Rip,
T.C.J.:—Oscar
Forward,
the
appellant,
has
appealed
from
an
assessment
of
income
tax
for
1985
by
which
the
Minister
of
National
Revenue
("Minister")
disallowed
his
claim
for
a
deduction
in
computing
his
taxable
income
in
accordance
with
paragraph
109(1)(b)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act").
He
says
his
daughter
was
wholly
dependent
on
him
for
support
in
1985.
The
respondent
states
the
Minister
disallowed
the
deduction
on
the
basis
that
Forward
was
mailing
payments
to
his
wife
in
1985
for
her
maintenance
and
that
of
their
daughter
and
was
entitled
to
deduction
in
computing
his
income
for
1985
under
paragraph
60(b);
therefore,
in
accordance
with
subsection
109(4),
the
appellant
is
not
entitled
to
the
deduction
provided
for
by
paragraph
109(1)(b).
The
facts
are
not
in
issue.
Forward
and
his
wife
were
separated
on
or
about
November
6,
1980
and
they
executed
a
separation
agreement
on
July
22,
1981.
Amongst
other
things,
the
separation
agreement
provided:
a)
Debra,
aged
14
years,
was
a
child
of
the
marriage
and
was,
at
date
of
the
agreement,
in
the
de
facto
custody,
care
and
control
of
Mrs.
Forward;
b)
Mrs.
Forward
was
to
have
sole
custody,
care,
control
and
guardianship
of
and
management
over
Debra;
c)
The
appellant
was
to
pay—and
did
pay—to
Mrs.
Forward
$700,00
monthly
for
the
maintenance
of
herself
and
for
the
education
of
and
the
general
upbringing
of
Debra;
in
the
event
either
the
appellant
or
Mrs.
Forward
remarried
or
Debra
became
self
supporting
the
payment
was
to
be
reduced,
The
amount
of
$700
was
not
broken
down
as
to
what
portion
was
for
the
benefit
of
Mrs.
Forward
and
what
portion
was
to
be
used
for
Debra.
Debra
remained
with
her
mother
until
December
1984
when,
because
she
was
not
getting
along
with
her
mother,
left
her
mother's
home
and
moved
into
Forward's
home.
At
the
time
she
was
17
years
of
age.
Notwithstanding
Debra
was
living
with
him
during
1985,
Forward
continued
in
1985
to
make
the
monthly
payments
of
$700
to
his
wife.
The
separation
agreement
was
not
amended,
Forward
stated,
since
he
intended
to
continue
the
payments
until
the
end
of
1985
or
until
the
divorce
was
final,
whichever
was
later.
According
to
Forward
there
was
no
urgency
to
renegotiate
the
separation
agreement
since
he
"intended
to
file
for
divorce
in
1985”.
Forward
filed
a
divorce
petition
in
November
1985.
The
Decree
Nisi,
granted
on
February
5,
1986,
provided
for
monthly
payments
of
$700
to
Mrs.
Forward
until
the
end
of
February
1986;
$500
per
month
from
March
1986
to
the
end
of
1986
and
$300
per
month
during
1987.
At
no
time
in
1985
did
Mrs.
Forward
contribute
any
money
for
Debra's
maintenance.
In
filing
his
income
tax
return
for
1985,
Forward,
in
computing
his
income,
deducted,
in
accordance
with
paragraph
60(b)
of
the
Act,
the
$8,400
he
paid
Mrs.
Forward
in
1985
pursuant
to
the
separation
agreement;
he
also
deducted,
in
computing
his
taxable
income,
$3,439
in
accordance
with
paragraph
109(1)(b)
of
the
Act
since
during
1985
he
supported
Debra
who
was
wholly
dependent
on
him
for
support.
Subsection
109(4),
for
1985,
provided
that:
Where
a
taxpayer
is
entitled
to
a
deduction
in
computing
his
income
for
a
taxation
year
under
paragraph
60(b),
(c)
or
(c.1)
in
respect
of
a
payment
for
the
maintenance
of
a
spouse
or
child,
the
spouse
or
child
shall,
for
the
purposes
of
this
séction,
be
deemed
not
to
be
the
spouse
or
child
of
the
taxpayer.
Thus,
where
a
taxpayer
is
"entitled"
to
a
deduction
under
paragraph
60(b)
because
of
a
payment
for
the
maintenance
of
a
child,
for
purpose
of
any
of
the
provisions
of
section
109
the
child
is
deemed
not
to
be
the
taxpayer's
child.
The
verb
"entitle",
the
present
tense
of
"entitled",
is
defined
by
The
Shorter
Oxford
English
Dictionary
On
Historical
Principles
("Shorter
Oxford
Dictionary"),
as
”.
.
.
111.
To
furnish
with
a
title
to
an
estate,
Hence
gen.
to
give
a
rightful
claim
to
anything.
.
.”.
The
French
language
version
of
subsection
109(4)
contains
the
words
“Lorsqu(e)
.
.
un
contribuable
a
droit
à
une
déduction
.
.
.”.
The
verb
“avoir”,
the
infinitive
tense
of
"a",
means
“to
have".
The
word
droit
is
defined
by
Le
Petit
Robert
I
as:
”.
.
.2
Ce
qui
est
exigible
ou
permis
par
conformité
à
une
règle
précise,
formulée
(loi,
règlement).
V.
Faculté,
habilité,
pérogative,
privilège.
.
.”.
Thus
"Lorsqu(e).
.
.
un
contribuable
a
droit
a
une
deduction”
means
"when
.
.
.
a
taxpayer
has
the
right
to
a
deduction,.
.
.",
or
"when
a
taxpayer
is
entitled
to
a
deduction
.
.
.”.
Under
the
terms
of
the
separation
agreement
Forward
was
obligated
in
1985
to
make
monthly
payments
of
$700
to
Mrs.
Forward
for
her
maintenance
and
for
the
education
and
general
upbringing
of
Debra,
of
whom
she
was
to
have
sole
custody,
care,
control
and
guardianship
and
management.
Forward
was
entitled
to
the
deduction
described
in
paragraph
60(b)
since
all
the
conditions
of
that
provision
were
met.
Paragraph
60(b)
does
not
require
the
child,
for
whose
benefit
payment
is
being
made,
to
live
with
the
parent
who
receives
payment,
although
one
would
normally
assume
this
to
be
the
reason
one
parent
is
being
paid
by
the
other
parent.
The
paying
parent
appears
to
continue
to
be
entitled
to
the
deduction
described
in
paragraph
60(b)
when
the
child,
originally
in
the
custody
of
the
parent
receiving
the
payment,
leaves
the
custody
of
the
recipient
and
payments
are
continued
under
a
written
separation
agreement.
One
would
assume
that
the
separation
agreement
itself
would
determine
the
rights
and
obligations
of
the
spouses,
to
say
nothing
of
the
child,
on
the
occurrence
of
such
an
eventuality
or
that
the
paying
spouse
would
seek
to
renegotiate
the
agreement.
However
this
is
not
the
situation
at
bar.
In
this
appeal
the
facts
are
complicated
by
the
fact
that
the
child
left
the
mother's
home
for
that
of
her
father,
the
taxpayer.
This
additional
fact,
important
to
the
taxpayer
as
it
may
be,
does
not,
in
my
view,
alter
his
right
of
entitlement
to
a
deduction
in
computing
his
income
for
1985
under
paragraph
60(b).
The
monthly
payments
of
the
$700
were
not
predicated
on
Debra
remaining
in
the
de
facto
care,
custody
and
control
of
Mrs.
Forward.
The
separation
agreement
remained
in
force,
without
any
alteration,
during
the
whole
of
1985.
Forward
had
a
legal
obligation
to
pay
Mrs.
Forward
$700
a
month
for
her
benefit
and
for
that
of
Debra
and
fulfilled
that
obligation.
Although
Debra
was
living
in
Forward's
home,
and
he
was
supporting
her,
Forward
could
have
demanded
that
Mrs.
Forward
renegotiate
the
separation
agreement
or
assist
him
in
supporting
Debra
out
of
the
$700
she
received
each
month,
He
took
no
action.
A
generous
and
sincere
father,
he
allowed
his
daughter
into
his
home
and
supported
her;
at
the
same
time
he
continued
making
the
payments
required
under
the
separation
agreement.
In
computing
his
income
for
1985
the
appellant
was
entitled
to
a
deduction
under
paragraph
60(b)
in
respect
of
a
payment
for
maintenance
of
a
child,
Debra;
he
paid
$8,400
in
1985
pursuant
to
a
written
agreement
as
an
allowance
payable
monthly
for
the
maintenance
of
both
the
recipient,
Mrs.
Forward,
thereof
and
a
child
of
the
marriage,
Debra,
and
he
was
living
apart
from,
and
was
separated
pursuant
to
a
separation
agreement
from,
Mrs.
Forward
to
whom
he
was
required
to
make
the
payment
at
the
time
the
payment
was
made
and
throughout
the
remainder
of
1985.
Forward
is
precluded
by
subsection
109(4),
from
treating
Debra
as
a
person
who
was
"connected,
by
blood
relationship,..,
or
adoption,
with”
him,
a
condition
required
by
clause
109(1)(b)(ii)(C):
McDougall
v.
M.N.R.,
35
Tax
A.B.C.
227;
64
D.T.C.
306.
See
subsection
251(6)
for
persons
who
are
connected
by
blood
relationship
and
adoption
and
section
252
for
the
extended
meaning
of
“child”,
Debra
is,
of
course,
connected
by
blood
relationship
or
adoption
to
her
father,
the
appellant,
because
she
is
his
child
but
for
the
purpose
of
section
109
the
connection
is
severed
by
subsection
109(4).
The
deduction
provided
for
in
paragraph
109(1)(b)
was
not
available
to
Forward
in
1985.
For
these
reasons
the
appeal
is
dismissed.
Appeal
dismissed.
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