,000) and 20 percent of what he expected the renovations to
cost. This was based on what he thought was the maximum amount
that could be deducted for tax purposes. This was an incorrect
interpretation of the relevant tax provisions but it does not
impugn Mr. Wrightson's credibility. Accordingly, I believe that
the evidence does establish that the $30,000 payment was for the
acquisition and renovation of the home and that it was intended
as a final support payment.
[23] As for whether the parties had agreed
that Mrs. Wrightson would pay tax on the $30,000 payment and that
Mr. Wrightson would be entitled to claim a tax deduction with
respect to it, I believe that the documents are more consistent
with Mr. Wrightson's version of events that the tax deduction
was critical to him and that Mrs. Wrightson was well aware of
that fact and as well that it was taxable to her.
[24] I do not believe that Mrs.
Wrightson's testimony provides an adequate explanation of her
understanding of the tax consequences. She stated that she
concluded that there would be no tax payable because, contrary to
what the agreement said, the payment was not for support. In my
view, the fact that Mrs. Wrightson signed an agreement
acknowledging that the payment was for support and agreeing to
pay federal and provincial tax due with respect to it satisfies
me that she was well aware that she was required to include the
payment in her income.
[25] In this appeal, Mr. Wrightson seeks a
deduction for the $30,000 payment under paragraph 60(b)
and the deeming provision in subsection 60.1(2) of the
Act. The notice of appeal also raised issues
concerning child support payments and the dependant
(equivalent-to-spouse) tax credit but these issues have since
been resolved.
Statutory provisions
[26] The starting point for determining
whether a support payment is deductible is the formula in
paragraph 60(b) of the Act. The only part of that
formula that is relevant to the issues in this appeal is the
requirement that the amount satisfy the definition of "support
amount."
[27] "Support amount" is defined in
subsection 56.1(4) of the Act. In the 2000 taxation
year, the relevant part of the definition read:
"support amount" means an amount payable or receivable as an
allowance on a periodic basis for the maintenance of the
recipient, children of the recipient or both the recipient and
children of the recipient, if the recipient has discretion as to
the use of the amount, and
(a)
the recipient is the spouse or former spouse of the payer, the
recipient and payer are living separate and apart because of the
breakdown of their marriage and the amount is receivable under an
order of a competent tribunal or under a written agreement;
...
[28] The other provision that is relevant to
this appeal is the deeming rule in subsection 60.1(2). If this
deeming rule applies, then two of the requirements in the
definition of "support amount" are satisfied - that the amount is
an allowance on a periodic basis and that the recipient has
discretion as to its use. The provision reads:
(2) For the purposes
of section 60, this section and subsection 118(5), the amount
determined by the formula
A - B
where
A is the total
of all amounts each of which is an amount (other than an amount
that is otherwise a support amount) that became payable by a
taxpayer in a taxation year, under an order of a competent
tribunal or under a written agreement, in respect of an expense
(other than an expenditure in respect of a self-contained
domestic establishment in which the taxpayer resides or an
expenditure for the acquisition of tangible property that is not
an expenditure on account of a medical or education expense or in
respect of the acquisition, improvement or maintenance of a
self-contained domestic establishment in which the person
described in paragraph (a) or (b) resides) incurred
in the year or the preceding taxation year for the maintenance of
a person, children in the person's custody or both the person and
those children, where the person is
(a)
the taxpayer's spouse or former spouse, or
(b)
where the amount became payable under an order made by a
competent tribunal in accordance with the laws of a province, an
individual who is a parent of a child of whom the taxpayer is a
natural parent,
and
B is the
amount, if any, by which
(a)
the total of all amounts each of which is an amount included in
the total determined for A in respect of the acquisition or
improvement of a self-contained domestic establishment in which
that person resides, including any payment of principal or
interest in respect of a loan made or indebtedness incurred to
finance, in any manner whatever, such acquisition or
improvement
exceeds
(b)
the total of all amounts each of which is an amount equal to 1/5
of the original principal amount of a loan or indebtedness
described in paragraph (a),
is, where the order or written agreement, as the case may be,
provides that this subsection and subsection 56.1(2) shall apply
to any amount paid or payable thereunder, deemed to be an amount
payable by the taxpayer to that person and receivable by that
person as an allowance on a periodic basis, and that person is
deemed to have discretion as to the use of that amount.
Position of the Crown
[29] In addition to disputing the facts, the
Crown submits that Mr. Wrightson's version of the facts fails
to satisfy several of the statutory requirements that must be met
to qualify for the deduction under paragraph 60(b). The
Crown's arguments were set out in several written submissions
and I have tried to summarize them in the following four
points.
[30] First and foremost, the Crown suggests
that a one-time payment in the nature of capital does not meet
the requirements set out in The Queen v. McKimmon, [1990]
1 C.T.C. 109 (F.C.A.). Secondly, the Crown suggests that the
payment is not in the nature of maintenance or support within the
context of paragraph 60(b). The Crown also suggests
the deeming provision in subsection 60.1(2) does not apply
because the written agreement does not identify the specific
purpose for the payment. Lastly, the Crown submits that the
written agreement does not adequately provide for the tax
treatment of the payment as required by subsection 60.1(2).
Analysis
[31] The statutory provisions that are
relevant to this appeal are rather difficult to read,
particularly subsection 60.1(2) which in some respects is rather
counter-intuitive. For that reason, I will try to set out in some
detail the statutory requirements that are relevant.
Interplay between relevant sections
[32] Counsel for the Crown reiterated on
several occasions that subsection 60.1(2) was only a deeming rule
and that other statutory requirements must also be satisfied.
This is undoubtedly true. The Crown's arguments, however,
appear to be founded on the words of subsection 60.1(2), save for
arguments concerning a contextual interpretation of the support
provisions and the McKimmon case. Accordingly, I will
start with an analysis of subsection 60.1(2).
Subsection 60.1(2)
[33] The following are the elements of
subsection 60.1(2) that in my view are relevant to this appeal.
If they are satisfied, subsection 60.1(2) will deem the $30,000
payment to be an allowance payable on a periodic basis and Mrs.
Wrightson to have discretion as to its use.
1.
The $30,000 amount must be payable in a taxation year under a
written agreement.
2.
The $30,000 amount must be in respect of an expense.
3.
The expense must be in respect of the acquisition or improvement
of Mrs. Wrightson's new home.
4.
The expense must be incurred in the taxation year or the
preceding taxation year.
5.
The $30,000 amount must be for the maintenance of Mrs.
Wrightson.
6.
The agreement must provide for the tax treatment of the
payment.
7.
The deduction must not exceed one-fifth of the original principal
amount of indebtedness incurred to finance the acquisition or
improvement of the home. (This is a limitation on the amount that
is deductible rather than a condition of the application of the
subsection but I have included it here for convenience.)
[34] I will now consider each of these
elements, starting with the last one.
Deduction limited to 1/5 of indebtedness
[35] Under clause B(b) in subsection
60.1(2), if a particular payment is in respect of the acquisition
or improvement of a home, then the amount that is deductible is
limited to one-fifth of the original principal amount of
indebtedness incurred to finance the acquisition or improvement
of the home. Based on my conclusion that the original principal
amount of indebtedness incurred by Mrs. Wrightson to finance the
acquisition of the home was $122,348.66, the amount that is
potentially deductible by Mr. Wrightson is limited to one-fifth
of this amount, or $24,469.73.
Payable in year under written agreement
[36] As for the first requirement above,
clause A in subsection 60.1(2) requires that the amount be
payable in a taxation year under either an order of a competent
tribunal or a written agreement.
[37] It is undisputed that the $30,000 was
payable in the 2000 taxation year under a written agreement.
However, the Crown suggests that it is also necessary that the
specific expense be referred to in the written agreement. In this
case, the purpose of the payment was not stated in the written
agreement but it was mentioned in each of three receipts signed
by Mrs. Wrightson.
[38] I do not interpret clause A as
requiring that the written agreement refer to the purpose of the
expense. This conclusion is based on a grammatical reading of the
clause. The phrase "under an order of a competent tribunal
or under a written agreement" is set off by commas, clearly
modifying the words that precede it. The preceding words are
"an amount ... that became payable by a taxpayer in a
taxation year." Accordingly, is quite clear the
written agreement need only refer to an amount payable in a
particular taxation year. For this reason, I do not accept the
Crown's argument that the purpose of the expense must be referred
to in the written agreement.
Payable in respect of an expense
[39] As for the second requirement, clause A
requires that the support payment be "in respect of an
expense."
[40] The $30,000 payment in this case is
perhaps unusual because it is not a payment of, or reimbursement
of, a specific outlay. Rather, the purpose of the payment was
more general - to assist with the acquisition of a home that cost
$134,000 and renovations of an unspecified amount. Mr. Wrightson
was not aware of the financial arrangements, namely that a
mortgage of $122,348.66 was being assumed and that the initial
cash outlay was therefore only $11,651. He was also not aware of
the cost of the renovations. Accordingly, Mr. Wrightson was
providing general financial assistance for the home and the
renovations and was not reimbursing for specific cash
outlays.
[41] The question that this raises is
whether it satisfies the requirement that the payment be "in
respect of an expense." I have concluded that it does.
[42] The phrase "in respect of" is a
commonly-used phrase in the Income Tax Act. The courts
have given it a very broad interpretation as evidenced by the
following statement by Mr. Justice Major in The Queen v.
Markevich, 2003 D.T.C. 5185 (S.C.C.):
The words "in respect of" have been held by this
Court to be words of the broadest scope that convey some link
between two subject matters.
[43] By the use of that broad phrase,
Parliament intended that subsection 60.1(2) apply not only to
reimbursements of specific cash outlays, but also to payments
that are linked more generally to particular expenditures. In
this case, there is a clear link between the payment of the
$30,000 and the purchase of the home and the renovations. The
$30,000 was intended as general financial assistance for these
expenditures and, in my view, this is satisfactory to meet the
requirement that the payment be "in respect of an expense."
Expense in respect of acquisition or improvement of
home
[44] As for the third requirement, it must
be established that the expense is in respect of the acquisition
or improvement of a home in which Mrs. Wrightson resided. Clause
A of subsection 60.1(2) excludes expenditures for tangible
personal property except for medical or educational expenses or
expenditures in respect of the acquisition, improvement or
maintenance of a self-contained domestic establishment in which
the recipient resided.
[45] Based on my conclusion on the facts
that the purpose of the payment was to assist with the
acquisition and renovation of the home, and for the reasons above
with respect to the meaning of "in respect of," it
follows that the payment was in respect of the acquisition and
improvement of the home. There is no dispute that Mrs. Wrightson
resided in the home and accordingly the third requirement is
satisfied.
Expense incurred in the year or preceding year
[46] Turning to the fourth requirement,
clause A requires that specific expense be incurred in the
taxation year or the preceding taxation year. In this case, the
cost of the home ($134,000) was incurred in the relevant taxation
year (2000) when the home was acquired. The only evidence
regarding when the renovation costs were incurred was Mrs.
Wrightson's testimony that the renovations cost approximately
$10,000 and were completed within 18 to 24 months. Based on
this evidence, a very large percentage of the total expenses for
the home and renovations ($144,000) were incurred in the 2000
taxation year. Accordingly, the $30,000 payment is linked to over
$134,000 of expenses incurred in the taxation year. In my view,
that is sufficient to satisfy the requirement that the expense be
incurred in the taxation year or the preceding year.
Amount payable for maintenance
[47] I now turn to the requirement, also in
clause A, that the amount be for the maintenance of the
recipient. The Crown's argument seems to be based on its view of
the evidence that the payment was to reimburse court costs and
not to assist with the acquisition of the home. As noted above, I
do not accept this view of the evidence.
[48] Counsel for the Crown accepted the
following definition of "maintenance" cited in Barker v. The
Queen, [1998] 1 C.T.C. 2538 (T.C.C.), at paragraph 22:
... Maintenance is defined in The Dictionary of Canadian
Law, by Daphne A. Dukelow and Betsy Nuse, in part as
follows: "Pecuniary support including support or
alimony to be paid to someone who is not a spouse. [...] Includes
shelter, clothing, nursing support, medical treatment, necessary
training, instruction and transportation". Thus, lodging is
a form of maintenance as is the supply of food, clothing and
other means of subsistence. ...
[49] This definition, which is supported by
other legal dictionaries, is broad enough to include a lump sum
amount paid to assist Mrs. Wrightson with the acquisition and
improvement of a home. Accordingly, the fifth requirement is
satisfied.
Agreement provides for tax treatment
[50] As for the sixth requirement, the
written agreement must provide that subsections 60.1(2) and
56.1(2) apply to the payment. In paragraph 12 of the written
agreement referred to above, Mrs. Wrightson agrees to be
responsible for federal and provincial income tax due with
respect to the payment. The issue is whether this satisfies the
statutory requirement.
[51] This question was recently considered
by the Federal Court of Appeal in Veilleux v. The Queen,
[2003] 2 C.T.C. 138 (F.C.A.). That case has some similarity to
this one. In both, the written agreements refer only to the
recipient's tax treatment, not the payer's. In addition,
in both cases, the agreements did not refer to specific sections
of the Act. In a judgment by Létourneau J.A., the
court unanimously concluded that it is not necessary that the
agreement to refer to the payer's tax treatment and that it
is sufficient for the agreement to acknowledge that the spouse
will be taxed on amounts payable under the agreement.
[52] The only significant difference that I
can see between this case and Veilleux is that, in
Veilleux, the recipient was clearly aware that she was to
include the amounts in her income because she did so for a period
of ten years. However, this fact does not appear to have been
significant to the decision in Veilleux because
Létourneau J.A. relies on the wording of the agreement to
conclude that the spouse was aware that she was to pay tax on the
payments.
[53] In my view, a deduction for a support
payment should not depend on having corroborating evidence by a
former spouse. Like Veilleux, the agreement in this case
speaks for itself. It makes it clear that the recipient is to pay
tax owing with respect to the payment. Mrs. Wrightson cannot
avoid that obligation by stating that she paid no attention to
the agreement at the time. I wholeheartedly agree with the
following comment in Veilleux, at paragraph 38:
38 Disallowing the deductions
claimed by the applicant, in the circumstances, amounts to
penalizing him unfairly by denying him a right that is the
corollary of all the support obligations that he assumed and
carried out in good faith. ...
[54] In support of its position, counsel for
the Crown referred to several decisions of the Tax Court of
Canada that were rendered after Veilleux: Rivkin v.
Canada, [2004] 1 C.T.C. 2766; Cranswick v. Canada,
[2004] 2 C.T.C. 2815; and Carmichael v. The Queen, 2003
D.T.C. 856.
[55] In my view, all these cases can be
distinguished on their facts. In Rivkin and
Carmichael, the agreements do not refer to income tax
consequences at all. And in Cranswick, the agreement
referred to the tax treatment of the payer but not the recipient.
Veilleux makes it clear that the agreement must refer to
the tax treatment to the recipient but not necessarily the payer.
For these reasons, none of these cases are relevant to the
particular facts in this case and I see no reason why
Veilleux should not apply. I find that the sixth
requirement is accordingly satisfied.
Lump sum (capital) amount
[56] Finally, the Crown submits that a
payment of this nature, a lump sum capital-type payment, is not
within the purview of paragraph 60(b). Counsel could
not provide a statutory reference for this argument and indicated
that it did not depend on the words but rather the context of the
support provisions. I cannot accept that the context of these
statutory provisions implies some unexpressed exclusion for lump
sum capital-type payments. In my view, any restriction as to the
deductibility of support payments should be found in the words
used in the relevant provisions.
[57] I would note that Parliament appears to
have considered whether it is appropriate to have some limit on
the amount that may be deducted where the expense relates to the
acquisition of a home. That limitation is that the annual
deduction cannot exceed one-fifth of the original principal
amount of indebtedness incurred with respect to the
property. I see no reason to import further limits based on
some unexpressed intention.
[58] Counsel for the Crown also referred to
the McKimmon case in support of its argument with respect
to lump sum capital amounts. That case considered whether
instalments of a lump sum were an "allowance for the
maintenance" of a former spouse.
[59] The statutory language that is relevant
in this appeal is different from McKimmon. The meaning of
"maintenance" is relevant and was discussed above. The meaning of
"allowance" is not relevant, however, because if subsection
60.1(2) applies, the amount is deemed to be an allowance.
[60] I do not read anything in
McKimmon that would imply that the statutory provisions
that are at issue in this case do not apply to lump sum or
capital amounts. On the contrary, subsection 60.1(2) clearly
contemplates that a payment in respect of the acquisition or
improvement of a home can qualify as a support amount. As
McKimmon is based on different statutory provisions, in my
view it is not relevant to the issues in this appeal.
Application of deeming rule
[61]For the reasons above, I would conclude that the deeming
rule in subsection 60.1(2) applies to $24,469.73 of the $30,000
payment. It remains to be considered if this amount is a "support
amount" as defined in subsection 56.1(4). This requires that it
be an allowance payable on a periodic basis, that Mrs. Wrightson
have discretion as to its use, and that it be for the maintenance
of Mrs. Wrightson.
[62] By virtue of subsection 60.1(2),
$24,469.73 of the amount is deemed to be an allowance payable on
a periodic basis and Mrs. Wrightson is deemed to have discretion
as to its use. The only other relevant requirement in the
definition of "support amount" is that the amount be for
maintenance. This is also a requirement of subsection 60.1(2)
and, for the reasons above, I would conclude that the payment was
for the maintenance of Mrs. Wrightson.
[63] Accordingly, I would conclude that
$24,469.73 qualifies as a "support amount" and that it also
qualifies for the deduction in paragraph 60(b) of the
Act.
Conclusion
[64] The appeal will be allowed and the
reassessment will be referred back to the Minister of National
Revenue for reconsideration and reassessment on the basis
that:
1. Mr. Wrightson shall be
entitled to deduct child support payments in the amount of
$7,200;
2. Mr. Wrightson shall not be
entitled to the dependant (equivalent-to-spouse) tax credit;
and
3. Mr. Wrightson shall be
entitled to deduct $24,469.73 under paragraph 60(b) of the
Act.
[65] As for costs, there was divided success
in this appeal and the hearing lasted longer than necessary due
to deficiencies by both parties. In the circumstances, there will
be no order as to costs.
Signed at Toronto, Ontario this 4th day of January,
2005.
Woods J.
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