Guy
Tremblay
[TRANSLATION]:—This
case
was
heard
at
Quebec
City,
Quebec
on
February
21,
1980.
It
was
taken
under
advisement
on
May
8,
1980
after
final
pleadings
were
filed
by
the
parties.
1.
Point
at
issue
The
issue
is
whether
an
unsigned
written
agreement
between
the
appellant
and
his
wife
is
valid
within
the
meaning
of
paragraph
60(b)
of
the
Income
Tax
Act,
1972,
so
as
to
enable
the
appellant
to
deduct
in
the
calculation
of
his
income
for
the
1975
taxation
year
the
sums
paid
monthly
from
January
to
July.
2.
Burden
of
proof
The
burden
is
on
the
appellant
to
show
that
the
respondent’s
assessment
is
incorrect.
This
burden
of
proof
derives
not
from
one
particular
section
of
the
Income
Tax
Act,
but
from
a
number
of
judicial
decisions,
including
the
judgment
delivered
by
the
Supreme
Court
of
Canada
in
Johnston
v
MNR,
[1948]
CTC
195;
3
DTC
1182.
This
judgment
also
states
that
this
presumption
also
applies
to
the
facts
relied
on
by
the
respondent
in
issuing
his
assessment.
3.
Facts
alleged
by
the
respondent
These
facts
are
given
in
the
seventh
paragraph
of
the
reply
to
the
notice
of
appeal,
as
follows:
In
assessing
the
appellant
for
the
1975
taxation
year,
the
respondent
relied
inter
alia
on
the
following
presumptions
of
fact:
(a)
during
the
period
in
question,
from
January
1,
1975
to
July
1,
1975,
the
appellant
was
not
living
apart
from
his
spouse
pursuant
to
a
divorce,
judicial
separation
or
written
separation
agreement;
(b)
the
sum
claimed
was
not
paid
by
the
appellant
during
the
year
in
question
pursuant
to
a
decree,
order
or
judgment
of
a
competent
tribunal
or
pursuant
to
a
written
agreement.
4.
Facts
adduced
in
evidence
The
facts
are
not
in
dispute.
4.01
On
March
4,
1973,
the
appellant
submitted
a
draft
of
a
written
agreement
to
his
wife,
who
accepted
it.
This
agreement,
filed
as
Exhibit
A-1,
is
entitled
“Proposed
separation
agreement”.
4.02
One
of
the
written
clauses
provided
that
the
appellant
would
pay
the
sum
of
$825
to
his
wife.
After
the
document
was
drawn
up,
and
following
a
discussion
between
the
spouses,
it
was
agreed
that
the
amount
would
be
$835;
however,
nothing
written
appears
on
document
A-1.
4.03
This
alleged
written
agreement
is
initialled
by
the
appellant
but
is
neither
signed
nor
initialled
by
his
wife.
4.04
From
January
to
June
1975
the
following
amounts
were
paid
by
the
appellant
to
his
wife:
$728
in
January;
$835
in
February;
$835
in
March;
$835
in
April;
$835
in
May;
and
$835
in
June
(Exhibit
A-2).
4.05
Following
an
interim
judgment,
the
appellant
made
monthly
payments
of
$1,000
(Exhibit
A-2).
4.06
The
proposed
separation
agreement
(Exhibit
A-1)
reads
as
follows:
PROPOSED
SEPARATION
AGREEMENT
1.
RIGHT
OF
OCCUPATION
OF
THE
HOUSE
Mrs
Jacoby
will
continue
to
occupy
with
the
children,
to
live
in
the
bungalow
situated
at
2790
Or
de
la
Marquise
.
.
.
which
was
the
matrimonial
home
at
the
time
of
the
separation,
a
bungalow
owned
by
Mr
Jacoby,
on
the
condition
that
she
pay
the
fixed
and
variable
charges
with
which
it
may
be
encumbered
or
burdened,
out
of
the
support
monies
to
be
paid
to
her
by
Mr
Jacoby.
The
above
occupation
right
shall
be
considered
as
payment
in
kind
of
part
of
the
support
monies
allocated
for
Mrs
Jacoby
and
the
children.
This
payment
is
valued
at
$235.00
dollars
per
month,
broken
down
as
follows:
|
First
mortgage
PIT
|
$155
|
|
Second
mortgage
|
28
|
|
Heating
|
20
|
|
Electricity
|
10
|
|
Property
insurance
|
5
|
|
Telephone
|
10
|
|
Sewer
and
water
tax
|
7
|
|
Total
|
$235
per
month
|
Mrs
Jacoby
will
be
responsible
for
minor
maintenance
of
the
house
and
its
messuages
for
as
long
as
she
occupies
the
premises.
For
the
purposes
of
this
agreement,
minor
maintenance
is
deemed
to
comprise
the
kind
of
repairs
for
which
a
tenant
is
ordinarily
responsible
in
law;
it
also
includes
interior
painting.
If
Mr
Jacoby
should
decide
to
sell
the
property,
Mrs
Jacoby
shall
allow
the
premises
to
be
visited
by
potential
buyers.
The
costs
of
moving
and
setting
up
house
elsewhere
occasioned
by
such
a
sale
will
be
borne
by
Mr
Jacoby.
If
the
bungalow
should
be
sold,
Mr
Jacoby
will
pay
to
Mrs
Jacoby,
instead
of
the
sum
of
$235.00,
a
sum
equivalent
to
the
rental
payment
for
suitable
rented
premises
that
correspond
to
the
family’s
requirements.
If
Mrs
Jacoby
fails
to
pay
when
due
the
whole
or
a
part
of
the
fixed
and
variable
expenses
with
which
the
bungalow
is
burdened
and
encumbered
(see
details)
out
of
the
support
monies
to
be
paid
to
her
monthly
by
Mr
Jacoby,
the
latter
may
allocate
part
of
the
following
month’s
support
payment
to
the
payment
of
these
expenses,
provided
that
he
can
show
by
receipts
that
the
money
has
been
used
for
this
purpose.
2.
DISSOLUTION
OF
THE
MATRIMONIAL
REGIME
Mrs
Jacoby
will
retain
full
ownership
of
all
the
furniture
in
the
house
inhabited
by
the
parties
at
the
time
of
their
separation.
She
will
also
retain
full
ownership
of
the
Volkswagen
automobile
.
..
which
Mr
Jacoby
has
just
purchased
for
her
to
use
as
her
own
property.
Mrs
Jacoby
will
turn
over
to
Mr
Jacoby
any
personal
effects
which
he
has
left
in
the
house
upon
his
departure,
the
furniture
in
his
office
and
certain
books,
magazines
and
other
written
materials.
The
gift
of
furniture
constitutes
the
execution
of
the
gift
provided
for
in
the
|
contract
of
marriage
made
between
the
parties
on
the
|
of
|
at
|
|
,
recorded
as
number
|
,
which
obligation
has
been
discharged.
|
|
The
provisions
of
this
contract
of
marriage
for
a
gift
made
in
contemplation
of
death
is
not
affected
by
this
agreement.
The
snowblower,
lawnmower
and
the
various
tools
and
items
of
equipment
used
in
the
maintenance
of
the
house
constitute
appurtenances
of
the
property.
Mr
Jacoby
will
retain
ownership
of
the
camping
trailer
stored
behind
the
house.
He
may
either
leave
it
where
it
is
or
remove
it.
3.
MAINTENANCE
AND
CUSTODY
OF
THE
CHILDREN
Mrs
Jacoby
is
to
have
custody
of
the
children
so
long
and
for
as
long
as
she
is
ina
position
to
bring
them
up,
take
care
of
them
and
establish
them
in
life.
Mr
Jacoby
will
retain
the
right
to
oversee
the
maintenance
and
education
of
the
children.
The
choice
of
educational
institutions
will
be
made
by
mutual
agreement
of
the
parties
acting
in
good
faith.
Right
of
access
to
the
children
outside
the
mother’s
home.The
right
of
access
to
the
children
outside
the
mother’s
home
will
be
decided
by
mutual
agreement
of
the
parties
acting
in
good
faith.
At
the
minimum,
however,
it
must
take
the
form
of
a
twenty-four-hour
visit
once
a
week.
Mr
Jacoby
will
not
be
obliged
to
exercise
his
rights
but
they
will
not
lapse
through
lack
of
use.
Right
of
access
to
the
children
within
the
mother’s
home.
Mr
Jacoby
may
visit
his
children
at
least
once
a
week
for
a
five-hour
period.
Before
doing
so
he
shall
give
Mrs
Jacoby
reasonable
notice.
She
shall
give
him
an
opportunity
to
visit
his
children
entirely
undisturbed.
This
visiting
right
will
not
lapse
through
lack
of
use.
Mrs
Jacoby
will
take
reasonable
steps
to
provide
that
the
children
may
carry
on
or
engage
in
or
continue
to
carry
on
or
engage
in
extracurricular
activities
of
an
enriching
and
developmental
nature
(skating,
art,
ballet
.
..).
In
the
event
of
disagreement
between
the
parties
regarding
the
maintenance
or
education
of
the
children
or
the
exercise
of
rights
of
access
outside
or
within
the
mother’s
home
or
vacation
rights,
either
of
the
parties
may
refer
the
matter
to
the
court,
which
will
decide
in
the
best
interests
of
the
children
and
within
the
limits
of
the
clauses
in
this
agreement.
Mr
Jacoby
may
object
to
the
children’s
associating
with
certain
persons
of
the
male
sex
or
staying
in
their
homes,
if
it
is
in
the
interest
of
the
children
that
such
an
association
or
visits
should
end.
In
the
event
of
disagreement,
each
of
the
parties
may
refer
the
matter
to
the
court,
which
will
decide
in
the
best
interests
of
the
children.
Each
party
shall
notify
the
other
promptly
if
one
of
the
children
should
contract
a
serious
illness
while
in
his
or
her
care.
“Serious
illness”
means
any
illness
which
confines
the
child
to
bed
for
more
than
two
days.
Mrs
Jacoby
shall
turn
over
to
Mr
Jacoby
all
documents
issued
to
her
by
professionals
such
as
doctors,
dentists,
pharmacists
and
so
on
in
connection
with
the
rendering
of
services
to
her
[or]
the
children
which
are
not
covered
in
whole
or
in
part
by
the
Quebec
Health
Insurance
Plan,
so
that
he
may
be
reimbursed
for
the
costs
of
these
services
by
the
private
organizations
to
which
he
pays
contributions.
Mrs
Jacoby
will
forward
the
children’s
report
cards
to
Mr
Jacoby
when
they
are
issued
by
the
school
authorities
for
signature.
Rights
of
extended
access
or
vacation
rights
will
be
settled
by
mutual
agreement
of
the
parties
acting
in
good
faith.
They
are
not
to
be
of
lesser
duration
than
six
days
over
Christmas
and
Easter
and
one
month
during
the
school
summer
vacation.
Mr
Jacoby
will
not
be
obliged
to
exercise
his
rights
but
his
rights
will
not
lapse
through
total
or
partial
non-use.
The
parties
shall
consult
each
other
on
any
important
matter
respecting
the
health,
welfare,
maintenance,
education
and
development
of
the
children.
The
best
interests
of
the
children
shall
be
their
guide.
If
they
cannot
agree
on
what
the
interest
of
the
children
requires,
they
should
be
guided
by
their
actions
in
similar
circumstances
in
the
past.
4.
SUPPORT
Mr
Jacoby
will
pay
to
Mrs
Jacoby
as
support
for
her
and
the
children
the
sum
of
$825.00
per
month,
on
or
near
the
first
of
each
month,
by
cheque
or
bank
draft.
This
sum
breaks
down
as
follows:
|
Occupancy
of
the
house
(see
1
above)
|
$235
|
|
Food
for
three
|
150
|
|
Current
expenditures
for
three
including
recreation,
car
|
|
|
maintenance
and
school
supplies
|
200
|
|
Clothing
for
three
people
|
55
|
|
Annual
expenses
(school
fees
$300,
medications
$200,
car
|
|
|
insurance
$100)
|
50
|
|
Tax
coverage
|
135
|
|
$825
|
The
annual
expenses
included
in
the
support
payment
will
be
reduced
by
a
sum
corresponding
to
the
educational
fees
of
Mrs
Jacoby
once
she
has
obtained
her
certificate
of
community
nursing.
Mrs
Jacoby
agrees
to
turn
over
to
Mr
Jacoby
all
the
credit
cards
which
she
currently
uses,
which
render
him
liable
to
pay
the
sums
incurred
in
their
use.
She
also
agrees
not
to
pledge
his
credit
in
the
course
of
household
and
other
transactions.
5.
FINAL
PROVISIONS
It
is
recognized
by
Mr
and
Mrs
Jacoby
that
this
agreement
has
not
been
made
for
the
purpose
of
achieving
the
dissolution
of
their
marriage;
each
of
them
remains
entirely
free
to
bring
an
action
for
divorce
or
judicial
separation,
to
contest
such
proceedings
or
to
abandon
them
as
he
or
she
sees
fit.
This
agreement
will
exist
as
long
as
the
parties
are
de
facto
living
apart.
If
cohabitation
should
be
resumed
or
if
an
action
for
judicial
separation
or
divorce
should
be
brought,
this
agreement
will
become
null
and
void.
Cohabitation
within
the
meaning
of
this
clause
is
not
resumed
where
the
parties
live
together
again
for
a
period
of
less
than
30
days
with
a
view
to
a
reconciliation.
The
clauses
of
this
agreement
bearing
on
financial
matters
will
have
effect
only
as
long
as
Mr
Jacoby’s
income
does
not
diminish.
If
his
income
diminishes
the
parties
will
agree
on
new
financial
provisions.
Mr
and
Mrs
Jacoby
will
be
entitled
to
ask
for
this
agreement
to
be
reviewed
every
two
years
for
as
long
as
it
remains
in
effect.
The
parties
recognize
finally
that:
1.
The
figures
used
in
calculating
the
support
monies
have
been
overestimated
voluntarily
in
consideration
of
the
good
will
and
good
faith
shown
by
each
of
the
parties
during
the
negotiation
of
this
agreement
and
during
the
difficult
period
of
months
leading
up
to
their
de
facto
separation.
2.
The
right
granted
to
Mrs
Jacoby
to
occupy
the
present
house
which
was
the
matrimonial
home
at
the
time
of
the
parties’
separation
is
based
upon
the
same
considerations.
This
proposed
separation
agreement
was
submitted
on
March
4,
1973.
The
appellant
attempted
to
file
a
sworn
statement
by
his
wife
to
the
effect
that
she
acknowledged
having
received
the
amounts
mentioned.
Upon
objection
being
taken
by
counsel
for
the
respondent
to
the
filing
of
the
said
document,
it
was
not
filed.
4.07
In
the
calculation
of
her
income
the
appellant’s
wife
included
the
sums
received
above.
The
appellant
claimed
as
a
deduction
the
sums
paid
to
his
wife
in
the
calculation
of
his
own
income.
4.08
In
assessing
the
appellant,
the
respondent
disallowed
as
deductions
the
sums
paid
by
the
appellant
from
January
to
June
1975
inclusive.
5.
ACT-CASE
LAW—ARGUMENTS
OF
THE
PARTIES—ANALYSIS
5.01
Act
The
statutory
provisions
involved
in
the
case
at
bar
are
paragraph
60(b)
and
subsection
248(1)
“separation
agreement”
of
the
new
Income
Tax
Act,
and
sections
2800
and
3501
of
the
Income
Tax
Regulations.
These
sections
read
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;
248.
(1)
In
this
Act,
“separation
agreement”
includes
an
agreement
by
which
a
person
agrees
to
make
payments
on
a
periodic
basis
for
the
maintenance
of
a
former
spouse,
children
of
the
marriage,
or
both
the
former
spouse
and
children
of
the
marriage,
after
the
marriage
has
been
dissolved
whether
the
agreement
was
made
before
or
after
the
marriage
was
dissolved;
2800.
(1)
Any
election
made
under
subsection
104(14)
of
the
Act
in
respect
of
a
taxation
year
shall
be
made
by
filing
with
the
Minister
the
following
documents:
(a)
a
statement
(i)
making
the
election
in
respect
of
the
year,
(ii)
designating
the
part
of
the
accumulating
income
in
respect
of
which
the
election
is
being
made,
and
(iii)
signed
by
the
preferred
beneficiary
and
a
trustee
having
the
authority
to
make
the
election;
and
(b)
a
statement
signed
by
the
trustee
showing
the
computation
of
the
amount
of
the
preferred
beneficiary’s
share
in
the
accumulating
income
of
the
trust
for
the
year
in
accordance
with
paragraph
104(15)(a),
(b)
or
(c)
of
the
Act,
as
the
case
may
be,
together
with
such
information
concerning
the
provisions
of
the
trust
and
its
administration
as
is
necessary
for
this
purpose.
3501.
(1)
Every
official
receipt
issued
by
a
registered
organization
shall
contain
a
statement
that
it
is
an
official
receipt
for
income
tax
purposes
and
shall
show
clearly
in
such
a
manner
that
it
cannot
be
readily
altered,
(a)
the
name
and
address
in
Canada
of
the
organization
as
recorded
with
the
Minister;
(b)
the
registration
number
assigned
by
the
Minister
to
the
organization;
(c)
the
serial
number
of
the
receipt:
(d)
the
place
or
locality
where
the
receipt
was
issued;
(e)
the
day
on
which,
or
the
year
during
which,
the
donation
was
received;
(f)
the
day
on
which
the
receipt
was
issued
where
that
day
differs
from
the
day
referred
to
in
paragraph
(e);
(g)
the
name
and
address
of
the
donor
including,
in
the
case
of
an
individual,
his
first
name
and
initial;
(h)
the
amount
of
the
donation;
and
(i)
the
signature,
as
provided
in
subsection
(2)
or
(3),
of
a
responsible
individual
who
has
been
authorized
by
the
organization
to
acknowledge
donations.
(2)
Except
as
provided
in
subsection
(3),
every
official
receipt
shall
be
signed
personally
by
an
individual
referred
to
in
paragraph
(1)(i).
5.02
Case
law
and
legal
writing
The
following
cases
and
learned
articles
were
principally
referred
to
by
the
parties:
1.
Suburban
Enterprises
Inc
v
Prévost,
[1955]
BR
389;
2.
Iwanczuk
v
Center
Square
Developments
Ltd,
61
DLR
(2d)
193;
3.
Albion
Construction
Company
v
Moreau,
[1956]
BR
830;
4.
Rochon
v
Bennette
(1922),
60
RJQ
537;
5.
Durand
v
Credit
St-Laurent
Inc,
[1966]
CS
282;
6.
Astier
Favrot
et
Cie
c
Mendelsohn
et
autres
(1925),
63
RJQ
225;
7.
Dufresne
et
Locke
Limitée
c
Steine
(1925),
39
RJQ
511;
8.
Reid
v
MNR,
[1972]
CTC
2661;
72
DTC
1540;
9.
Ardley
v
MNR,
(unreported
judgment)
79-939;
10.
MNR
v
Armstrong,
[1956]
CTC
93;
56
DTC
1044;
11.
E
D
Arnold,
Jr
v
MNR,
[1972]
CTC
2235;
72
DTC
1199;
12.
Beatty
v
MNR,
13
Tax
ABC
285;
55
DTC
444;
13.
Bentley
v
MNR,
11
Tax
ABC
413;
54
DTC
510;
14.
Chenail
v
MNR,
[1968]
Tax
ABC
641;
68
DTC
498;
15.
Collins
v
MNR,
[1976]
CTC
2048;
76
DTC
1056;
16.
Desjardins
v
MNR,
[1979]
CTC
2881;
79
DTC
734;
17.
Donaldson
v
MNR,
[1969]
Tax
ABC
1119;
69
DTC
752;
18.
Fleury
v
MNR,
[1979]
CTC
2878;
79
DTC
476;
19.
Fryer
v
MNR,
31
Tax
ABC
143;
63
DTC
176;
20.
J
V
R
Gagné
v
MNR,
[1976]
CTC
2163;
76
DTC
1125;
21.
Dr
E
D
Gagnon
v
MNR,
[1966]
Tax
ABC
58;
66
DTC
319;
22.
Griep
v
MNR,
[1970]
Tax
ABC
1025;
70
DTC
1661;
23.
Aubry
v
HMQ,
[1976]
CTC
598;
76
DTC
6343;
24.
Guèvremont
v
MNR,
[1978]
CTC
2949;
78
DTC
1678;
25.
Haigh
v
MNR,
[1971]
Tax
ABC
434;
71
DTC
308;
26.
Hardtman
v
HMQ,
[1977]
CTC
358;
77
DTC
5219;
27.
Hardy
v
MNR,
[1978]
CTC
3120;
78
DTC
1802;
28.
Hobbs
v
MNR,
[1970]
Tax
ABC
1187;
70
DTC
1744;
29.
Horkins
v
HMQ,
[1976]
CTC
52;
76
DTC
6043;
30.
Kapel
v
MNR,
[1979]
CTC
2187;
79
DTC
199;
31.
Kostiner
v
MNR,
32
Tax
ABC
124;
63
DTC
478;
32.
Lumbers
v
MNR,
[1944]
CTC
67;
2
DTC
631;
33.
Milburn
v
MNR,
[1979]
CTC
2007;
79
DTC
24;
34.
No
302
v
MNR,
14
Tax
ABC
170;
55
DTC
653;
39.
No
345
v
MNR,
15
Tax
ABC
236;
56
DTC
327;
36.
Pezet
v
MNR,
[1974]
CTC
2315;
74
DTC
1246;
37.
Smith
v
MNR,
[1979]
CTC
3055;
79
DTC
827;
38.
Stafford
v
MNR,
[1971]
Tax
ABC
332;
71
DTC
247;
39.
Vaillancourt
v
MNR,
[1978]
CTC
3157;
78
DTC
1829;
40.
Volk
v
MNR,
[1977]
CTC
2012;
77
DTC
12;
41.
White,
Jr
v
MNR,
29
Tax
ABC
187;
62
DTC
271;
42.
Yuen
v
MNR,
14
Tax
ABC
363;
56
DTC
116;
and
43.
Zarbatany
v
MNR,
[1974]
CTC
2195;
74
DTC
1134.
The
appellant
referred
to
the
following
citations
taken
from
Halsbury’s
Laws
of
England
(Third
Edition):
VOL.
8
1.
95.
Simple
contracts.
Simple
contracts
include
all
contracts
which
are
not
contracts
of
record
or
contract
under
seal.
Simple
contracts
may
be
expressed
either
by
word
of
mouth
or
in
writing,
or
partly
in
the
one
way
and
partly
in
the
other
(m);
or
may
be
either
wholly
or
partly
implied.
(m)
In
certain
cases
contracts
are
required
by
law
to
be
made
in
writing;
but
these
are
none
the
less
simple
contracts,
for
they
derive
no
efficacy
from
their
form
and
are
not
binding
unless
there
is
consideration
(Rann
V.
Hughes
(1778)
7
Term
Rep
350,
n,
HL).
The
effect
of
the
requirement
is
to
render
the
contract
incapable
of
proof
unless
it
is
in
writing;
see
p
89,
post.
p
57
2.
165.
Signature.
The
statutory
provisions
which
require
a
note
or
memorandum
in
writing
(h)
do
not
require
the
memorandum
to
be
signed
(i)
by
both
parties,
but
only
by
the
party
to
be
charged.
A
memorandum
signed
by
one
party
makes
the
contract
enforceable
against
him,
though
it
is
not
signed
by
the
other
party
(j),
and
a
written
proposal
signed
by
one
party
and
accepted
Orally
by
the
other
is
sufficient
to
bind
the
former
(k);
but
such
a
proposal
must
show
to
whom
it
is
made
(I).
Where
an
agreement
is
signed
in
counterpart,
and
there
is
a
complete
memorandum
as
against
one
party,
it
is
not
a
defence
to
an
action
by
the
other
party
that
there
is
an
error
in
the
memorandum
signed
by
him
(m).
166.
Form.
For
the
purpose
of
satisfying
the
statutory
provisions
(o)
and
the
enactments
which
in
part
replace
it
(p)
no
special
form
is
required
for
a
memorandum
(q).
p
94
3.
181.
Requirements.
It
is
sufficient
if
the
memorandum
bears
the
signature
of
the
party
to
be
charged
in
the
action
or
of
his
agent
(p)
unless
it
is
shown
that
he
only
intended
to
be
bound
in
the
event
of
the
other
party
also
signing
a
memorandum,
so
as
to
make
the
other
party’s
signature
a
condition
precedent
to
his
liability
(q).
The
signature
must
be
so
placed
as
to
show
that
it
was
intended
to
relate
and
refer
to,
and
that
in
fact
it
does
relate
and
refer
to,
every
part
of
the
instrument
(r).
It
does
not,
however,
signify
in
what
part
of
the
instrument
the
signature
is
to
be
found
(s)
if
it
is
inserted
in
such
a
manner
as
to
have
the
effect
of
authenticating
the
whole
of
the
instrument.
p
104
4.
183.
What
amounts
to
a
signature.
A
signature
in
pencil
is
sufficient
(a),
and
also
a
signature
by
initials
(b),
or
by
means
of
a
stamp
or
a
mark
(d),
(.
.
.).
(b)
Chichester
v
Cobb
(1866),
14
LR
433;
in
the
Goods
of
Blewitt
(1880),
5
PD
116
(where
a
signature
by
initials
was
decided
to
be
sufficient
under
the
wills
Act);
(.
.
.).
p
105
VOL.
11
620.
Signature.
An
agreement
in
writing
must
be
signed
either
by
all
the
parties,
or
by
the
party
to
be
charged
therewith,
in
such
a
manner
as
to
authenticate
it
(e).
Under
the
Statute
of
Frauds
(f),
it
is
sufficient
that
the
writing
shall
be
signed
by
the
party
to
be
charged
there
with
(g),
and
various
statutes
which
require
a
contract
to
be
in
writing
require
only
signature
by
one
party
(h).
Other
statutes
require
the
writing
to
be
signed
by
both
or
all
the
parties
(i).
Where
a
statute
simply
requires
an
agreement
to
be
writing,
without
expressly
referring
to
signature,
it
may
be
sufficient
if
the
agreement
is
signed
by
the
party
to
be
charged
therewith
(k).
p
377-378.
5.03
Arguments
of
the
parties
5.03.1
This
is
not
the
first
time
that
a
case
of
this
kind
has
come
before
the
Board.
It
is
certainly
the
first
time,
however,
that
the
parties
have
furnished
such
numerous
and
such
complete
legal
arguments.
At
the
hearing,
the
appellant
made
oral
pleadings
and
provided
the
Board
with
a
written
summary
of
his
arguments.
The
respondent
asked
to
respond
in
writing,
and
the
appellant
entered
a
substantial
reply.
The
Board
thinks
it
worthwhile
to
reproduce
these
submissions
in
full
because
of
the
importance
of
the
arguments,
the
nature
of
the
case
and
the
impact
of
whatever
decision
is
taken.
A.
Argument
of
the
appellant
“Legal
arguments
1.
The
case
at
bar
differs
from
the
cases
where
the
Tax
Review
Board
or
the
Federal
Court
has
had
to
rule
on
section
60(b)
of
the
Income
Tax
Act.
When
the
majority
of
cases
dealing
with
the
subject
are
examined,
there
are
few
which
expressly
require
signature
of
the
written
document.
However
that
may
be,
it
is
important
for
the
purposes
of
our
submission
to
look
at
the
documents
which
were
challenged
in
these
cases,
in
order
better
to
understand
the
decisions.
Thus,
it
has
been
decided
that
the
following
could
not
constitute
a
written
agreement:
(1)
A
document
which
was
neither
signed
by
the
taxpayer
not
dated.
Reid
v
MNR,
72
DTC
1540.
(2)
A
memorandum
which
was
neither
dated
nor
signed,
for
notes
on
a
piece
of
paper
cannot
constitute
a
written
agreement.
Fryer
v
MNR.
(3)
A
simple
exchange
of
letters.
Gagnon
v
MNR,
[1966]
Tax
ABC
58;
Griep
v
MNR,
[1970]
Tax
ABC
1025;
Kostiner
v
MNR,
32
Tax
ABC
124;
No
302
v
MNR,
[1955]
Tax
ABC
170;
White
v
MNR,
[1962]
Tax
ABC
187;
MNR
v
Guèvremont,
78
DTC
1678.
(4)
Letters
written
18
months
afterwards
and
dealing
only
with
the
maintenance
of
the
children.
No
345
v
MNR,
56
DTC
327.
(5)
Draft
agreements
which,
according
to
the
evidence,
were
neither
signed
nor
accepted.
Horkins
v
HMQ,
76
DTC
6043
(FC).
A
draft
agreement
prepared
by
the
wife
but
not
accepted
by
the
husband
who,
after
the
event,
wished
to
have
it
considered
a
written
agreement.
Hardy
v
MNR,
78
DTC
1802.
(6)
A
series
of
cheques
which
amounted
only
to
evidence
that
payments
had
been
made
under
an
oral
agreement.
Yuen
v
MNR,
56
DTC
116;
Beatty
v
MNR,
55
DTC
444;
MNR
v
Guèvremont,
78
DTC
1678.
(8)
A
written
agreement
properly
made
but
with
retroactive
effect
to
validate
payments
made
earlier
under
an
oral
agreement.
Pezet
v
MNR,
74
DTC
1246;
Che-
nail
v
MNR,
68
DTC
498.
(9)
A
simple
oral
agreement
coupled
with
a
refusal
to
comply
with
a
written
agreement.
Zarbatany
v
MNR,
[1974]
CTC
2195.
(10)
A
written
agreement
which
fixed
the
support
payments
expressly
only
for
one
year
but
stipulated
for
the
subsequent
years
that
the
parties
would
renegotiate
the
amount
of
the
payments.
The
taxpayer
in
that
case
was
not
able
to
deduct
the
amount
for
the
subsequent
taxation
years,
which
had
not
been
established
in
a
written
agreement.
Chartier
v
HMQ,
1978-03-13
no
09-101401-769
(CA).
It
is
evident
from
all
these
cases
that
the
tax
law,
and
in
particular
with
regard
to
support
allowances,
is
to
be
strictly
construed
and
a
formal
approach
is
required
in
order
to
prevent
tax
evasion
and
tax
fraud;
the
courts
also
want
to
ensure
that
deduction
is
permitted
only
when
the
payments
are
made
pursuant
to
a
written
agreement
which
existed
and
was
in
force
at
the
time
of
the
taxation
year
for
which
the
taxpayer
is
requesting
a
deduction;
that
is
why
the
courts
do
not
recognize
informal
documents
which
do
not
establish
clearly
agreement
by
the
parties
or
the
date
of
the
agreement.
On
this
point
many
of
these
decisions
state
impliedly
or
expressly
that
the
alleged
written
agreement
must
possess
legal
effect,
that
is,
it
must
bind
the
parties;
that
is
why
the
document
must
be
formal
(on
this
subject
see
Reid
v
MNR,
supra;
see
especially
Fryer
v
MNR,
supra,
where
the
court
says
that
the
document
must
be
capable
of
being
used
as
a
basis
for
an
action
brought
by
the
wife
against
the
husband
for
non-payment
before
the
appropriate
court
without
her
being
obliged
to
bring
in
extrinsic
evidence.
It
thus
remains
to
be
determined
if
the
document
which
is
the
subjectmatter
of
the
present
challenge
meets
the
requirements
of
the
Act.
2.
Does
the
document
in
question
constitute
a
“written
separation
agreement”
within
the
meaning
of
paragraph
60(b)
of
the
Income
Tax
Act?
A.
Is
it
a
written
agreement?
This
concept
must
be
interpreted
according
to
the
laws
prevailing
in
the
provinces;
this
is
what
the
Federal
Court
did
in
Horkins
v
HMQ,
cited
above.
Let
us
therefore
look
at
the
civil
law
and
the
common
law.
(a)
Civil
law
In
the
civil
law
of
Quebec,
a
written
agreement
may
be
validly
made
by
a
written
acceptance,
an
oral
acceptance
or
an
acceptance
inferred
from
the
circumstances.
—
oral
acceptance
The
document
being
challenged
was
the
subject-matter
of
negotiations
between
the
appellant
and
his
former
spouse,
which
explains
the
handwritten
annotations
in
the
margin,
and
was
signed
by
the
appellant
once
the
negotiations
were
completed.
Now,
the
Court
of
Appeal
has
held,
in
(Albion
Construction
Co
v
Moreau,
[1956]
BR
830),
that
a
written
offer
may
cease
to
be
an
offer
and
become
a
written
contract
upon
oral
acceptance
by
the
representative
of
the
other
party.
—
acceptance
inferred
from
the
circumstances
Even
if
oral
acceptance
were
not
acknowledged
to
be
sufficient,
Quebec
law
bases
acceptance
on
the
circumstances.
If
the
original
written
version
is
in
the
hands
of
the
party
to
whom
support
is
owed,
there
is
a
presumption
that
this
party
has
accepted
its
terms,
unless
there
is
evidence
to
the
contrary,
even
if
the
party
has
not
formally
confirmed
it,
as
long
as
other
circumstances
indicate
that
the
party
has
accepted
it.
In
the
case
law
and
in
legal
writing,
silence
by
itself
cannot
constitute
consent:
(Caron
v
Perkins
Ladd
Electric,
[1925]
39
BR
387;
Grace
v
Perras,
[1921]
62
SCR
166).
Acceptance
cannot
be
presumed
from
silence
and,
in
these
cases,
silence
is
construed
against
the
formation
of
a
contract:
(Commissaires
d’écoles
pour
la
municipalité
scolaire
de
Montréal-Sud
v
Lord,
[1965]
CS
205;
Caouette
v
Patenaude
automobiles,
[1961]
CS
302).
However,
silence
by
itself
is
sufficient
for
acceptance
when
the
person
whose
acceptance
is
being
inferred
was
bound
to
reply
to
an
offer
(Pochon
v
Benette,
[1922]
60
RJQ
537;
Durand
v
Crédit
St-Laurent,
[1966]
CS
282)
or
where
there
are
pre-existing
business
relations
(Favrot
v
Mendelsohn,
[1925]
63
CS
225).
Thus
silence
alone
does
not
mean
acceptance
except
in
special
cases.
Furthermore,
because
of
article
988
of
the
Civil
Code,
which
states
that
consent
may
be
express
or
implied,
courts
and
legal
writers
acknowledge
that
consent
may
be
implied
from
circumstances
which
indicate
that
there
has
been
a
meeting
of
minds
even
in
the
absence
of
a
formal
acceptance.
This
is
so
when
the
person
whose
acceptance
is
sought
to
be
proved
has
acted
in
accordance
with
the
offer
or
has
begun
to
perform
his
obligations
or
to
exercise
rights
arising
out
of
it:
(Dufresne
et
Locke
Ltée
v
Steine,
[1925]
39
BR
510;
Suburban
Enterprises
Inc
v
Prévost,
[1955]
BR
389).
It
is
acknowledged
in
all
the
cases
that
evaluating
and
interpreting
the
circumstances
is
the
function
of
the
judge.
To
conclude,
acceptance
can
be
implied
from
the
following
circumstances,
among
others:
—
the
fact
that
the
former
spouse
has
been
in
possession
of
the
document
which
is
the
subject-matter
of
the
litigation;
—
the
fact
that
the
appellant
drew
cheques
in
accordance
with
the
document
and
his
former
wife
accepted
them;
—
the
fact
that
the
former
wife
attested
in
writing
that
she
had
received
these
cheques
as
support
allowance
and
that
she
even
declared
them
as
income
for
the
taxation
years
concerned;
—
the
fact
that,
when
it
comes
to
determining
the
amount
of
the
support,
a
sum
is
provided
to
cover
income
tax
so
that
the
ex-spouse
can
receive
a
net
amount;
—
the
existence
of
an
affidavit
by
the
appellant,
and
so
on.
Consequently,
as
far
as
civil
law
is
concerned
a
written
document
which
represents
a
proposed
agreement
is
a
written
offer.
Acceptance
of
such
an
offer,
verbally
or
implied
from
the
circumstances,
transforms
the
written
offer
into
a
written
contract
or
agreement.
(b)
The
common
law
In
common
law
legal
theorists
and
case
law
recognize
that
a
simple
contract,
as
contrasted
with
a
contract
under
seal,
may
be
written;
also
that:
—
where
the
law
does
require
that
the
contract
be
in
writing
this
is
to
make
it
capable
of
proof;
—
signature
by
both
parties
is
not
necessary
provided
that
the
party
to
be
charged
has
signed
the
document;
—
a
written
offer
from
one
of
the
parties
binds
him
once
it
is
accepted
orally
by
the
other;
—
a
signature
by
means
of
initials
is
sufficient.
On
these
points,
see
Hals-
bury’s
Laws
of
England
(see
paragraph
5.02
in
fine).
In
brief,
at
common
law
a
document,
the
validity
of
which
is
challenged,
can
constitute
a
valid
memorandum
even
if
it
is
unsigned
by
the
other
party,
provided
it
has
been
accepted
orally
by
that
party
and
has
been
signed
or
initialled
by
the
party
to
be
charged.
Once
that
is
done
the
document
constitutes
a
written
agreement.
To
conclude,
it
can
be
seen
that
both
in
the
civil
law
of
Quebec
and
at
common
law
the
document
in
question
here
is
a
valid
written
agreement.
3.
Is
the
document
a
written
“separation”
agreement?
A
perusal
of
the
document
makes
it
quite
clear
that
it
is
a
written
separation
agreement,
for
it
covers
all
the
effects
of
the
separation,
as
follows:
—
the
dissolution
of
the
matrimonial
regime;
—
the
right
of
occupation
of
the
appellant’s
house
by
the
former
spouse
and
the
children
of
the
marriage;
—
the
amount
of
the
support
allowance,
broken
down
into
its
constituent
sums;
—
custody
of
the
children,
visiting
rights
and
rights
of
access;
—
the
gift
of
an
automobile,
and
so
on.
4.
Other
questions
of
construction
related
to
paragraph
60(b)
of
the
Income
Tax
Act
Let
us
examine
whether,
from
another
point
of
view,
the
document
is
not
in
compliance
with
paragraph
60(b)
because
it
lacks
the
signature
of
the
other
party.
It
is
noteworthy
that
some
sections
of
the
federal
Income
Tax
Act
and
its
regulations
require
signed
memoranda
whereas
others
require
a
written
memorandum
without
making
signatures
a
necessity.
See
Regulations
2800(1
)(a)(iii);
2800(1)(b);
3501
(1)(i)
and
(1)
(all
cited
in
paragraph
5.01
of
this
judgment).*
On
this
subject,
let
us
examine
what
the
rules
for
construction
provide.
There
is
a
basic
rule
of
construction
which
says
that
the
legislature
does
not
speak
to
no
purpose.
Consequently,
if
the
federal
legislature
makes
distinctions
within
a
single
Act
between
the
degree
of
formality
required
for
certain
documents
by
requiring
a
simple
memorandum
in
some
cases
and
a
signed
memorandum
in
others,
effect
must
be
given
to
the
expression
of
the
intent
of
the
legislature
—
for
there
are
without
a
doubt
two
different
kinds
of
provisions
of
the
Income
Tax
Act.
Therefore
effect
must
be
given
to
the
distinction
drawn
by
the
legislature.
In
sum,
the
provision
must
be
literally
construed
having
in
mind
that
the
legislature
wished
to
have
a
memorandum
as
evidence
of
the
fact
of
an
agreement
between
the
parties
and
the
date
on
which
it
was
made,
so
as
to
comply
with
the
requirement
that
an
agreement
must
exist
and
be
in
force
during
the
taxation
year.
It
is
therefore
normal
that
the
courts
would
refuse
to
admit
informal
documents
as
evidence.
What
must
be
determined,
then,
is
whether
a
document
in
fact
amounts
to
an
agreement
accepted
by
both
parties.
To
show
how
true
this
is:
The
Federal
Court,
in
Horkins,
analysing
the
facts
pointing
to
the
existence
of
proposed
agreements
between
the
parties,
states
that
these
proposals
were
not
accepted
—
probably
because
they
were
unsatisfactory
for,
says
the
Court:
“nothing
was
agreed
or
signed”.
It
will
be
seen
that
the
court
places
agreement
and
signature
on
the
same
footing
as
alternatives.
5.
The
equitable
argument
In
addition
to
the
legal
argument,
it
is
inequitable
for
the
Minister
of
Revenue
to
tax
as
income
the
sums
paid
by
the
appellant
to
his
former
spouse
pursuant
to
the
written
separation
agreement,
and
at
the
same
time
refuse
to
recognize
the
payments
so
made
as
allowable
deductions
by
the
appellant
within
the
meaning
of
the
Income
Tax
Act.
This
is
double
taxation.
It
is
obvious
that
the
legislature
certainly
did
not
intend
the
same
amounts
to
be
taxed
twice.
FOR
THE
APPELLANT
B.
Notes
and
authorities
of
the
respondent
In
reply
to
the
appellant’s
pleadings,
the
respondent
submits
respectfully
that
the
appellant
has
not
succeeded
in
demonstrating
that:
(1)
during
the
taxation
year
in
question
he
lived
apart
from
his
wife
pursuant
to
a
judgment,
order
or
written
separation
agreement;
(2)
and
that
the
sums
claimed
as
a
deduction
from
his
income
for
the
said
year
were
paid
pursuant
to
a
judgment,
order
or
written
separation
agreement;
and
consequently
the
said
amounts
are
not
deductible
in
the
calculation
of
his
income
for
the
said
year.
The
respondent
respectfully
submits
that
the
evidence
brought
before
this
honourable
Board
at
the
hearing
does
not
show
the
existence
of
any
separation
agreement.
The
evidence
shows
at
the
very
most
that
during
the
taxation
year
in
question
the
appellant
lived
apart
from
his
spouse,
but
in
no
way
shows
that
the
appellant’s
wife
actually
agreed
to
the
separation,
which
could
have
been
imposed
on
her
by
the
circumstances
without
her
consenting
to
it.
Moreover,
the
evidence
does
not
show
if
the
appellant’s
wife
agreed
to
receive
the
sums
paid
by
the
appellant
in
the
form
of
periodic
support
payment,
thus
giving
up
the
right
to
to
claim
an
additional
sum
from
her
husband
in
performance
of
the
support
obligation
assumed
by
the
husband
pursuant
to
article
176,
or
other
of
the
expenses
incurred
in
her
role
in
running
the
household.*
The
appellant’s
wife
was
not
present
at
the
hearing
and
no
documentary
evidence
such
as
a
contract
or
affidavit
was
filed
to
confirm
the
said
agreement.
The
appellant
did
file
certain
cheques
endorsed
by
his
wife,
but
these
cheques
by
themselves
are
insufficient
to
constitute
proof
of
a
separation
agreement.
They
show
the
existence
of
a
payment
but
not
the
nature
of
the
obligation
at
its
origin.f
In
the
alternative,
if
there
was
in
fact
a
meeting
of
minds
concerning
the
separation
of
the
spouses
and
the
making
of
support
payments,
(and
the
respondent
denies
that
there
was),
then
the
respondent
respectfully
submits
that
the
said
agreement
constituted
not
a
written
separation
agreement
but
at
the
most
an
oral
agreement,
thus
one
that
was
unenforceable
against
the
respondent
pursuant
to
paragraph
60(b)
of
the
Act.$
In
support
of
his
claim,
the
appellant
filed
a
document
entitled
“Proposed
agreement”
which
he
apparently
submitted
to
his
wife
on
March
4,
1973.
But,
as
of
now,
it
is
interesting
to
note
the
expression
used
by
the
appellant
to
describe
the
document
filed,
that
is,
“proposed”
agreement.
Yet
the
appellant
submits
that
the
document
filed
reflects
the
agreement
reached
between
the
parties
because
the
document
constitutes
a
written
offer
which
has
been
accepted
by
the
appellant.
However,
the
evidence
showed
that
the
draft
that
was
submitted
underwent
changes;
the
annotations
on
it
bear
this
out.
It
necessarily
follows
that
the
draft
submitted
does
not
reflect
the
true
agreement
of
the
parties,
if
agreement
there
be.
Moreover,
it
was
adduced
in
evidence
that
the
sum
actually
paid
by
the
appellant
did
not
correspond
to
the
sum
stipulated
on
the
document
filed.
Thus,
in
No
302
v
MNR,
14
Tax
ABC
170;
55
DTC
653,
the
appellant
had
sent
two
letters
to
his
wife’s
lawyer,
in
which
he
proposed
certain
financial
arrangements
concerning
the
payment
of
a
support
allowance.
There
was
nothing
in
the
evidence
to
indicate
if
the
wife
had
accepted
this
proposal.
In
addition,
what
had
actually
been
paid
differed
from
the
amount
mentioned
in
the
letter.
In
dismissing
the
appeal
Mr
Fisher,
Member
of
the
Board,
stated
the
following:
In
the
first
place,
the
two
letters
filed
as
exhibits,
even
if
they
might
be
considered
to
be
a
written
agreement
—
of
which
I
have
very
grave
doubts
—
do
not
contain
provisions
which
would
cover
the
express
payments
of
$900
per
year
per
child,
which
are
the
amounts
claimed
as
deductions
by
the
appellant.
Indeed
the
letters
indicate
that
payments
of
$1,200
per
annum
per
child
were
to
be
made,
and
no
evidence
was
adduced
at
the
hearing
to
indicate
that
this
amount
had
ever
been
reduced
by
agreement
to
$900
per
annum.
Accordingly
I
have
reached
the
conclusion
that
the
letters
in
question
do
not
represent
any
agreement
which
was
finally
concluded
between
the
appellant
and
his
former
spouse,
although
they
may
have
provided
a
basis
for
agreement
.
.
.
I
can
only
draw
the
inference
that
some
other
agreement,
probably
verbal,
was
arrived
at
between
the
appellant
and
his
former
spouse
under
which
the
payments
of
$1,800
per
annum
were
to
be
made.
Similarly,
in
the
case
at
bar,
if
there
is
an
agreement
it
can
only
be
an
oral
one
since
the
document
filed
does
not
reflect
the
terms
of
the
supposed
agreement,
and
in
consequence,
is
unenforceable
against
the
respondent
for
the
purposes
of
paragraph
60(b).
Alternatively,
if
this
honourable
Board
should
conclude
that
the
document
filed
reflects
the
agreement
of
the
parties
(and
the
respondent
denies
that
it
does),
then
the
respondent
respectfully
submits
that
the
document
filed
does
not
constitute
a
written
separation
agreement
within
the
meaning
of
paragraph
60(b)
of
the
Act,
since
the
wife’s
signature
does
not
appear
on
the
said
document.
The
appellant
takes
the
view
that
the
word
“written”
in
the
expression
“written
separation
agreement”
does
not
necessarily
mean
a
document
signed
by
both
parties
but
must
designate
anything
which
is
printed,
painted,
engraved,
lithographed
or
otherwise
traced,
or
copied.
In
support
of
this
contention
the
appellant
refers
us
to
article
12
of
the
Schedule
to
the
Civil
Code*,
which
states:
12.
Les
mots
“écriture”,
“écrits”
et
autres,
ayant
la
même
signification,
comprennent
ce
qui
est
imprimé,
peint,
gravé,
lithographié,
ou
autrement
tracé
ou
copié.
12.
The
words
“writing”,
“manuscript”
and
terms
of
like
import,
included
words
printed,
painted,
engraved,
lithographed
or
otherwise
traced
or
copied.
The
respondent
respectively
submits
that
the
word
“written”
in
the
expression
“written
separation
agreement”
must
necessarily
refer
to
a
document
signed
by
both
parties.
First,
it
seems
to
us
that
the
meaning
of
the
word
“written”
in
paragraph
60(b)
of
the
Act,
found
in
the
phrase
“decree,
order
or
judgment
of
a
compe
tent
tribunal
or
pursuant
to
a
written
agreement”
cannot
be
restricted
to
the
meaningt
given
to
the
expression
“manuscript”^:
in
article
12
of
the
Schedule
to
the
Civil
Code
in
the
phrase
listing
“‘writing’,
‘manuscript’
and
terms
of
like
import”.
Applying
the
ejusdem
generis
rule,
it
seems
that
the
word
“manuscript”
defined
in
the
Civil
Code
refers
to
the
outward
form
of
a
document,
whereas
the
word
“written”
in
paragraph
60(b)
belongs
in
a
context
of
contracts
or
judgments
substituted
therefor
—
a
context
concerned
with
their
probative
force
and
legal
effect.
The
equation
proposed
by
the
appellant
cannot
therefore
be
accepted.
Secondly,
the
word
“agreement”
in
the
expression
“written
separation
agreement”
seems
to
refer
necessarily
to
the
consent
expressed
by
the
two
contracting
parties,
whereas
the
word
“written”
refers
instead
to
how
that
consent
is
expressed.
How
can
it
be
claimed
that
a
document
reflects
the
consent
of
the
contracting
parties
unless
that
document
is
signed
by
all
the
contracting
parties?
How
can
a
consent
be
given
in
writing
without
the
consenting
party’s
putting
his
signature
to
it?
Trying
to
form
hypotheses
only
distorts
the
ordinary
meanings
of
words.
Thirdly,
contrary
to
the
appellant’s
contention,
there
is
abundant
and
unanimous
case
law
to
the
effect
that
no
payment
claimed
to
be
made
as
support
can
be
deducted
in
a
taxpayer’s
calculation
of
income
unless
it
has
been
made
pursuant
to
a
written
separation
agreement
signed
by
both
spouses
or
former
spouses
and
existing
at
the
time
of
the
payment.
Thus,
in
Reid
v
MNR,
[1972]
CTC
2661;
72
DTC
1540,
the
appellant
has
adduced
in
evidence
a
document
entitled
“Suggested
Child
Support”,
which
was
neither
dated
nor
signed.
However,
on
the
back,
the
appellant
had
written
“Accepted”.
In
dismissing
the
appeal,
Mr
Cardin,
Member
of
the
Tax
Review
Board,
stated:
The
words
“written
agreement”
in
a
context
which
includes
a
decree,
order
or
judgment
of
a
competent
tribunal
must,
of
necessity,
mean
a
formal
agreement
between
the
parties
concerned.
Similarly
to
Reid,
in
the
case
at
bar
the
appellant
filed
a
proposed
agreement
which
he
himself
had
accepted
and
signed.
However,
like
the
document
filed
in
Reid,
the
document
filed
in
the
case
at
bar
cannot
constitute
a
formal
agreement
within
the
meaning
of
the
Act,
not
being
signed
by
all
parties.
In
Fryer
v
MNR,
31
Tax
ABC
143;
63
DTC
176,
the
appellant
had
signed
a
memorandum
which
he
had
addressed
to
his
wife,
in
which
he
informed
her
that
he
agreed
to
make
certain
payments
to
her.
Mr
Fordham,
member
of
the
board,
having
noted
that
there
was
nothing
in
the
evidence
to
show
that
the
appellant’s
wife
had
accepted
the
proposal,
concluded
by
dismissing
the
appeal.
The
similarity
between
the
facts
in
the
two
cases
is
clear,
without
its
being
necessary
to
comment
in
greater
detail.
In
Beatty
v
MNR,
13
Tax
ABC
285;
55
DTC
444,
the
appellant
had
adduced
in
evidence
an
offer
signed
by
his
lawyer,
which
was
not
signed
by
his
wife.
The
appeal
was
dismissed
and
the
deduction
disallowed.
In
Pezet
v
MNR,
[1979]
CTC
2315;
74
DTC
1246,
the
appellant
had
adduced
in
evidence
an
unsigned
separation
agreement
dated
February
1971,
and
also
a
signed
agreement
dated
September
1971,
which
was
identical
to
the
unsigned
agreement
of
February
1971.
As
well,
in
the
facts,
the
appellant
had
complied
with
the
terms
of
the
said
agreement.
The
appeal
was
dismissed
for
the
following
reasons:
There
is
no
discretion
in
this
Board
to
apply
the
benefits
of
this
deducting
section
to
an
appellant
retroactively,
notwithstanding
the
fact
that
he
has
complied
completely
with
what
was
obviously
verbally
agreed
to
but
was
not
reduced
to
writing
until
all
terms
of
the
agreement
were
completed.
(that
is,
in
September
1971,
the
date
the
parties
signed
the
said
agreement).
In
Zarbatany
v
MNR,
[1974]
CTC
2195;
74
DTC
1134,
the
appellant
had
adduced
in
evidence
a
unilateral
agreement
which
he
had
signed
concerning
the
payment
of
support.
It
had
not
been
signed
by
his
wife.
The
appeal
was
dismissed
and
the
deduction
disallowed.
In
Volk
v
MNR,
[1977]
CTC
2012;
74
DTC
12,
the
appellant
had
testified
that
the
written
separation
agreement
dated
from
July
19,
1972,
when
he
had
signed
it,
and
that
from
that
date
he
had
paid
the
sum
of
$105
per
week
to
his
wife
as
a
support
allowance.
He
alleged
that
at
that
date,
July
19,
1972,
the
parties
had
agreed
on
all
the
conditions
mentioned
in
the
written
agreement.
The
court
decided:
According
to
the
evidence
adduced,
it
is
self-evident
that
the
written
separation
agreement
was
not
signed
by
the
appellant’s
wife
until
October
18,
1972
and,
consequently,
was
completed
on
that
date.
For
this
reason,
the
appellant
is
not
entitled
to
deduct
any
payments
made
prior
to
October
18,
1972.
In
Gagné
v
MNR,
[1976]
CTC
2163;
76
DTC
1125,
the
appellant
had
filed
as
evidence
a
letter
in
which
he
declared
his
intention
not
to
live
with
his
wife
any
longer
and
the
fact
that
he
agreed
to
make
certain
support
payments
to
her.
The
letter
had
never
been
accepted
or
signed
by
the
wife.
The
appeal
was
dismissed
for
the
following
reasons:
The
husband’s
letter
dated
May
8
reflects
a
unilateral
decision
by
the
appellant
to
leave
the
family
abode
and
to
continue
paying
certain
household
expenses.
Although
I
am,
of
course,
in
agreement
with
Pothier’s
definition,
which,
briefly,
states
that
an
agreement
is
created
by
the
consent
of
two
parties,
I
fail
to
find
any
proof
of
consent
by
the
spouse
in
the
evidence
brought
forward
in
this
case.
Counsel
for
the
appellant,
on
the
basis
of
Migneault’s
definition
of
an
agreement,
maintained
that
the
letter
of
May
8,
was
a
pollicitation
made
by
the
appellant,
that
the
endorsement
of
the
cheques
by
the
wife
constituted
acceptance
of
the
offer
made
by
her
husband,
and
that,
together,
these
constitute
a
valid
written
agreement
within
the
terms
of
paragraph
11
(1
)(l).
It
is
possible
that
in
certain
circumstances
acceptance
of
a
cheque
may
be
considered
acceptance
of
an
offer
but,
in
my
view,
if
true
acceptance
of
an
offer
by
the
recipient
is
to
exist,
it
is
essential
that
the
payment
be
made
pursuant
to
an
agreement
in
which
some
degree
of
freedom
of
action
and
choice
for
both
parties
exists.
The
letter
of
May
8,
contains
only
the
appellant’s
decision.
There
is
no
evidence
to
indicate
that
the
letter
was
written
after
the
agreement
with
his
wife,
or
that
the
latter
agreed
to
the
conditions
in
the
letter.
It
appears
clear
to
me
that
the
wife
was
faced
with
a
decision
made
by
the
appellant
alone:
one
in
whcih
she
had
no
more
choice
or
control
over
the
arrangements
made
by
him
for
the
payment
of
expenses
to
the
family
(expenses
which
the
appellant
was,
moreover,
already
legally
bound
to
pay)
than
she
had
over
her
husband’s
departure
from
the
family
home.
The
letter
gave
the
wife
no
freedom
of
action
and
no
choice:
whether
she
agreed
or
not
was
immaterial.
..
.
Under
the
circumstances,
the
acceptance
by
the
wife
of
the
payments
which
the
appellant
was
already
legally
bound
to
make
cannot
be
considered
acceptance
by
her
of
a
pollicitation
made
by
the
appellant,
and
I
do
not
see
it
as
a
written
agreement
within
the
terms
of
paragraphs
11(1)0)
or
11
(1
)(la).
The
Jacoby
case
is
very
similar
to
the
Gagné
case
in
that
the
evidence
adduced
at
the
hearing
does
not
indicate
at
all
if
the
appellant’s
wife
in
fact
accepted
the
terms
and
conditions
provided
in
the
proposed
agreement.
For
the
same
reasons
as
the
appeal
in
Gagné,
the
appeal
in
the
case
at
bar
should
therefore
be
dismissed.
In
Vaillancourt
v
MNR,
[1978]
CTC
3157;
78
DTC
1829,
the
appellant
had
adduced
in
evidence
a
proposed
separation
agreement,
which
had
been
prepared
after
a
meeting
with
his
wife.
However,
the
proposed
agreement
had
not
been
signed.
The
appellant
had
complied
with
the
terms
of
the
agreement,
yet
the
appeal
was
dismissed
for
the
following
reasons:
It
is
therefore
quite
evident
that
at
this
time
no
written
agreement
had
been
made.
The
appellant
argued,
basing
himself
on
Art.
1472
of
the
Civil
Code
of
the
province
of
Quebec,
that
only
the
consent
of
the
two
parties
is
required
in
order
to
constitute
an
agreement
or
a
contract.
Unfortunately,
the
Board
cannot
take
this
section
of
the
Civil
Code
into
account
because
s
60(b)
of
the
Income
Tax
Act
must
be
interpreted
restrictively,
.
..
..
.
according
to
the
numerous
precedents
cited
by
counsel
for
the
respondent,
the
meeting
and
the
interview
on
December
13,
1973
at
the
office
of
Mrs
Vaillancourt’s
lawyer,
the
sending
of
a
letter
and
draft
agreement
by
the
wife’s
lawyer
to
the
appellant,
and
the
twenty
cheques
all
signed
by
the
appellant,
and
endorsed
by
Mrs
Vaillancourt
cannot
in
any
way
constitute
a
valid
written
agreement
within
the
meaning
of
section
60(b)
of
the
Income
Tax
Act.
In
Hardy
v
MNR,
[1978]
CTC
3120;
78
DTC
1802,
the
wife’s
lawyer
had
drawn
up
a
draft
agreement
which
the
appellant
had
refused
to
sign.
He
nevertheless
paid
the
amounts
stipulated
in
the
document.
Mr
Tremblay,
Member
of
the
Tax
Review
Board,
dismissed
the
appeal
for
the
following
reasons:
The
Board
is
of
the
opinion
that
a
written
agreement
is
not
binding
unless
it
is
signed
by
the
two
parties.
Otherwise,
the
written
contract
only
serves
as
a
record.
If
persons
have
participated
in
the
written
contract,
they
may
serve
as
witnesses
to
give
evidence
of
a
verbal
contract
if
there
was
a
verbal
agreement
but
that
is
all.
Moreover,
a
verbal
contract
is
not
a
written
contract
and
the
Act
specifies
a
written
contract.
The
Income
Tax
Act,
being
a
public
policy
statute,
should
be
strictly
interpreted,
that
is,
according
to
the
letter
of
the
law.
It
is
particularly
interesting
to
note
that
in
that
case
the
lawyer
for
the
appellant
argued,
like
counsel
for
the
appellant
in
the
case
at
bar,
that
the
Act
referred
to
a
written
agreement
and
that
it
contained
no
requirement
that
such
written
agreement
be
signed.
Nevertheless
Mr
Tremblay,
Member,
dismissed
the
appeal.
In
his
judgment
in
MNR
v
Guèvremont,
[1978]
CTC
2949;
78
DTC
1678,
Mr
St-Onge,
Member
of
the
Board,
stated:
Because
according
to
the
case
law
in
taxation
matters
it
appears
that
a
written
agreement,
either
for
the
spouses’
separation
or
to
obtain
alimony,
must
be
drafted
on
a
legal
document
stating
the
terms
of
the
agreement
between
the
parties
who
actually
signed
the
document,
and
that
the
cheques
sent
by
the
ex-husband
cannot
constitute
a
written
agreement.
In
Ardley
v
MNR,
[1980]
CTC
2126;
80
DTC
1106,
the
appellant
had
adduced
in
evidence
a
document
signed
by
himself
providing
that
he
would
pay
a
certain
sum
to
his
wife
as
support.
The
document
had
not
been
signed
by
the
wife.
An
affidavit
by
the
wife
stating
that
an
oral
contract
of
separation
existed
had
also
been
filed.
In
dismissing
the
appeal
Mr
Cardin,
Member
of
the
Board,
had
the
following
to
say:
A
review
of
the
evidence
inevitably
leads
to
the
conclusion
that
the
appellant
who
was
living
separate
from
his
wife
had
arrived
at
some
agreement
with
his
estranged
wife
to
pay
her
a
monthly
allowance
of
$500.
The
handwritten
commitment
to
pay
the
monthly
amount
signed
by
the
appellant,
the
acknowledgment
by
the
appellant’s
wife
that
they
had
mutually
agreed
to
the
said
arrangement
and
that
she
had
in
fact
received
the
payments,
leaves
no
doubt
as
to
the
existence
of
an
agreement
between
the
appellant
and
his
wife.
The
Courts
and
the
Board
have
consistently
held
that
the
written
separation
agreement
pursuant
to
which
alimony
or
maintenance
payments
are
made
to
an
estranged
spouse,
must
be
signed
by
both
parties
in
order
to
fall
within
the
provisions
of
section
60(b).
In
the
case
at
bar,
the
evidence
does
not
show
at
all
the
existence
of
even
an
oral
agreement
between
the
appellant
and
his
wife.
Nothing
in
the
evidence
shows
that
the
wife
actually
accepted
the
offer
made
by
the
husband
or
made
an
agreement
with
her
husband
concerning
their
separation
and
the
payment
of
a
support
allowance.
This
is
all
the
more
reason
then
why
the
appeal
should
be
dismissed.
In
Milburn
v
MNR,
[1979]
CTC
2007;
79
DTC
24,
the
appellant
had
filed
a
written
separation
agreement
which
had
not
been
signed
between
the
parties.
The
appellant
had
complied
with
the
provisions
of
the
agreement,
however.
The
appeal
was
dismissed
for
the
following
reason:
The
Board
is
of
the
opinion
that
a
verbal
agreement
becomes
a
written
agreement
only
when
it
is
signed
by
the
parties.
In
Kapel
v
MNR,
[1979]
CTC
2187;
79
DTC
199,
the
appellant
filed
a
written
agreement
signed
by
himself
but
not
by
his
wife.
The
appeal
was
dismissed
for
the
following
reasons:
In
my
view
whatever
else
may
be
required
to
constitute
a
written
separation
agreement
for
purposes
of
paragraph
60(b),
the
signature
of
both
parties
to
an
agreement
is
an
irreducible
minimum.
This
conclusion,
in
my
view,
flows
from
the
decision
of
Collier,
J,
in
William
Edward
Horkins
v
Her
Majesty
The
Queen,
76
DTC
6043.
The
Appellant
has,
by
reason
of
the
absence
of
Mrs
Kapel’s
signature,
been
obliged
to
rely
on
her
conduct
to
establish
acceptance
of
Exhibit
A-1
which
can
only
be
read,
standing
alone,
as
an
offer
in
writing.
Finally,
contrary
to
the
appellant’s
contention,
the
respondent
respectfully
submits
that
the
above-cited
case
law
is
sound.
In
the
civil
law
and
at
common
law
alike,
simple
consent
is
binding
without
in
theory
any
formalities
being
necessary
to
the
validity
per
se
of
a
promise.
Thus,
in
principle,
a
contract
is
concluded
as
soon
as
there
is
a
meeting
of
minds
on
the
essential
elements
of
the
contract.
However,
under
paragraph
60(b)
of
the
Act,
consent
of
the
parties
to
the
separation
and
the
support
payments
is
not
enough,
because
the
legislature
stipulates
expressly
that
the
said
consent
must
be
expressed
and
evidenced
in
writing.
And,
pursuant
to
article
1233
of
the
Civil
Code,
a
simple
private
contract
in
writing
has
probative
force
only
when
it
is
signed
by
all
contract
ing
parties.*
Along
the
same
lines,
we
have
no
alternative
but
to
conclude
that
the
written
separation
agreement
referred
to
in
paragraph
60(b)
must
necessarily
be
signed
by
both
spouses.
The
case
law
submitted
by
the
appellant
to
support
his
claims
is
to
the
effect
that
a
contract
may
be
proved
through
oral
evidence
when
there
is
some
evidence
in
writing
to
begin
with.
However,
nothing
in
this
case
law
or
in
the
Civil
Code
authorizes
the
use
of
such
evidence
when
the
substantive
legislation
refers
specifically
to
a
written
agreement.
The
wording
of
paragraph
60(b)
is
clear;
it
refers
to
a
written
agreement
and
not
merely
to
a
written
offer
or
other
written
basis
for
proof.
Secondly,
the
appellant
takes
support
from
the
common
law
and
more
specifically
refers
to
“contract
in
writing”.
It
is
true
that
English
authors
state
that
when
a
statutory
disposition
“requires
a
note
or
memorandum
to
be
in
writing,
unless
otherwise
provided
for,
it
is
not
necessary
that
the
memorandum
be
signed
by
both
parties,
but
only
by
the
party
to
be
charged”.f
Thus,
if
A
makes
an
agreement
with
B
and
signs
a
memorandum
to
that
effect,
B
may
require
A
to
perform
the
obligation
assumed,
notwithstanding
the
fact
that
he
himself
has
not
signed
the
document.
However,
the
separation
agreement
referred
to
in
the
Income
Tax
Act
necessarily
envisages
a
synallagmatic
contract
with
obligations
assumed
on
both
sides,
more
specifically
the
following:
(a)
the
spouses
intend
to
live
apart,J
that
the
husband
refrain
from
requiring
that
his
wife
live
with
him
and
that
the
wife
refrain
from
requiring
that
her
husband
receive
her;
(b)
that
the
spouses
intend
to
fix
the
amount
of
the
support
obligation
assumed
by
the
husband
with
respect
to
his
wife
by
reason
of
his
marriage;§
thus
the
husband
agrees
to
pay
periodically
the
sum
stipulated
as
the
support
obligation
assumed
by
him
by
reason
of
his
marriage,
giving
up
his
right
directly
to
look
after
payment
for
necessaries
for
his
wife
and
children;
for
her
part,
the
wife
accepts
a
priori
the
sum
stipulated
as
representing
the
amount
required
for
her
maintenance
and
undertakes
not
to
bring
legal
action
against
her
husband
to
compel
him
to
perform
his
support
obligation
in
the
event
that
the
needs
for
the
period
are
higher
than
the
amount
provided
in
the
contract.
The
common
law
says
that
when
a
signatory
signs,
intending
to
be
bound
only
if
and
when
the
other
party
is
himself
bound,
then
no
party
may
enforce
performance
of
the
contract
unless
it
is
signed
by
both
parties.**
Now,
in
the
context
of
separation
agreements
where
obligations
are
assumed
on
both
sides,
we
must
conclude
in
the
absence
of
contrary
evidence
that
each
party
intended
to
be
bound
only
if
the
other
party
was,
and,
in
consequence,
that
the
signature
of
both
must
appear
on
the
contract.
Moreover,
in
the
context
of
paragraphs
56(b)
and
60(b),
that
is
the
deduction
by
the
husband
of
the
amounts
paid
under
the
separation
agreement,
and
the
corresponding
inclusion
in
the
income
of
the
wife
of
the
sums
so
received,
it
seems
clear
that
the
federal
legislature
envisioned
a
separation
agreement
binding
on
both
parties
and
enforceable
against
both.
To
adopt
the
reasoning
of
counsel
for
the
appellant
would
lead
to
authorizing
the
husband
to
deduct
the
sums
paid
and
authorizing
the
wife
not
to
include
the
sums
received
in
her
income
because
she
could
argue
that
the
separation
agreement
was
not
enforceable
against
her
since
she
had
not
signed
it,
and
thus
that
she
was
not
living
apart
from
her
husband
pursuant
to
a
separation
agreement
and
that
the
sums
received
were,
as
far
as
she
was
concerned,
paid
only
in
partial
performance
of
the
support
obligation
assumed
by
her
husband
under
the
marriage
and
not
pursuant
to
the
written
agreement.
But,
in
the
internal
logical
framework
of
the
Income
Tax
Act,
paragraphs
56(b)
and
60(b)
are
closely
linked
and
deduction
by
one
spouse
necessarily
involves
inclusion
by
the
other
one,
and
vice
versa.
The
very
large
number
of
decisions
rendered
under
section
174
on
this
subject
serves
to
convince
us
of
the
close
relationship
of
these
two
sections.
Finally,
counsel
for
the
appellant
claims
that
because
of
the
specific
use
by
the
legislature
of
the
expression
“signed”
in
certain
regulations,
it
must
be
concluded
that
the
expression
“written”
does
not
necessarily
mean
“signed”.
But
it
is
interesting
to
note
that
the
expression
“signed”
in
the
said
regulations
applies
not
to
contracts
or
other
legal
documents,
but
to
receipts
for
income
tax
purpose
and
to
elections
for
which
the
Act
does
not
require
a
memorandum.
These
regulations
are
principally
intended
to
identify
the
person
making
the
election
or
issuing
the
receipt
and
not
to
preconstitute
evidence
of
a
contract.
In
the
context
of
paragraphs
56(b)
and
60(b),
there
was
no
need
for
the
legislature
to
specify
that
the
written
separation
agreement
must
be
signed
because
the
expression
“written”
in
this
context
necessarily
designates
a
contract
signed
by
both
parties.
Conclusion
A
payment
made
by
a
husband
to
his
wife
as
support
and
for
her
maintenance
and
that
of
the
children
constitutes
a
personal
expense
of
the
husband.
The
fact
that
the
spouses
may
choose
to
live
apart
does
not
effect
any
change
in
the
personal
nature
of
the
payment.
However,
the
Income
Tax
Act,
in
paragraph
60(b),
provides
that
if
two
spouses
live
apart,
pursuant
to
a
written
separation
agreement,
and
the
husband
assumes
the
obligation
under
the
contract
of
paying
support
moneys
to
his
wife,
then
and
only
then
will
the
amount
so
paid
be
deducted
in
the
husband’s
calculation
of
income
and
included
in
the
wife’s
calculation.
But,
like
any
exemption
provision,
paragraph
60(b)
must
be
interpreted
restrictively
(see
Lumbers
v
MNR,
[1944]
CTC
67;
2
DTC
631),
and
in
consequence,
in
this
case,
we
must
conclude
that
the
sums
paid
by
the
appellant
remain
non-deductible
personal
expenses
since
he
has
not
been
able
to
show
that
he
met
all
the
requirements
of
paragraph
60(b),
which
constitutes
an
exception
to
the
general
principle.
C.
Appellant’s
reply
(1)
First,
the
respondent
submits
that
the
evidence
adduced
before
the
Review
Board
does
not
in
any
way
point
to
the
existence
of
a
separation
agreement,
or
the
consent
of
the
wife
to
the
separation;
the
respondent
also
submits
that
the
wife
was
not
present
at
the
hearing
and
that
no
document
was
filed
in
confirmation
of
the
said
agreement.
On
this
matter,
the
appellant
respectfully
submits
that
the
document
which
is
the
subject-matter
of
the
action
constitutes
a
separation
agreement,
but
that,
moreover,
the
respondent
never
until
today
challenged
the
wife’s
acceptance
of
the
separation
—
in
fact
he
cannot
do
so
—
but
challenged
only
the
legal
validity
of
the
document
concerned.
Moreover,
at
the
hearing
the
appellant
wanted
to
file
a
document
from
his
former
wife
confirming
that
she
acknowledged
having
received
for
the
taxation
year
concerned
the
support
payments
in
accordance
with
the
agreement
that
had
been
concluded,
but
counsel
for
the
respondent
objected
to
its
being
filed.
The
appellant
recognizes
however
that
the
respondent
is
right
in
affirming
that
filing
a
series
of
cheques
does
not
in
itself
constitute
evidence
of
a
separation
agreement,
but
this
is
not
the
subject-matter
of
the
litigation.
(2)
Secondly,
the
respondent
admits
that
if
there
is
a
meeting
of
minds,
it
constitutes
not
a
written
separation
agreement
but
at
the
most
an
oral
agreement.
(a)
First
of
all,
the
respondent
contends
that
the
presence
of
annotation
on
the
draft
agreement
shows
that
this
document
does
not
constitute
the
true
agreement
of
the
parties.
On
this
point,
the
appellant
respectfully
submits
that
a
memorandum
may
be
validly
made
even
if
its
contents
are
both
typewritten
and
handwritten.
It
is
common
for
draft
agreements
to
be
submitted
to
the
other
party
and
for
changes
on
which
the
parties
agree
during
the
negotiations
to
appear
in
handwriting
on
the
document
which
is
ultimately
accepted.
(See
for
example
the
practice
with
leases,
promises
to
sell
houses,
and
so
on.
(b)
Secondly,
the
respondent
contends
that
there
is
a
difference
between
the
amount
provided
in
the
document
($825)
and
the
amount
actually
paid
($835),
and
cites
in
support
the
case
of
No
302
v
MNR.
For
one
thing,
it
can
be
seen
that
the
$10
difference
is
minimal
(a
little
over
1%),
while
in
the
above-cited
case
the
amounts
put
forward
are
$900,
$1,200
and
$1,800.
Moreover,
in
that
case
there
was
a
simple
exchange
of
letters.
Therefore
to
compare
the
No
302
case
and
our
own
is
inappropriate.
The
$10
difference
in
the
case
at
bar
can
be
explained
as
a
simple
mechanical
error
made
at
the
time
the
agreement
was
concluded.
Furthermore,
there
is
nothing
to
prevent
parties
from
modifying
amounts
as
they
go
along
since
the
Act
does
not
deal
with
the
amount
per
se
but
with
the
legal
basis
for
the
payment.
The
appellant
therefore
denies
that
merely
a
verbal
agreement
is
involved.
(3)
Thirdly,
the
respondent
claims
that
the
agreement
is
not
a
written
separation
agreement
within
the
meaning
of
section
60(b)
of
the
Act
because
the
wife’s
signature
does
not
appear
on
the
document.
In
support
of
this
contention
the
respondent
cites
the
following
arguments:
(a)
that
the
word
“written”
should
not
be
given
the
meaning
it
bears
in
article
12
of
the
Schedule
to
the
Civil
Code.
On
this
point,
at
the
hearing
the
appellant
at
no
time
referred
to
the
Civil
Code
definition;
rather,
the
reference
was
to
the
federal
Interpretation
Act,
RSC
1970,
c
I-23,
which
defines
“written”
as
follows
(section
28):
“writing”,
or
any
term
of
like
import,
includes
words
printed,
typewritten,
painted,
engraved,
lithographed,
photographed,
or
represented
or
reproduced
by
any
mode
of
representing
or
reproducing
words
in
visible
form;
The
federal
Interpretation
Act
applies
to
federal
legislation,
including
the
Income
Tax
Act,
and
is
used
to
establish
the
meaning
of
expressions
in
legislation
which
raise
an
ambiguity
—
which
is
the
case
here.
The
appellant
and
the
respondent
not
agreeing
on
the
meaning
of
the
word
“written”,
it
is
appropriate
to
construe
it,
and
the
primary
source
for
construction
is
the
Interpretation
Act.
Section
28
makes
no
mention
of
signature
as
a
requirement
for
a
writing;
therefore
this
definition
supports
the
appellant’s
position.
Finally,
as
far
as
the
argument
based
on
the
Civil
Code
definition
is
concerned
—
and
this
is
a
definition
which
the
appellant
has
never
used
—
the
fact
remains
that
the
fine
distinction
put
forward
by
the
respondent,
between
the
Civil
Code
definition,
which
the
respondent
claims
refers
to
the
“outward
form
of
a
document”,
and
the
way
in
which
consent
is
expressed,
is
a
distinction
unsupportable
in
law.
Moreover,
if
the
analysis
is
extended
further,
the
two
expressions
used
by
the
respondent
become
as
one,
contrary
to
what
the
respondent
contends.
(b)
The
respondent
claims
to
base
his
contention
on
“abundant”
case
law
(p
6),
contrary
to
what
the
appellant
would
submit.
First,
the
appellant
would
point
out
that
at
the
hearing
he
merely
stated
in
Summarizing
the
case
law
that
none
of
the
cases
he
had
referred
to
dealt
with
a
document
identical
to
the
one
which
is
the
subject-matter
of
the
case
at
bar
and
that
the
circumstances
were
quite
different;
the
appellant
concluded:
.
.
.
that
is
why
the
courts
do
not
recognize
informal
documents
which
do
not
establish
clearly
agreement
by
the
parties
or
the
date
of
the
agreement
.
.
.
the
document
must
be
capable
of
being
used
as
a
basis
for
an
action
brought
by
the
wife
against
the
husband
for
non-payment
.
.
.
Let
us
once
more
examine
the
cases
on
which
the
respondent,
in
his
notes,
is
basing
his
submission.
John
Reid
v
MNR:
In
the
facts,
and
this
is
very
important,
the
proposal
was
neither
signed
nor
dated;
yet
we
have
seen
that
judges
try
to
prevent
or
combat
tax
fraud
or
evasion
by
requiring
signatures
and
dates,
because
of
possible
retroactive
effects.
But
the
document
submitted
by
the
appellant
was
dated
and
signed
by
the
appellant.
In
addition,
the
respondent
cites
an
extract
from
that
case
in
which
the
court
states
that
the
words
“written
agreement
.
.
.
must,
of
necessity,
mean
a
formal
agreement
between
the
parties
concerned”.
But
the
judge
does
not
define
what
a
“formal
agreement”
as
such
is;
the
most
one
may
assume
is
that
a
document
which
is
neither
dated
nor
signed
constitutes
an
informal
agreement.
The
appellant
would
subscribe
to
this,
but
it
does
not
apply
to
the
document
adduced
in
evidence.
Fryer
v
MNR:
The
appellant
would
point
out
that
this
case
dealt
with
notes
on
a
piece
of
paper
which
was
neither
signed
nor
dated;
it
is
therefore
not
pertinent.
Betty
v
MNR:
In
this
case
there
was
a
series
of
cheques
and
an
offer
signed
merely
by
the
lawyer;
therefore
this
case
is
not
pertinent.
Pezet
v
MNR:
Here
there
was
an
attempt
to
claim
that
a
properly-drawn-
up
agreement
to
which
it
was
sought
to
give
retroactive
effect
because
it
had
been
signed
afterwards
was
valid
within
the
meaning
of
the
Income
Tax
Act.
But
we
have
seen
that
for
paragraph
60(b)
to
apply
the
agreement
must
have
been
concluded
for
the
taxation
year
and
not
afterwards,
with
retroactive
effect.
Thus
the
case
cited
is
not
pertinent.
Zarbatany
v
MNR:
This
case
is
not
pertinent
because
there
was
a
unilateral
offer
to
which
the
wife
had
refused
to
adhere,
which
of
course
cannot
constitute
an
“agreement”.
Volk
v
MNP:
This
case
is
not
pertinent
because
the
wife
accepted
the
offer
only
much
later,
which
prevented
the
husband
from
claiming
a
deduction
for
payments
made
previous
to
the
acceptance
by
the
wife.
(Her
acceptance
took
the
form
of
a
signature
in
this
case.)
J
V
P
Gagné
v
MNP:
In
this
case,
the
wife
had
not
accepted
or
signed
a
letter
of
intent
which
came
from
the
husband;
thus
it
was
a
unilateral
decision.
From
reading
the
observations
of
the
Court,
it
can
be
seen
that
the
Court
states
that
it
is
possible
that,
in
certain
circumstances,
the
endorsement
of
cheques
may
constitute
acceptance
but
that
it
is
essential,
in
order
for
there
to
be
real
acceptance
of
the
offer,
that:
“the
payment
be
made
pursuant
to
an
agreement
in
which
some
degree
of
freedom
of
action
and
choice
for
both
parties
exists.
.
.
.
It
appears
clear
to
me
that
the
wife
was
faced
with
a
decision
made
by
the
appellant
alone.
.
.
.
The
letter
gave
the
wife
no
freedom
of
action
and
no
choice.
.
.
.
I
do
not
see
it
as
a
written
agreement.
The
respondent
states
that
this
case
resembles
our
own.
This
statement
is
incorrect
for
the
following
reasons:
1.
The
presence
of
handwritten
annotations
on
the
document
reveals
that
the
decision
was
not
unilateral
but,
on
the
contrary,
that
the
terms
of
the
agreement
were
negotiated
freely.
2.
The
respondent
refused
to
let
the
appellant
file
a
letter
at
the
hearing
from
the
appellant’s
wife
indicating
that
she
had
received
payments
as
a
support
allowance
(in
accordance
with
the
agreement).
3.
There
was
never
any
question
at
the
discussions
with
counsel
for
the
respondent
of
its
being
necessary
to
have
the
appellant’s
wife
testify
to
establish
acceptance,
since
the
lawyer
had
not
gone
further
than
claiming
that
the
document
was
invalid
within
the
meaning
of
the
Income
Tax
Act.
In
any
case,
and
this
is
important,
the
appellant
has
always
contended
and
has
proved
indirectly
that
his
wife
accepted
the
terms
of
the
agreement
and
the
respondent
did
not
prove
the
contrary
at
all,
having
limited
himself
to
raising
questions
at
this
juncture
as
to
acceptance.
Vaillancourt
v
MNR:
This
case
is
irrelevant
here
because
the
proposed
agreement
was
not
accepted
by
the
wife,
even
though
she
endorsed
the
cheques;
there
was
therefore
no
written
agreement.
Hardy
v
MNR:
This
case
is
not
pertinent
because
as
it
happens
there
was
a
draft
agreement
drawn
up
by
the
wife
but
rejected
by
the
husband.
Much
later
the
husband
wished
to
have
it
considered
a
written
agreement
for
tax
reasons.
This
case
has
no
point
of
similarity
with
ours
because
in
ours
there
was
acceptance
of
the
proposal
by
the
other
party
right
after
several
hours
of
negotiations,
—
acceptance
of
which
counsel
for
the
respondent
was
never
able
to
gainsay.
MNR
v
Guèvremont:
This
case
is
not
pertinent
because
the
husband
was
attempting
to
establish
that
the
cashing
of
cheques
constituted
a
written
agreement.
Ardley
v
MNR:
Counsel
for
the
respondent
relies
on
Ardley
to
claim
that
the
appellant,
by
not
having
had
his
wife
testify,
has
not
proved
that
his
wife
actually
accepted
the
offer.
But,
to
repeat,
the
respondent
refused
to
allow
a
document
to
be
filed
and,
moreover,
at
the
discussions
before
the
hearing,
never
denied
acceptance
by
the
wife,
saying
only
that
the
document
had
no
legal
validity
within
the
meaning
of
the
Income
Tax
Act.
If
the
appellant
had
known
that
the
respondent
would
raise
questions
of
fact,
the
appellant
would
have
taken
care
to
call
his
wife,
who
without
a
doubt
would
have
confirmed
that
she
had
accepted
the
offer
on
or
about
March
4,
1973.
To
sum
up,
the
appellant
reiterates
that
none
of
the
decisions
referred
to
by
the
respondent
establishes
that
the
document
which
is
the
subject
matter
of
this
action
is
not
a
separation
agreement
within
the
meaning
of
the
Income
Tax
Act.
(c)
The
respondent
recognizes
that
in
civil
law
as
in
common
law,
consent
alone
can
bind
without
additional
formalities.
The
respondent
asserts,
however,
that
paragraph
60(b)
of
the
Act
requires
that
the
said
consent
must
be
evidenced
in
writing.
The
appellant
does
not
deny
that
assertion
in
the
least.
It
is
true
that
the
Act
speaks
of
a
“written”
agreement.
But,
once
again,
for
the
existence
of
a
written
agreement
to
be
recognized
it
is
not
necessary
that
the
memorandum
be
signed
by
the
parties;
it
is
sufficient
that
the
agreement
be
expressed
in
writing
and
that
the
agreement
be
established.
How
can
the
federal
Interpretation
Act,
which
applies
in
doubtful
cases,
be
given
a
trained
interpretation
when
it
does
not
even
mention
signature?
How
can
one
go
against
the
common
law
and
civil
law
which
both
acknowledge
in
their
theory
and
in
their
case
law
that
a
memorandum
is
validly
made
when
it
is
signed
by
only
one
of
the
parties
provided
that
it
is
accepted
in
some
manner
by
the
other
party?
If
it
is
true,
as
the
respondent
claims
(p
14)
that
“the
separation
agreement
referred
to
in
the
Income
Tax
Act
necessarily
envisages
a
synallagmatic
contract
with
obligations
assumed
on
both
sides”,
this
document
is
a
memorandum
which
meets
all
the
conditions
mentioned
by
the
respondent
on
pages
14
and
15
of
his
notes.
The
argument
taken
from
the
common
law
that
when
the
signatory
intended
to
be
bound
if
and
only
if
the
other
person
was
bound
and
signed,
it
is
not
valid
here,
since
the
agreement
proposed
by
the
husband
to
the
wife
was
accepted
by
her
and
she
kept
a
copy
of
the
document
to
be
able
to
use
it
if
necessary.
Moreover,
the
relationship
between
paragraph
56(b)
and
60(b)
on
which
respondent
is
relying
does
not
in
itself
add
anything
more
to
the
debate
since,
in
any
case,
these
sections
do
not
refer
in
any
way
to
the
signature
and
the
question
becomes
one
ultimately
of
establishing
that
the
payments
have
been
made
pursuant
to
a
written
separation
agreement
—
which
is
the
case
here.
If,
moreover,
as
the
respondent
contends,
the
internal
logical
framework
of
the
Income
Tax
Act
requires
a
deduction
under
60(b)
and
an
inclusion
under
56(b),
the
appellant
would
observe
that
he
has
deducted
and
his
former
wife
has
included.
Finally,
the
respondent
submits
that
the
appellant’s
argument,
that
because
the
federal
legislature
in
both
the
Act
and
the
regulations
distinguishes
between
“written”
and
“signed”
therefore
a
meaning
must
be
given
to
the
two
different
expressions,
is
irrelevant.
The
appellant
submits,
with
respect,
that
his
line
of
reasoning
remains
valid
because
he
has
never
claimed
that
certain
regulations
referred
to
signed
agreements;
rather,
they
refer
to
“signed”
documents.
Thus,
the
regulations
could
have
referred
solely
to
“written”
receipts
but
they
specify
that
a
signature
is
necessary.
The
legislature
does
not
speak
to
no
effect,
and
a
meaning
must
be
given
to
different
expressions.
Conclusions:
In
conclusion,
the
appellant
submits
that
the
document
which
is
the
subject-matter
of
this
action
constitutes
a
written
separation
agreement
within
the
meaning
of
subparagraph
60(b)
of
the
Income
Tax
Act.
To
summarize
the
contents
of
his
notice
of
appeal
and
the
notes
filed
earlier,
the
appellant
reiterates
or
adds
the
following
points:
(1)
The
appellant
denies
the
respondent’s
contentions
concerning
the
purpose
of
the
action
and
of
the
evidence
itself.
This
action
is
concerned
essentially
with
the
construction
to
be
given
to
the
expression
“separation
agreement”
as
defined
in-section
248
of
the
Act
and
with
the
scope
of
the
words
“written
agreement”
found
in
paragraph
60(b)
of
the
Act.
First,
the
appellant
submits
that
the
separation
agreement
is
in
accordance
with
the
definition
given
to
it
by
the
Act.
“Separation
agreement”
includes
an
agreement
by
which
a
person
agrees
to
make
payments
on
a
periodic
basis
for
the
maintenance
of
a
former
spouse,
children
of
the
marriage,
or
both
the
former
spouse
and
children
of
the
marriage,
after
the
marriage
has
been
dissolved
whether
the
agreement
was
made
before
or
after
the
marriage
was
dissolved.
Now,
the
respondent
at
no
time
raised
a
question
concerning
the
separation
agreement’s
not
being
in
accordance
with
the
Act
itself.
He
would
not
be
able
to,
since
the
separation
agreement
is
in
all
respects
in
accordance
with
this
definition.
(2)
The
separation
agreement
is
a
written
agreement
since
no
one
can
deny
the
evidence
itself:
that
there
is
a
memorandum
which,
in
accordance
with
section
248
of
the
Act,
evidences
a
separation
agreement.
It
is
therefore
a
question
of
determining
whether
this
memorandum
of
an
agreement
is
“written”
within
the
meaning
of
paragraph
60(b)
of
the
Act.
And,
for
want
of
a
definition
of
the
word
“written”
in
the
Act,
it
is
necessary
to
turn
to
the
Interpretation
Act.
It
is
thus
beyond
question
that
the
separation
agreement
submitted
by
the
appellant
is
“written”
within
the
meaning
of
section
28
of
the
Interpretation
Act.
(3)
None
of
the
cases
cited
by
the
respondent
questions
the
status
of
a
document
of
the
type
which
is
the
subject-matter
of
the
action.
Moreover,
this
document
appears
in
circumstances
different
from
those
in
the
cases
cited
by
either
the
appellant
or
the
respondent.
(4)
According
to
civil
law
and
the
common
law,
a
written
offer
which
has
been
signed
or
initialled
by
the
party
to
be
charged
and
accepted
verbally
by
the
other
party,
or
the
acceptance
of
which
can
be
inferred
from
the
circumstances,
becomes
a
written
convention
or
agreement
which
binds
the
parties,
without
its
being
necessary
for
both
parties
to
sign
it
formally.
See
in
particular
Halsbury’s
Laws
of
England
and
Albion
Construction
v
Moreau,
[1956]
BR
830.
Moreover,
this
common-law
rule
is
not
altered
by
the
Income
Tax
Act.
This
statement
derives
from
the
very
definition
of
separation
agreement
which
says
that
“a
separation
agreement
includes
an
agreement
by
which
a
person
agrees
to
make
payments
.
.and
not
‘an
agreement
between
a
taxpayer
and
her
former
spouse
in
which
a
taxpayer
agrees
to
make
payments
.
.
.”.
Literally,
then,
it
can
be
contended
that
the
Income
Tax
Act
itself
allows
a
taxpayer
to
commit
himself
to
making
periodic
payments
to
his
former
wife
for
her
support,
without
her
having
to
be
involved.
(5)
Even
though
the
Act
must
be
strictly
construed
where
deductions
are
concerned,
for
the
rules
of
construction
to
apply
the
Act
must
first
be
ambiguous
or
give
rise
to
doubt.
However,
a
look
at
the
Interpretation
Act
clears
up
any
doubts,
for
the
federal
legislature
has
taken
care
to
give
a
clear
definition
of
the
word
“written”.
(6)
Where
the
federal
legislature
wishes
to
modify
the
common
law
or
civil
law,
it
must
do
so
expressly.
But
civil
law
like
the
common
law
recognizes
the
existence
of
a
written
agreement
even
though
acceptance
by
one
of
the
parties
is
verbal
or
to
be
implied
from
the
circumstances.
Consequently,
it
is
not
up
to
the
taxpayer
to
bear
the
consequences
of
an
Act
which
is
not
drafted
in
the
way
sought
by
the
respondent
but
which
must,
as
far
as
the
notion
of
written
separation
agreement
is
concerned,
be
construed
according
to
the
common
law
and
the
Interpretation
Act.
If
the
federal
legislature
wishes
to
derogate
from
these
laws
or
add
additional
requirements,
it
must
do
so
expressly
by
requiring
that
the
written
separation
agreement
be
signed
by
both
parties,
for
the
legislature
is
presumed
to
know
the
existing
law
and
especially
the
Interpretation
Act.
(7)
Even
though
some
few
judgments
have
referred
to
the
requirement
that
a
document
be
signed
expressly
by
both
parties,
the
fact
remains
that
most
of
these
decisions
were
aimed
at
rejecting
obviously
informal
documents
where
there
was
no
evidence
of
the
existence
of
a
true
agreement
binding
the
parties,
or
they
went
beyond
the
actual
wording
of
paragraph
60(b).
(8)
The
appellant
did
not
intend
the
document
as
fulfilling
his
obligation
of
maintenance,
imposed
on
him
by
the
civil
law;
on
the
contrary,
the
document
shows
that
the
parties
took
care
to
regulate
all
the
consequences
of
the
freely-agreed-to
separation:
dissolution
of
the
matrimonial
regime,
donations,
family
home,
custody
of
the
children
and
visiting
rights,
support
payments,
and
so
on.
(9)
The
document
was
technically
and
legally
confirmed
by
the
parties
who
have
shown,
by
carrying
out
the
obligations
arising
from
it
and
exercising
the
rights
deriving
from
it,
that
there
truly
was
an
agreement
within
the
meaning
of
the
Income
Tax
Act.
(10)
The
document
is
signed
by
the
party
who
proposed
it,
and
the
other
party
accepted
it
verbally.
Furthermore,
her
acceptance
was
confirmed
by
the
circumstances
that
the
appellant
has
related.
There
is
thus
a
written
agreement,
that
is
an
agreement
expressed
in
writing.
5.04
Analysis
5.04.1
Study
of
these
different
arguments
brings
us
to
the
crucial
point:
does
the
proposed
separation
agreement
filed
as
Exhibit
A-1
constitute
a
“written
separation
agreement”
within
the
meaning
of
paragraph
60(b)
of
the
Income
Tax
Act?
5.04.2
First
of
all,
there
is
no
doubt
that
document
A-1
concerns
the
separation
of
the
Jacoby
spouses.
It
includes
first
the
obligation
of
the
husband
to
pay
the
support
allowance,
which
by
itself
would
be
sufficient
according
to
the
definition
in
section
248
quoted
in
paragraph
5.01
to
constitute
a
separation
agreement,
if
agreement
there
be.
Exhibit
A-1
also
includes
the
appellant’s
right
to
visit
the
children
and
the
obligation
of
the
wife
to
look
after
the
children
and
see
to
their
education
and
maintenance.
It
also
includes
the
wife’s
obligation
to
notify
the
husband
in
the
event
of
illness,
provide
the
husband
with
the
opportunity
to
visit
the
children
undisturbed,
turn
over
to
the
husband
the
credit
cards
belonging
to
him,
refrain
from
using
the
husband’s
name
for
purchases,
forward
to
the
husband
all
documents
received
from
doctors,
dentists
and
pharmacists
concerning
herself
and
the
children,
and
so
on.
There
is
even
an
agreement
on
how
any
differences
which
arise
between
the
spouses
concerning
the
children
will
be
resolved.
5.04.3
Is
there
an
agreement?
An
agreement
is
a
contract
or
arrangement
between
a
minimum
of
two
persons.
The
consent
of
the
parties
is
the
specific
element
of
a
contract
(Traité
du
Droit
Civil
du
Québec,
G
Trudel,
Vol
7,
p
64)
and
it
must
be
evidenced
externally:
[TRANSLATION]:
Whatever
means
is
employed,
the
consent
must
be
evidenced
externally.
The
declaration
of
will
is
the
specific
element
of
legal
consent.
The
conversion
of
psychological
fact
into
legal
fact
takes
place
when
the
voluntary
act
is
made
manifest.
That
is
the
true
shape
of
consent
in
law.
This
external
evidencing
is
thus
essential.
Its
means
of
expression
are
undefined,
however.
In
theory,
the
sole
requirement
is
that
the
consent
be
demonstrated,
either
expressly
or
impliedly.
Here
exceptions
are
very
numerous
and
they
go
beyond
the
issue
of
consent,
very
often
forming
an
additional
element
of
the
very
essence
of
certain
contracts,
such
as
the
contract
of
marriage,
gifts,
and
hypothecs.
(Id,
pp
102
and
103.)
Thus,
consent
may
be
evidenced
without
writing
and
even
without
words.
The
verbal
contract
is
a
manifestation
of
the
formal
will.
This
is
not
necessary;
tacit
consent
does
not
require
oral
acquiescence
and
is
sufficient
according
to
article
988.
(Id,
p
104.)
Article
988
of
the
Civil
Code
states
“Consent
is
either
express
or
implied”.
In
the
case
at
bar,
was
express
or
implied
consent
given
by
the
two
parties
involved?
Document
A-1
bears
the
initials
of
the
appellant
husband.
It
does
not,
however,
yield
either
the
signature
or
the
initials
of
the
appellant’s
wife.
According
to
the
appellant
there
was
verbal
consent
following
the
discussions
of
the
draft
agreement
on
March
4,
1973.
The
spouses
lived
apart
during
the
period
in
question,
the
wife
having
the
custody
of
the
children,
the
appellant
husband
having
made
the
support
payments,
the
wife
having
received
them.
The
wife
did
not
come
to
testify
to
that
effect,
but
on
account
of
paragraph
9(2)
of
the
Act
creating
the
Tax
Review
Board,
the
Board
is
prepared
to
admit
that
evidence
(which
could
at
any
rate
easily
be
done
at
the
Trial
Division
level
of
the
Federal
Court)
so
that
all
the
appellant’s
arguments
may
be
examined
on
their
merits.
May
it
be
said
that
there
was
consent,
at
least
according
to
the
circumstances,
within
the
meaning
of
the
cases
cited
by
the
appellant
with
respect
to
both
civil
law
and
the
common
law?
The
Board
replies
in
the
affirmative
and
the
Board
is
of
the
view
that
there
was
a
separation
agreement
between
the
parties.
However,
is
it
a
written
separation
agreement
within
the
meaning
of
the
Income
Tax
Act?
5.04.4
In
support
of
his
submission
the
appellant
cited
the
following
statement
by
Mr
Justice
Collier
in
Horkins
v
HMQ,
[1976]
CTC
42
at
43;
76
DTC
6043
at
6044:
“so
nothing
was
agreed
or
signed”,
to
argue
that
the
signature
was
therefore
not
necessary,
that
the
verbal
agreement
or
the
circumstances
were
sufficient.
Examining
this
case,
the
Board
notes
that
this
statement
was
made
by
Collier,
J
in
the
context
of
outlining
the
facts.
It
must
be
read
in
context:
At
first
these
dealings
and
negotiations
were
carried
out
through
lawyers.
There
were
many
draft
written
agreements
passed
back
and
forth.
None
were
satisfactory,
so
nothing
was
agreed
or
signed.
For
a
time
attempts
were
made
.
.
.
to
resolve
matters.
Thus
these
words,
when
read
in
their
true
context
where
the
difficulties
and
back-and-forth
dealings
of
the
parties
in
arriving
at
an
agreement
are
described,
do
not
have
the
meaning
which
the
appellant
would
ascribe
to
them.
The
words
which
are
significant
in
the
judgment
are
those
written
when
he
was
delivering
his
decision:
“.
.
.
those
facts
cannot
be
held
to
be
an
agreement
in
writing
or
a
written
separation
agreement
(or
both).
They
do
not,
as
I
see
it,
meet
the
requirements
of
11
(1
)(l).”
5.04.5
In
support
of
his
contention
the
appellant
cited
the
definition
of
“written”
in
section
28
of
the
federal
Interpretation
Act.
The
definition
reads
as
follows:
In
every
enactment
“writing”,
or
any
term
of
like
import,
includes
words
printed,
typewritten,
painted,
engraved,
lithographed,
photographed,
or
represented
or
reproduced
by
any
mode
of
representing
or
reproducing
words
in
visible
form;
The
appellant
argues
that
this
definition
“makes
no
mention
of
signature
as
a
requirement
for
a
writing;
therefore
this
definition
supports
the
appellant’s
position”.
The
Board
thinks
that
this
definition
is
intended
only
to
describe
the
material
form
of
that
which
is
written.
It
would
be
strange
indeed
if
in
describing
“writing”
from
this
aspect
the
legislature
made
it
a
condition
that
in
order
for
something
to
be
in
writing
it
had
to
be
signed.
Many
documents
are
writings
although
unsigned.
Many
unsigned
writings
are
regularly
admitted
as
evidence
by
the
courts.
If
the
legislature
had
to
impose
such
a
condition
within
the
framework
of
the
Interpretation
Act,
which
applies
to
“every
enactment”,
it
would
be
legislating
against
the
most
basic
of
reality.
However,
when
talking
of
a
“written
agreement”,
that
does
not
imply
just
any
writing.
Does
it
not
mean
at
first
sight
that
the
consent
which
is
the
specific
element
of
the
agreement
be
made
in
writing?
Can
consent
be
given
in
writing
other
than
by
signature?
5.04.6
The
appellant
also
refers
to
Income
Tax
Regulations
2800(1),
3501
(1)(i)
and
3501(2),
which
are
quoted
in
paragraph
5.01
[of
this
judgment].
Regulation
2800
concerns
the
election
made
by
a
trustee.
Regulation
3501
deals
with
official
receipts
issued
by
registered
organizations
for
income
tax
purposes.
It
lists
the
conditions
for
allowing
the
election
and
the
receipt
stipulates
that
the
said
receipt
must
be
signed
personally
by
a
“responsible
individual
who
has
been
authorized
by
the
organization
to
acknowledge
donations”.
As
for
the
election,
provided
for
in
subsection
104(14)
of
the
Act,
the
signature
of
the
preferred
beneficiary
and
the
trustee
must
appear
together
on
one
statement,
and
a
second
signed
statement
must
also
be
filed
by
the
trustee.
The
Commission
is
of
the
view
that
the
legislature
saw
fit
to
specify
on
these
documents
that
a
signature
was
necessary
because,
from
their
very
nature,
the
receipts
could
easily
be
falsified
or
be
erroneous
without
signature,
whereas
according
to
Halsbury’s
Laws
of
England
(Third
Edition),
Vol
8,
no
183
(see
paragraph
5.02
[supra]),
a
stamp
is
sufficient.
It
is
known
how
widely
receipts
for
donations
to
charity
were
at
one
time
distributed.
The
legislature
doubtless
wished
to
be
able
to
identify
officials
responsible
for
signing
such
receipts
and
to
limit
abuses
before
they
took
place.
As
for
the
election
by
a
trustee,
it
is
common
knowledge
that
a
trustee
always
acts
for
and
administers
the
property
of
others.
Since
the
election
provided
in
subsection
104(14)
concerns
the
choice
of
means
of
calculating
the
income
of
preferred
beneficiaries,
the
legislature
wished
to
add
special
conditions
so
that
there
would
be
no
ambiguity
either
between
the
beneficiary
who
must
also
sign
and
the
trustee,
or
between
the
Department
of
Revenue
and
the
trustee
and
the
beneficiary.
In
the
Income
Tax
Act
there
are
four
other
provisions
where
the
taxpayer
may
make
an
election
in
the
calculation
of
income.
They
are
the
following
sections:
28(1)
election
respecting
the
“cash
method”
for
a
farming
business;
29(1)
election
regarding
basic
herds;
45(2)
election
regarding
change
in
use
of
property;
and
85(1)
election
regarding
the
transfer
of
property
to
a
corporation
by
a
shareholder.
However,
the
election
in
subsection
104(14)
is
the
only
one
where
the
legislature
has
laid
so
much
stress
on
the
“prescribed
manner”
described
in
the
regulations
—
which
confirms
its
special
character.
The
Board
is
therefore
of
the
view
that
if
the
legislature
wished
in
the
above-mentioned
regulations
to
make
the
fact
and
the
manner
of
signature
a
sine
qua
non,
it
is
because
the
circumstances
of
the
signature
(“personally”
in
one
case,
and
on
two
documents
in
the
other)
could
not
have
been
presumed
merely
from
the
text
of
the
section
of
the
Act.
5.04.7
In
the
case
at
bar
can
it
be
said
that
signature
cannot
be
presumed
from
the
wording
of
the
section
itself?
Let
us
reread
the
text:
“.
.
.
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,
.
.
.”.
It
seems
to
the
Board
first
that
the
very
words
“written
agreement”
indicate
that
the
consent
which
is
the
specific
element
of
the
contract
must
also
be
in
writing.
This
consent
in
effect
must
be
evidenced
by
signature,
if
the
legislature,
especially
in
a
taxation
statute
which
must
be
strictly
construed,
takes
the
trouble
to
specify
that
the
contract
must
be
written.
Does
that
not
amount
to
requiring
a
formality
in
the
contract
to
a
degree
which,
without
making
it
equivalent
to
a
contract
under
seal,
which
must
be
notarized,
at
least
brings
it
close
by
means
of
another
formality,
namely
signatures?
5.04.8
In
addition,
if
one
considers
that
“written
agreement”
takes
the
place
of
a
“decree,
order
or
judgment
of
a
competent
tribunal”,
it
is
rather
difficult
to
conclude
that
the
legislature
did
not
mean
that
the
contract
should
not
be
signed.
The
formalities
with
which
courts
issue
written
judgments
are
well
known.
5.04.9
The
Board
believes
that
in
the
case
at
bar,
in
order
to
narrow
further
the
construction
of
the
expression
“written
agreement”,
it
is
appropriate
to
use
the
rule
of
construction
applicable
when
the
word
or
expression
to
be
construed
is
capable
of
two
constructions,
one
of
which
in
the
case
at
bar
would
favour
the
appellant’s
position
and
the
other
the
position
of
the
respondent.
In
such
a
case
it
is
necessary
to
select
the
construction
which
is
best
in
harmony
with
the
words,
intention
and
object
of
the
statute,
and
again,
without
regard
to
consequences.
See
E
Driedger,
Construction
of
Statutes,
p
37.
The
Board
believes
that
the
argument
described
in
paragraph
5.04.8,
to
the
effect
that
the
“written
agreement”
takes
the
place
of
a
judgment
made
by
a
competent
tribunal,
is
valid
to
show
that
the
intention
of
the
legislature
was
that
the
written
contract
should
be
signed.
As
well,
the
words
“agreement”,
“contract”
and
“arrangement”
(in
the
French
version
“contrat”,
“accord”,
“convention”,
“entente”
and
“arrangement”)
are
used
at
least
in
the
following
sections
of
the
Act:
subsections
6(3),
7(1),
paragraph
8(1
)(d),
subsections
16(1),
16(4),
105(1),
227(12),
sections
228,
248
and
254,
and
in
regulations
300
and
301,
and
so
on.
And
in
all
these
provisions
the
legislature
never
uses
the
word
“written”
before
“contract”,
“agreement”
and
so
on,
as
it
does
in
paragraph
60(b)
and
56(1
)(b).
Yet
among
these
contracts
there
is
no
doubt
that
they
must
be
written
and
signed.
For
example:
(a)
a
collection
agreement
drawn
up
between
the
federal
government
and
the
provinces
pursuant
to
the
Federal-Provincial
Fiscal
Arrangements
Act;
(b)
a
contract
under
a
pension
plan
(section
254);
and
(c)
paragraph
16(4)(c),
which
speaks
of
“the
rights
of
the
taxpayer
under
a
life
annuity
contract
.
.and
paragraph
16(4)(b)
which
speaks
of
a
“holder
of
a
life
annuity
contract”.
It
is
then
very
clear
that
if
the
legislature
speaks
of
a
holder
(signataire),
someone
has
signed
following
a
written
contract.
Yet
it
does
not
say
“written
contract”
in
the
Act.
It
follows
then
that
sometimes
when
there
is
reference
simply
to
“agreement”
or
to
“contract”,
there
is
no
need
to
specify
that
it
be
written
and
signed;
that
would
be
redundant,
doubtless
because
of
the
very
nature
of
the
contract.
But
when
the
legislature
in
another
connection
takes
the
trouble
to
say
“written
agreement”,
it
seems
to
the
Board
that
this
written
agreement
must
of
necessity
be
signed.
5.04.10
The
Board
recommends
to
the
respondent
that
if
a
tax
has
been
levied
on
the
wife
of
the
appellant
the
assessment
be
revised
accordingly.
6.
Conclusion
The
appeal
is
dismissed
in
accordance
with
the
foregoing
reasons
for
judgment.
Appeal
dismissed.
Email this Content