Jacques Chamberland v. Minister of National Revenue, [1981] CTC 2302, 81 DTC 288

D E Taylor: [Translation] —This appeal which was heard in the city of Montreal (Quebec) on June 11, 1980, was brought following tax assessments in which the Minister of National Revenue refused to allow the taxpayer to deduct the following amounts, which he had paid to his wife or ex-wife Mrs Lucille Dubois, as alimony:

1970 — $5,560

1971 — $6,260

1972 — $6,260

1973 — $6,260

1974 — $4,160

1975 — $5,075

The only point at issue is whether these amounts were paid in accordance with a written settlement and/or a written agreement. The Minsiter of National Revenue based his assessment of the appellant’s taxes for the taxation years 1970 to 1975 inclusive on, inter alia, paragraph 11 (1)(l) of the Income Tax Act, RSC 1952, c 148 and paragraph 60(b) of the Income Tax Act, SC 1970-71-72, c 63, as amended.

The appellant presented the following photocopy of a document (exhibit A-1), on which he based his appeal.

AGREEMENT

AGREEMENT entered into in Quebec City, this 15th day of May, 1969

BETWEEN

DAME LUCILLE CHAMBERLAND, hereinafter referred to as,

THE WIFE

AND

MR JACQUES CHAMBERLAND, hereinafter referred to as

THE HUSBAND

1. The parties have decided by mutual consent to live apart for a certain time in order to alleviate the tension that exists at present in their family relations.

2. The wife shall continue to live in the marital domicile at 1032 Avenue Boisver- dure, Ste-Foy, Quebec and the husband shall live elsewhere.

3. The wife shall have custody of the two children, Luc and Nathalie.

4. The wife shall have the use of all effects and furnishings in the marital domicile.

5. The husband shall pay alimony to the wife, for herself and her children, in the amount of $79 per week, payable in advance every Friday at the residence of the wife.

6. In addition to all housing costs (including municipal and education taxes, mortgage and related costs, repairs and so on) the husband shall pay $100 for summer clothes for the children and shall also pay any unforeseen and extraordinary expenses that may arise.

7. The wife is not working at present but may be called upon from time to time to do book exhibits and the husband has no objection whatsoever to this even if it means that the wife must go out of town.

8. Nothing in this agreement shall prejudice the rights of the parties in any way or affect their right to undertake legal proceedings at any time.

DONE AND SIGNED at Quebec City this 15th day of May 1969.

(Signed) Lucille D Chamberland

Dame Lucille Chamberland

(Signed) Jacques Chamberland

Jacques Chamberland

The appellant was unable to find the original of the agreement produced as exhibit A-1 but claimed that he had signed the original in his lawyer’s office in 1969. On June 10, 1980 (the day before the hearing of the appeal) he signed the photocopy which was produced at the hearing.

Mrs Lucille Dubois, testifying for the respondent, stated that there had never been a written settlement between herself and her ex-husband. In addition, she presented a letter from her lawyer dated June 26, 1969 and accompanied by an agreement to be signed. This letter and agreement, which were produced as exhibit 1-1, read as follows:

BARD, L'HEUREUX, PHILIPPON & TOURIGNY

AVOCATS — BARRISTERS

SAM SCHWARZ BARD, QC	SUITE 309
CLAIRE L’HEUREUX-DUBE	FLORENCE BUILDING
JACQUES PHILIPPON	771 EAST, RUE ST-JOSEPH
CHRISTINE TOURIGNY	QUEBEC (2) CANADA
	June 26, 1969
Mrs. Jacques Chamberland,
1032 Boisverdure,
Ste-Foy, Quebec
Dear Mrs. Chamberland,

We have today received a letter from your husband’s attorney and we are enclosing a copy of this letter for your information.

Also enclosed are the original and two copies of the agreement already signed by your husband. If you find it acceptable, please sign all the copies and return them to us so that we can forward a copy to your husband’s attorney.

Yours truly,

BARD, L’HEUREUX, PHILIPPON & TOURIGNY By: (Signed) Cl

CLD/mp

AGREEMENT
AGREEMENT entered into in Quebec City, this	day of June, 1969
BETWEEN

DAME LUCILLE CHAMBERLAND, hereinafter referred to as,

THE WIFE

AND

MR JACQUES CHAMBERLAND, hereinafter referred to as

THE HUSBAND

1. The parties have decided by mutual consent to live apart for a certain time in order to alleviate the tension that exists at present in their family relations.

2. The wife shall continue to live in the marital domicile at 1032 Avenue Boisver- dure, Ste-Foy, Quebec and the husband shall live elsewhere.

3. The wife shall have custody of the two children, Luc and Nathalie, but the husband shall be able to visit them and take them out every Saturday and Sunday provided he informs the wife by telephone of his intentions at least two days in advance.

4. The wife shall have the use of all effects and furnishings in the marital domicile.

5. The husband shall pay alimony to the wife, for herself and her children, in the amount of $270 per month, payable in two payments of $135 each, to be paid on the 15th and 30th of each month at the residence of the wife.

6. In addition to all housing costs (including municipal and education taxes, mortgage and related costs, repairs and so on) the husband shall also pay, If necessary, any unforeseen and extraordinary expenses that may arise.

7. The wife is not working at present but may be called upon from time to time to do book exhibits and the husband has no objection whatsoever to this even if it means that the wife must go out of town.

8. Nothing in this agreement shall prejudice the rights of the parties in any way or affect their right to undertake legal proceedings at any time.

DONE AND SIGNED at Quebec City this	day of June 1969.
Dame Lucille Chamberland
(Signed) Jacques Ch
Mr Jacques Chamberland

It should be noted that this agreement was signed only by the appellant and was dated “this day of June 1969”, that is one month later than the date appearing on exhibit A-1. Mrs Dubois admitted, however, that she had received from the appellant the amounts that he was claiming as deductions.

In my view the testimony of Mrs Dubois is consistent with the facts and with the evidence submitted. It is possible that there was an “agreement” in principle between the two parties. Moreover, it is clear that the taxpayer continued to provide for the needs of his family during the years in question. This does not mean, however, that he is entitled to deduct the amounts at issue as there was no written agreement signed by both parties.

The appeal is therefore dismissed.

Appeal dismissed.