Couture,
C.J.T.C.
[Translation]:—The
appeal
by
Rita
Gingras
is
from
an
assessment
made
by
the
respondent
on
December
9,
1985
with
respect
to
her
1983
taxation
year.
Under
this
assessment
the
respondent
added
$6,000
to
the
appellant's
income
as
income
from
alimony
payments.
The
evidence
showed
that
the
appellant
had
been
married
to
Claude
Frenette
since
August
20,
1960,
and
on
June
16,
1982
the
spouses
obtained
a
decree
nisi
of
divorce
in
the
Superior
Court
of
the
province
of
Quebec.
The
terms
of
an
agreement
between
the
parties
lawfully
signed
on
June
16,
1982
were
set
out
in
and
enforceable
under
this
judgment.
The
provisions
of
this
agreement
were
as
follows,
and
I
quote:
(2)
The
respondent
shall
pay
to
the
petitioner
as
alimony
for
her
and
her
minor
daughter
Hélène
the
sum
of
six
hundred
dollars
per
month,
beginning
on
July
1,
1982,
by
depositing
the
said
amount
to
account
No
5911
at
the
Caisse
Populaire
de
St-Rédempteur
or
to
any
other
account
that
the
petitioner
may
specify;
(3)
The
alimony
provided
in
the
proceeding
paragraph
shall
be
indexed
in
accordance
with
the
annual
pension
index
established
by
section
119
of
the
Quebec
Pension
Plan
Act
(chapter
R-9),
which
indexation
shall
take
effect
on
January
1,
1983;
(4)
The
respondent
shall
pay
to
the
petitioner
as
additional
alimony
for
her
and
for
her
minor
daughter
Hélène
for
their
establishment
and
maintenance
the
sum
of
one
thousand
dollars
per
month
for
twelve
consecutive
months,
the
first
payment
to
be
made
on
July
1,
1982
and
the
last
payment
on
June
1,
1983,
and
all
payable
by
twelve
post-dated
cheques.
In
her
income
tax
return
for
the
taxation
year
under
appeal
the
appellant
reported
the
12
payments
of
$600
each,
or
$7,200,
as
income,
but
did
not
include
the
six
payments
of
$1,000
each
provided
in
section
4
of
the
agreement,
or
$6,000,
claiming
that
this
amount
was
not
alimony
within
the
meaning
of
paragraph
56(1)(b)
of
the
Income
Tax
Act
(the
Act).
She
argued
that
this
was
a
lump
sum
payment
of
$12,000
which
her
former
husband
had
agreed
to
pay
to
her
in
addition
to
the
alimony.
Following
an
application
with
respect
to
the
alimony
made
to
Superior
Court
and
heard
by
the
Honourable
Judge
Henri
Larue,
the
stenographic
notes
of
the
testimony
of
Claude
Frenette,
which
was
heard
on
December
17,
1984,
were
entered
by
the
appellant.
The
following
answers
were
given
to
the
questions
counsel
for
the
appellant
asked
Claude
Frenette:
[Translation]
Q.
To
the
Caisse
Populaire
de
Lévis,
twelve
thousand
eighteen
ninety-five?
A.
That
is
the
money
I
borrowed
to
give
to
Ms
[Gingras].
Q.
That
is
the
twelve
thousand
dollars
from
.
.
.
A.
Twelve
thousand
dollars
.
.
.
Q.
A
lump
sum
that
was
paid
to
Ms
[Gingras]
over
the
period
of
a
year?
A.
That's
right.
I
was
the
one
who
paid
it
back.
Look
at
the
amount
at
the
end.
[Emphasis
added.]
The
appellant
explained
in
her
testimony
that
it
had
been
agreed
that
her
former
husband
would
pay
her
a
lump
sum
of
$12,000
in
12
monthly
payments
and
that
when
she
was
given
the
agreement
to
sign
she
at
first
refused
to
sign
because
the
provisions
of
paragraph
4
were
not
in
accordance
with
the
agreement,
since
it
provided
that
the
payments
in
question
were
designated
as
alimony.
However,
at
the
insistence
of
her
solicitor
who
advised
her
to
sign
it
because,
he
said,
these
details
could
be
corrected
later,
she
ultimately
agreed
and
signed
the
agreement.
Article
1234
of
the
Civil
Code
of
the
Province
of
Quebec
provides
that
testimony
cannot
be
presented
to
contradict
the
terms
of
a
valid
written
agreement.
The
effect
of
this
provision,
however,
is
only
as
between
the
parties
who
are
signatories
to
the
instrument.
This
statement
has
been
confirmed
on
many
occasions
in
the
case
law,
and
particularly
in
M.N.R.
v.
Ouellette
&
J
E
Brett,
[1971]
C.T.C.
121;
71
D.T.C.
5094,
heard
by
the
Exchequer
Court.
Because
the
respondent
was
not
a
party
to
the
agreement,
the
appellant's
oral
evidence
must
accordingly
be
considered
by
the
Court,
and
on
this
point
I
have
no
reason
to
doubt
the
truth
of
her
allegations.
Moreover,
other
aspects
of
the
evidence
appear
to
support
what
she
alleges
with
respect
to
the
$1,000
per
month
payments
provided
in
section
4.
First,
if
this
was
really
additional
alimony
as
argued
by
the
respondent,
why
would
it
not
have
been
included
in
section
2,
rather
than
writing
a
special
section
to
that
effect,
and
adding
"were
for
the
establishment
and
maintenance
of
the
appellant
and
her
minor
daughter".
If
these
payments
were
of
the
same
nature
as
those
provided
in
section
2,
there
would
have
been
no
need
to
include
these
additions
in
the
document.
The
argument
that
the
payments
provided
in
section
4
were
not
of
the
same
nature
as
those
provided
in
section
2
is
strengthened
by
the
fact
that
the
latter
payments
are
expressly
indexed
according
to
the
annual
pension
index
established
by
section
119
of
the
Quebec
Pension
Plan
Act,
while
the
$1,000
payments
provided
in
section
4
are
not
indexed,
even
though
six
payments
were
payable
in
1983
and
indexation
began
on
January
1,
1983.
Although
these
differences,
which
appear
in
the
agreement,
are
not
decisive
in
themselves,
when
they
are
considered
in
the
context
of
the
situation
that
I
must
examine
and
of
the
admission
by
Frenette
on
cross-
examination,
they
are
sufficient
to
convince
me
that
the
two
categories
of
payments
were
of
a
different
nature.
The
payments
under
section
2
were
alimony
payments
within
the
meaning
of
the
Act,
as
admitted
by
the
appellant,
while
the
payments
provided
in
section
4
in
effect
represented
payment
by
Claude
Frenette
of
a
lump
sum
of
$12,000
payable
at
$1,000
per
month.
For
these
reasons,
the
appeal
is
allowed
and
the
appellant
is
entitled
to
her
party-and-party
costs.
Appeal
Allowed.
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