O’Connor
J.T.C.C.:—These
appeals
were
heard
together
in
Saskatoon,
Saskatchewan
on
January
11,
1995
pursuant
to
the
informal
procedure
of
this
Court
and
relate
to
the
appellant’s
1990,
1991
and
1992
taxation
years.
Issues
The
issue
in
the
1990
appeal
is
whether
the
appellant
may
deduct
an
amount
of
$8,743.56
representing
mortgage
payments
paid
in
that
year
by
the
appellant
pursuant
to
a
court
order
dated
August
6,
1987
with
respect
to
the
appellant
and
his
separated
wife.
The
1991
appeal
has
the
same
issue
but
the
amount
of
the
mortgage
payments
in
question
was
$14,745.
Further,
with
respect
to
the
month
of
December
1991,
there
is
a
question
of
the
impact
on
a
mortgage
payment
made
in
that
month
of
an
amended
court
order
dated
November
27,
1991
applicable
to
payments
from
and
after
December
1,
1991.
The
1992
appeal
has
the
same
issues
as
the
1991
appeal
but
the
amount
of
the
mortgage
payments
in
question
was
$14,400.
Facts
In
1983
the
appellant
and
his
then
spouse,
Karla
Marie
Armstrong
("former
spouse")
purchased
a
home
in
Saskatoon
as
joint
tenants
with
right
of
survivorship.
This
became
their
matrimonial
home
and
shall
hereafter
be
referred
to
as
such.
As
part
of
the
purchase
price
they
assumed
the
existing
mortgage
of
the
vendors
in
an
amount
of
approximately
$52,000.
The
mortgage
was
transferred
to
the
Toronto-Dominion
Bank
on
August
12,
1986
at
which
time
the
principal
balance
outstanding
was
$51,358.85.
The
appellant
separated
from
his
former
spouse.
By
an
order
of
the
Court
of
Queen’s
Bench
for
the
Province
of
Saskatchewan
dated
August
6,
1987
the
appellant
was
ordered
to
"pay
the
monthly
mortgage
obligation
with
respect
to
the
matrimonial
home".
By
a
further
order
of
said
Court
dated
November
27,
1991
the
appellant
was
ordered
to
pay
the
former
spouse
maintenance
of
$400
per
month
per
child
in
respect
of
three
children,
two
of
whom
were
issue
of
his
marriage
with
his
former
spouse
and
the
third
being
a
child
of
the
former
spouse
from
a
previous
union.
This
order
also
provided
that
the
appellant
was
to
"continue
to
pay
the
monthly
mortgage
obligation
with
respect
to
the
matrimonial
home.
Such
payment
to
include
all
municipal
taxes
and
tax
arrears".
Very
few,
if
any,
payments
were
made
on
account
of
taxes
to
the
City
of
Saskatoon
in
respect
of
the
matrimonial
home
after
August
6,
1987
with
the
result
that
in
November
1990
the
Toronto-Dominion
Bank
paid
the
tax
arrears
amounting
to
$6,665.10,
charged
this
payment
to
the
mortgage
and
increased
the
mortgage
payments
by
approximately
$400
per
month.
The
amounts
which
the
appellant
wishes
to
deduct
in
each
year
relate
to
principal
and
interest
on
the
mortgage
and
taxes
with
jespect
to
the
matrimonial
home.
Three
garnishment
proceedings
by
the
former
spouse
against
the
appellant’s
employer
followed
between
December
4,
1991
and
July
8,
1992.
The
first
garnishment
relates
to
the
obligation
of
the
appellant
to
make
payments
in
respect
of
the
children.
The
garnishments
dated
January
22,
1992
and
July
8,
1992
relate
to
the
appellant’s
obligations
to
make
the
mortgage
payment
and
taxes
of
$919.56
per
month
in
each
month
where
there
are
four
Tuesdays
and
$1,149.45
in
each
month
were
there
were
five
Tuesdays.
At
this
point
in
time
the
mortgage
payments
were
on
a
weekly
basis.
It
is
difficult
to
reconcile
the
amounts
in
issue
in
these
appeals
with
the
statements
submitted.
However,
the
amounts
are
not
in
dispute.
Further
the
appellant
has
testified
that
with
respect
to
the
required
payments
of
the
mortgage
and
taxes
from
and
after
December
1,
1991
he
remitted
sums
to
the
attorneys
of
his
former
spouse
who
in
turn
remitted
same
to
her
and
she
made
the
mortgage
payments,
including
a
component
for
taxes,
directly
to
the
Toronto-
Dominion
Bank.
Finally
an
order
of
the
said
Court
dated
October
15,
1993
dealt
with
the
usual
matters
of
custody
and
visiting
rights
and
under
the
heading
"Division
of
Matrimonial
Property"
provided
as
follows:
a.
Karla
Armstrong
shall
maintain
exclusive
possession
of
the
matrimonial
home
until
July
15,
1997.
At
that
time,
the
house
shall
either:
i.
Be
sold
and
the
net
proceeds
of
sale
after
payment
of
the
outstanding
balance
of
the
mortgage
presently
registered
against
the
property,
any
tax
adjustment
between
the
vendor
and
purchaser,
real
estate
commissions
and
legal
fees
relating
to
the
sale
of
the
property
shall
be
divided
equally
between
Murray
and
Karla
Armstrong.
Out
of
Karla
Armstrong’s
share
of
the
net
sale
proceeds,
all
encumbrances
affecting
the
property
with
the
exception
of
the
present
mortgage
in
favour
of
the
Toronto-Dominion
Bank
shall
be
paid…
ii.
On
or
before
July
15,
1997
Karla
Armstrong
shall
purchase
Murray
Armstrong’s
one
half
interest
in
the
former
matrimonial
home
at
its
appraised
value
at
June
30,
1997
or
the
date
of
the
purchase
(whichever
is
the
earlier)....
From
the
appraised
value
shall
be
deducted
the
balance
outstanding
at
June
30,
1997
or
the
date
of
purchase
(whichever
is
the
earlier)
on
the
present
mortgage
in
favour
of
the
Toronto-Dominion
Bank.
Murray
Armstrong
shall
be
paid
by
Karla
Armstrong
one
half
of
the
appraised
value
less
the
outstanding
mortgage
balance....
b.
The
mortgage
presently
registered
against
the
former
matrimonial
home
shall
not
be
increased
in
amount.
c.
If
mortgage
payments
fall
in
arrears
for
a
period
of
two
months,
Murray
Armstrong
shall
be
entitled
to
pay
the
mortgage
out
of
child
maintenance
otherwise
payable
by
him
to
Karla
Armstrong
and
such
payments
shall
be
deemed
to
be
maintenance
payments
deductible
by
Murray
Armstrong
under
the
provisions
of
the
Income
Tax
Act.
d.
As
long
as
Karla
Armstrong
has
exclusive
possession
of
the
former
matrimonial
home
she
shall
be
solely
responsible
for
payment
of
all
mortgage
payments,
taxes,
utilities,
maintenance
and
repairs
as
well
as
payment
of
any
liens
or
encumbrances
against
the
property
where
non-payment
would
affect
the
rights
of
Murray
Armstrong....
Law
The
most
relevant
provisions
of
the
Income
Tax
Act,
R.S.C.
1985
(5th
Supp.),
c.
1
(the
"Act")
are
paragraph
60(b),
section
60.1
and
subsection
56(12),
which
provide
as
follows:
60.
There
may
be
deducted
in
computing
a
taxpayer’s
income
for
a
taxation
year
such
of
the
following
amounts
as
are
applicable:
(b)
an
amount
paid
by
the
taxpayer
in
the
year,
pursuant
to
a
decree,
order
or
judgment
of
a
competent
tribunal
or
pursuant
to
a
written
agreement,
as
alimony
or
other
allowance
payable
on
a
periodic
basis
for
the
maintenance
of
the
recipient
thereof,
children
of
the
marriage,
or
both
the
recipient
and
children
of
the
marriage,
if
he
was
living
apart
from,
and
was
separated
pursuant
to
a
divorce,
judicial
separation
or
written
separation
agreement
from,
his
spouse
or
former
spouse
to
whom
he
was
required
to
make
the
payment
at
the
time
the
payment
was
made
and
throughout
the
remainder
of
the
year....
60.1
Where,
after
May
6,
1974,
a
decree,
order,
judgment
or
written
agreement
described
in
paragraph
60(b),
(c)
or
(c.l),
or
any
variation
thereof,
has
been
made
providing
for
the
periodic
payment
of
an
amount
by
a
taxpayer
(a)
to
a
person
who
is
(ii)
or
(b)
for
the
benefit
of
the
person
or
children
in
the
custody
of
the
person,
or
both
the
person
and
those
children,
the
amount
or
any
part
thereof,
when
paid,
shall
be
deemed,
for
the
purposes
of
paragraphs
60(b),
(c)
and
(c.1),
to
have
been
paid
to
and
received
by
that
person.
56.(12)
Subject
to
subsections
56.1(2)
and
60.1(2),
for
the
purposes
of
paragraphs
(1)(b),
(c)
and
(c.l)
(hereinafter
in
this
subsection
referred
to
as
the
"former
paragraphs")
and
60(b),
(c)
and
(c.1)
(hereinafter
in
this
subsection
referred
to
as
the
"latter
paragraphs"),
"allowance"
does
not
include
any
amount
that
is
received
by
a
person,
referred
to
in
the
former
paragraphs
as
"the
taxpayer"
and
in
the
latter
paragraphs
as
"the
recipient",
unless
that
person
has
discretion
as
to
the
use
of
the
amount.
[Note
that
paragraph
56(12)
was
enacted
in
1988
and
applied
to
court
orders
dated
prior
to
November
28,
1986
or
after
December
31,
1987.]
Submissions
Briefly
stated
the
submission
of
the
appellant’s
counsel
is
that
the
mortgage
and
tax
payments
are
deductible,
whether
made
directly
by
him
to
the
Toronto-Dominion
Bank
or,
from
and
after
December
1,
1991,
to
his
wife
(through
her
solicitor)
and
then
remitted
by
her
to
the
Toronto-
Dominion
Bank.
The
submission
of
the
Minister’s
counsel
is
that
the
amounts
are
not
deductible
since
they
do
not
constitute
an
"allowance".
The
Minister
also
argues
that
since
neither
the
order
of
August
6,
1987
nor
the
order
of
November
27,
1991
specifically
provided
that
subsections
56.1(2)
and
60.1
(2)
of
the
Act
are
to
apply
to
the
mortgage
payments
to
deem
them
an
amount
paid
by
the
appellant
and
received
by
his
former
spouse
as
an
allowance
payable
on
a
periodic
basis,
they
are
not
deductible.
The
Minister
submits
also
that
since
the
original
order
of
August
6,
1987
did
not
specifically
mention
taxes,
no
deductions
for
taxes
is
allowable
from
that
date
until
December
1,
1991,
i.e.,
the
effective
date
of
the
November
27,
1991
order
which
mentions
taxes.
In
the
alternative
if
deductions
are
allowed,
the
Minister
argues
that
since
the
appellant
had
50
per
cent
equity
in
the
matrimonial
home,
only
50
per
cent
of
the
payments
are
deductible
or
at
the
very
least
the
capital
component
of
the
mortgage
payments
to
the
extent
of
50
per
cent
should
not
be
deductible.
Analysis
Sections
56.1
and
60.1
provide
for
an
income
inclusion
(and
corresponding
deduction
from
income)
for
certain
payments
of
an
alimony
or
maintenance
nature
which
are
made
to
third
parties
rather
than
to
the
adult
or
child
who
obtains
the
benefit
of
the
payments.
Such
third
party
payments
are
common
in
marriage
break-up
situations
and
often
take
the
form
of
the
direct
payment
of
items
such
as
rent,
taxes,
mortgage
payments,
etc.
Payments
of
this
nature
often
do
not
fit
within
the
technical
wording
of
paragraphs
56(1
)(b)
and
56(1
)(c)
because
they
are
not
"received"
by
the
supported
person
nor,
as
the
Minister
submits,
do
they
constitute
"an
allowance
payable
on
a
periodic
basis".
Subsections
56.1(1)
and
60.1(1)
deal
with
the
question
of
when
a
payment
to
a
third
party
will
be
considered
to
be
"received"
by
a
supported
person.
A
payment
to
any
person
is
deemed
to
have
been
received
by
the
supported
person
for
the
purposes
of
paragraphs
56(1
)(b)
and
56(1
)(c)
(income
inclusions)
and
paragraphs
60(b)
and
60(c)
(deductions)
if
the
following
conditions
are
satisfied:
1.
The
amount
must
be
paid
pursuant
to
the
decree,
order
or
judgment
of
a
competent
tribunal
or
a
written
agreement
(or
any
variation
thereof).
2.
The
payment
must
be
periodic.
3.
The
payment
must
be
either:
(a)
...or
(b)
for
the
benefit
of
the
taxpayer,
children
in
the
custody
of
the
taxpayer,
or
both.
Dealing
firstly
with
the
relatively
minor
issue
of
whether
taxes
between
August
6,
1987
and
December
1,
1991
are
deductible,
I
note
that
few,
if
any,
amounts
were
paid
by
the
appellant
prior
to
November
1990.
In
November
1990
the
Toronto-Dominion
Bank
paid
the
tax
arrears
($6,665.10)
and
increased
the
monthly
mortgage
payment
to
take
that
and
future
taxes
into
account.
Thus
it
appears
that
the
arrears
as
well
as
future
taxes
became
part
of
the
mortgage
payment.
Also
the
mortgage
itself
contained
a
covenant
obliging
the
appellant
and
his
former
spouse
to
pay
the
taxes
and
it
is
arguable
that
the
obligation
to
"pay
the
monthly
mortgage
obligation"
was
broad
enough
to
include
the
obligation
to
pay
taxes.
Consequently
I
will
treat
the
taxes
as
part
of
the
mortgage
payments.
I
turn
now
to
the
aspect
of
"allowance".
In
Pascoe
v.
The
Queen
,
[1975]
C.T.C.
656,
75
D.T.C.
5424,
the
Federal
Court
of
Appeal
analyzed
what
constituted
an
"allowance".
This
was
referred
to
by
Beetz
J.,
in
Gagnon
v.
The
Queen,
[1986]
1
S.C.R.
264,
[1986]
1
C.T.C.
410,
86
D.T.C.
6179
(S.C.C.),
at
page
272
(C.T.C.
415;
D.T.C.
6182):
According
to
the
definition
in
Pascoe,
for
a
sum
of
money
to
be
regarded
as
an
"allowance"
it
must
meet
three
conditions:
(1)
the
amount
must
be
limited
and
predetermined;
(2)
the
amount
must
be
paid
to
enable
the
recipient
to
discharge
a
certain
type
of
expense;
(3)
the
amount
must
be
at
the
complete
disposition
of
the
recipient,
who
is
not
required
to
account
for
it
to
anyone.
In
Gagnon,
the
husband
was
to
pay
$600
per
month
directly
to
his
former
wife,
of
which
$360
was
to
be
used
by
her
to
pay
mortgage
payments
and
taxes
on
her
residence.
The
Federal
Court
of
Appeal
in
Gagnon
applied
the
test
set
forth
in
Pascoe
and
disallowed
the
deduction
of
the
payments
by
the
husband
since
the
third
condition
in
Pascoe
as
to
discretion
in
the
recipient
was
not
met.
The
Supreme
Court
of
Canada
concluded
in
Gagnon
that
the
said
third
condition
was
too
narrow,
stating
further,
at
pages
275-76
(C.T.C.
417;
D.T.C.
6184):
...there
is
no
doubt
that
the
recipient
of
the
amounts
in
question,
appellant’s
former
wife,
could
dispose
of
them
completely,
and
that
she
derived
from
them..."readily
realizable
economic
value".
The
duty
which
she
had
to
apply
these
amounts
to
particular
purposes
does
not
affect
the
benefit
she
derived
from
them.
These
amounts
are
in
the
nature
of
income
for
her,
and
qualify
as
"allowances"
within
the
meaning
of
both
paragraphs
60(b)
and
56(1
)(b)
of
the
Income
Tax
Act.
Gagnon
differs
from
these
appeals
in
that
here
the
payments
were
made
directly
to
the
creditor
rather
than
to
the
spouse
"earmarked"
for
the
creditor.
This
is
perhaps
not
a
significant
difference
but
in
view
of
my
analysis
below
on
third
party
payments
and
discretion,
it
is
not
necessary
to
analyze
this
further.
In
Bryce
v.
M.N.R.,
[1980]
C.T.C.
401,
80
D.T.C.
6304,
Collier
J.,
of
the
Federal
Court-
Trial
Division,
held
that
the
third
Pascoe
restriction
concerning
discretion
as
to
how
the
funds
should
be
applied
was
not
applicable
to
payments
made
to
third
parties
under
section
60.1
of
the
Act.
The
Federal
Court
of
Appeal
in
The
Queen
v.
Bryce,
[1982]
C.T.C.
133,
82
D.T.C.
6126,
was
of
the
opinion
that
section
60.1
of
the
Act
merely
deemed
third
party
payments
to
have
been
paid
to
and
received
by
the
spouse
or
former
spouse
and
that
the
section
did
not
of
itself
allow
for
the
deduction.
On
August
6,
1987,
the
Supreme
Court
of
Canada
on
a
motion
under
section
75
of
the
Supreme
Court
of
Canada
Act
and
with
the
consent
of
both
parties,
delivered
the
following
unreported
judgment:
The
appeal
is
allowed,
the
judgment
of
the
Federal
Court
of
Appeal
is
set
aside
and
the
judgment
of
the
Trial
Division
is
restored,
with
costs,
in
this
Court
and
in
the
Court
of
Appeal.
I
fail
to
understand
how
one
can
attack
the
conclusion
of
Collier
J.
that
the
restriction
concerning
discretion
in
the
recipient
spouse
cannot
apply
to
payments
made
to
third
parties
under
section
60.1.
The
separated
spouses
have
presumably
agreed
or
in
any
event
are
bound
by
an
order
directing
that
mortgage
payments
be
made
to
the
creditor.
In
such
a
case
how
can
the
supported
spouse
ever
be
said
to
have
discretion?
She
may
have
had
it
prior
to
the
order
and
even
may
be
considered
to
have
exercised
it
by
agreement
before
the
order.
After
the
order
however
it
is
impossible
for
her
to
have
a
discretion.
To
insist
that
the
third
Pascoe
condition
must
be
met,
even
for
third
party
payments,
is
to
render
section
60.1
non-
existent
in
many
cases
such
as
the
present.
In
the
unreported
case
of
Crewe
v.
The
Queen
(1992),
T.C.J.
No.
547,
Sobier
J.T.C.C.
states:
To
restrict
the
payments
to
amounts
paid
directly
to
the
appellant,
and
not
also
payments
made
for
her
benefit,
is
to
do
mischief
to
the
provisions
of
subsection
56.1(1)
of
the
Act,
which
deems
the
third
party
payments
to
have
been
paid
to
her
and
received
by
her.
For
what
other
purpose
would
subsection
56.1(1)
have
been
enacted,
except
to
bring
third
party
payments
within
the
provisions
of
paragraph
56(1
)(b)?
In
taking
the
narrow
view,
one
would
be
left
to
wonder
for
what
reasons
were
sections
56.1
and
60.1
enacted,
if
they
were
not
intended
to
be
read
in
conjunction
with
or
interact
with
paragraphs
56(1
)(b)
and
60(b)....
The
legislator
cannot
be
said
to
have
added
language
to
the
enactment
without
that
language
being
given
some
meaning.
Even
though
the
sections
are
at
best
poorly
drafted,
they
must
be
given
meaning.
Given
that
every
enactment
is
to
be
interpreted
as
remedial,
to
interpret
sections
56.1
and
60.1
of
the
Act
in
any
other
way
other
than
as
stated
above
would
not
only
be
non-remedial
but
would
be
counter-productive.
In
interpreting
the
interaction
of
paragraph
56(1
)(b)
and
subsection
56.1(1),
I
must
conclude
that
the
mortgage
payments
made
on
behalf
of
the
appellant
were
income
under
paragraph
56(1
)(b)
of
the
Act
and,
accordingly
properly
includable
in
her
income.
In
my
opinion,
all
of
the
comments
of
Sobier
J.
apply
to
both
sections
56.1
and
60.1
and
consequently
I
find
that
the
payments
were
prima
facie
deductible.
This
raises
the
issue
as
to
whether
the
amounts
in
question
should
be
reduced
because
some
portions
thereof
represented
payments
of
capital
thus
increasing
the
appellant’s
equity
interest
in
the
matrimonial
home.
In
Pritchard
v.
The
Queen
(1992),
T.C.J.,
No.
634
the
Court
considered
the
capital
argument.
Taylor
J.T.C.C.
stated:
In
my
view,
that
posture
does
not
accurately
reflect
the
decision
made
in
Gagnon,
supra,
and
I
quote
from
page
6184
thereof:
Respondent
objected
that
the
amounts
in
question,
or
at
least
a
part
of
them,
are
not
allowances
since,
in
paying
them,
appellant
was
discharging
a
personal
obligation
which
he
had
undertaken
toward
the
hypothecary
creditor.
In
my
opinion,
this
does
not
in
any
way
alter
the
fact
that
the
amounts
were
also
paid
pursuant
to
a
divorce
decree,
as
required
by
paragraph
60(b).
In
another
case,
M.N.R.
v.
Hastie,
[1974]
C.T.C.
131,
74
D.T.C.
6114,
Walsh
J.
refuted
the
same
objection,
at
page
139,
(D.T.C.
6120)
when
he
wrote
that
the
repayment
of
this
personal
debt
was
strictly
incidental
to
the
fact
that
by
making
these
payments...he
was
maintaining
a
home
for
his
wife
and
his
children
commensurate
with
their
standard
of
living.
The
total
benefit
arising
from
the
use
of
the
matrimonial
home,
accrued
directly
and
solely
to
the
appellant’s
ex-wife,
including
that
part
of
the
benefit
made
available
by
the
payment
of
one-half
of
the
mortgage
payments
by
the
appellant.
There
does
rest
the
possibility,
that
some
small
capital
benefit
could
accrue
to
this
appellant
by
virtue
of
the
mortgage
payments
he
made,
and
perhaps
in
some
form
of
calculated
basis
that
could
be
shown-if
it
existed
at
all....
There
is
no
evidence
that
in
making
these
payments,
the
appellant
was
doing
so
pursuant
to
an
objective
to
preserve
his
equity
in
the
family
home.
The
clear
evidence,
both
documented
and
testimonial,
is
that
he
was
doing
so
in
support
of
his
family,
pursuant
to
an
order
of
the
Court.
As
a
possible
analogy,
I
would
submit
that
if
the
amount
at
issue
had
been
paid
as
some
part
of
rent,
ordered
by
the
Court,
to
provide
maintenance
for
his
family,
the
fragility
of
the
respondent’s
position
would
have
been
even
more
apparent.
I
am
not
convinced
that
the
ownership
of
the
matrimonial
home
during
the
relevant
time
has
any
bearing
on
the
determination
of
this
issue.
As
to
the
matter
of
the
failure
of
the
orders
of
1987
and
1991
to
make
specific
reference
to
subsections
60.1(2)
and
56.1(2),
in
Pritchard
v.
The
Queen,
supra,
Taylor
J.T.C.C.
stated:
I
would
note
two
other
points
for
the
record-the
respondent’s
comment
(above)
that
"the
order
does
not
provide
for
subsection
60.1(2)
and
56.1(2)
of
the
Income
Tax
Act".
The
specifically
relevant
part
of
subsection
60.1(2)
reads:
...where
the
decree,
order,
judgment
or
written
agreement,
as
the
case
may
be,
provides
that
this
subsection
and
subsection
56.1(2)
shall
apply
to
any
payment
made
pursuant
thereto,
be
deemed
to
be
an
amount
paid
by
the
taxpayer
and
received
by
that
person
as
an
allowance
payable
on
a
periodic
basis.
[Emphasis
added.]
I
can
only
assume
that
the
respondent
is
indicating
that
there
are
no
words
in
the
order
(above)
referring
specifically
to
subsection
60.1(2)
or
56.1(2)
of
the
Act.
I
have
already
decided
that
the
amount
is
such
an
allowance
on
the
basis
of
the
case
law
alone,
but
I
do
not
agree
that
such
a
restriction
is
required
or
should
be
read
into
those
subsections
in
any
event.
I
concur
in
the
reasoning
of
Taylor
J.
on
both
the
capital
issue
and
the
subsections’
non-inclusion
in
the
order
issue.
On
the
capital
issue
reference
is
also
made
to
the
decision
of
the
Federal
Court-Trial
Division
in
Jasper
v.
The
Queen,
[1994]
2
C.T.C.
309,
94
D.T.C.
6519,
which
held
that
mortgage
payments
paid
pursuant
to
a
court
order
were
to
be
classified
as
an
allowance
for
maintenance
and
not
capital.
Also,
in
my
opinion,
subsection
56(12)
is
not
applicable.
This
provision
was
only
enacted
in
1988
(as
a
reaction
to
Gagnon)
and
applied
to
decrees
entered
into
before
November
28,
1986
or
after
December
31,
1987.
The
original
order
obliging
the
appellant
to
make
mortgage
payments
was
dated
August
6,
1987
and
therefore
was
not
caught
by
subsection
56(12).
The
subsequent
order
dated
November
27,
1991
merely
continued
that
obligation.
Moreover,
as
stated
by
Collier
J.
in
Bryce,
supra,
the
third
condition
in
Bryce
as
to
the
recipient’s
discretion,
which
subsection
56(12)
sought
to
restore
was
not
to
be
applied
to
third
party
payments.
The
Supreme
Court,
albeit
on
a
consent
judgment
restored
the
decision
of
Collier
J.
In
conclusion,
for
all
of
the
above
reasons,
the
appeals
are
allowed
with
one
set
of
costs
and
the
assessments
are
referred
back
to
the
Minister
for
reconsideration
and
reassessment
accordingly.
Appeals
allowed.
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