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Citation: 2004TCC338
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Date: 20040614
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Docket: 2003-3303(IT)I
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BETWEEN:
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SHELLEY PATRIQUIN,
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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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____________________________________________________________________
Agent for the Appellant: Terry Kent
Counsel for the Respondent: Julie
Rogers-Glabush
____________________________________________________________________
REASONS FOR JUDGMENT
(Delivered orally from the Bench at
Edmonton, Alberta, on January 23, 2004)
McArthur J.
[1] The issue is whether there was a
written agreement effective May 1, 1997, that changed the support
payments contained in a 1987 divorce judgment.
[2] The Appellant and Bud Patriquin
were married in 1980, had two children, Denise and Dale, born in
1981 and 1983. Pursuant to a 1987 divorce judgment, Mr. Patriquin
was required to make payments of $300 per month. In 1994, by
verbal agreement with the Appellant, he agreed to pay $600 per
month.
[3] In 1996, the Appellant commenced
proceedings toward obtaining a written agreement. Upon agreement
with Mr. Patriquin's solicitor, the Appellant not being able
to afford counsel prepared a consent order filed as Exhibit A-1
and Exhibit R-2. The handwritten paragraph 6 was added
by Mr. Patriquin. This consent order was returned to the
Appellant by Mr. Patriquin's solicitor, Mr. Vigen,
under cover of the following letter (Exhibit A-2):
Dear Ms. Patriquin
Re: Consent
Order
Enclosed please find the executed Consent Order with a clause
inserted that my client insisted upon. If you have a problem with
it, kindly call me to discuss it. Otherwise, I look forward to
receipt of a filed copy of the Order.
Yours truly,
R. Douglas Vigen
She did not have need to call Mr. Vigen; she agreed with
it.
Analysis
[4] In instances of conflict in the
recollection of past events by each party, I accept the evidence
of the Appellant over that of Mr. Patriquin without reservation.
On or about April 27, 1997, the Appellant dealt directly with her
former husband. She agreed to the added paragraph 6 of the
consent, and he agreed to file the document with the Court. When
the Appellant became aware in September 2002 that this had not
been done, she filed it.
[5] For the following reasons, I find
that the written consent order was a legal and binding agreement
effective May 1, 1997, being the commencement day as defined in
subsection 56.1(4) of the Income Tax Act. I find that it
changed the support payments in the former written agreement
referred to.
[6] First, it was signed by both
parties; second, Mr. Patriquin did his negotiation through his
solicitor Mr. Vigen; third, Mr. Vigen had the Appellant prepare
the draft order, as they had agreed between them; fourth, the
Appellant agreed to the changed Number 6 inserted by Mr.
Patriquin; fifth, Mr. Patriquin acknowledged that he signed
the agreement; although he felt he was forced to in that he was
aware upon signing in late April 1997 that the laws had changed
with regard to deduction of support payments. Sixth, he followed
the terms of the order from its inception. He paid the $600 per
month, provided notice with respect to visitation, and that, at
least in the 2000 taxation year, did not claim a deduction for
the support payments he made. Seventh, paragraph 1 of the consent
order includes the following paragraph:
... In accordance with the Federal Support Guidelines
effective May 1, 1997, said payments made for the support of the
children shall not be reported by the Respondent as a taxable
deduction and the Petitioner will not report the aforementioned
payments as taxable income.
Eighth, Mr. Patriquin admitted he wrote the undated note to
Revenue Canada (Exhibit R-4) probably in the summer of 2002,
wherein he stated in part:
Shelley and myself, Bud Patriquin ... made an agreement
May 1997 that I would no longer claim the support.
He goes on to say:
Shelly did not sign this agreement, nor did she get it
legalized in court.
[7] I have no doubt that both parties
signed the agreement and intended to be bound by it. I was
provided with the judgment of Judge Bowie in Alm v. The
Queen.[1] I find the present case is similar to the
situation in which Judge Bowie concluded:
There is nothing loose or indefinite about the arrangement, it
is in the letters.
And I find in this instance there is nothing loose or
indefinite about the arrangements. Both parties intended to be
bound by the consent order and I find they are in fact, bound by
it, effective May 1 and not when it was filed with the Court in
September 2002.
[8] It is clear from the jurisprudence
that a commencement date can be established by the parties,
proving that the intended effective day was to ensure that the
payments were not taxable to the recipient pursuant to the
post-April 1997 support regime.
[9] The appeals are allowed with costs
to the Appellant in the amount of $300.
Signed at Ottawa, Canada, this 14th day of June, 2004.
McArthur J.
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