The
facts
of
this
appeal
and
the
contentions
of
the
appellant
are
set
out
clearly
in
paragraphs
2
to
9
of
the
notice
of
appeal,
which
read
as
follows:
2.
Alimony
payments
totalling
$23,818
were
made
in
the
following
manner:
2.1
$225
per
week
for
52
weeks;
2.2
$75
per
week
during
the
period
from
February
3,1975
to
December
31,1975;
2.3
$8,000
representing
the
payments
due
in
July
1975
and
July
1976
from
a
total
sum
of
$20,000
to
be
paid
over
a
period
of
5
years
in
accordance
with
the
judgment
mentioned
above;
3.
On
March
7,
1978
the
Minister
issued
a
reassessment
after
reviewing
the
alimony
mentioned
above,
setting
in
at
$15,635;
4.
The
amount
was
reassessed
“in
such
a
way
as
to
exclude
the
amount
of
$8,000
paid
in
partial
fulfilment
of
Mr
Dorion’s
obligations
under
the
marriage
contract”,
the
Minister
being
“of
the
opinion
that
a
lump
sum
payment
of
$20,000.00
does
not
qualify
as
alimony
as
it
constitutes
a
capital
amount”;
5.
The
taxpayer
filed
a
notice
of
objection
to
the
reassessment;
it
was
dismissed
by
the
Minister
on
October
30,
1978;
6.
The
claimant
is
of
the
opinion
that
the
deduction
of
$8,000
claimed
as
alimony
in
his
tax
return
of
the
1976
taxation
year
is
allowable
for
the
following
reasons:
6.1
The
claimant
has
filed
in
support
hereof,
to
have
effect
as
if
stated
at
length
as
No
R-1,
a
copy
of
the
judgment
rendered
by
Mr
Justice
Roger
Chouinard
on
February
3,
1975
specifying
the
amount
of
alimony
the
appellant
is
required
to
pay
to
Louise
Marquis;
6.2
According
to
the
copy
of
this
judgment,
Louise
Marquis
forfeited
her
rights
to
gifts
by
the
marriage
contract,
including
wedding
gifts,
and
her
claim
of
$40,000.
as
a
lump
sum
was
dismissed;
6.3
The
same
judgment
grants
Louise
Marquis
“for
her
maintenance,
alimony
of
$225.
per
week
payable
every
Friday,
as
well
as
an
amount
of
$20,000
to
be
paid
at
the
rate
of
$4,000
per
year
for
five
years;
the
first
payment
is
to
be
made
within
six
months
of
the
date
of
this
judgment
and
other
payments
are
to
be
made
on
July
1
of
each
of
the
succeeding
years,
without
interest,
until
the
total
sum
is
paid”;
6.4
The
same
judgment
specifies
that
“in
the
future,
liability
for
taxes
associated
with
the
amounts
paid
for
the
maintenance
of
the
spouse
shall
be
removed
from
the
respondent
and
constitute
a
partial
burden
for
the
petitioner”;
7.
The
appellant
is
of
the
opinion
that
the
amount
paid
is
an
allowance
for
the
maintainance
of
the
recipient
payable
on
a
periodic
basis,
in
conformity
with
paragraph
60(b)
of
the
Income
Tax
Act;
8.
With
reference
to
Interpretation
Bulletin
No
IT-118R
dated
August
30,1976,
the
amount
of
$8,000
paid
by
the
appellant
does
in
fact
meet
all
the
following
requirements:
8.1.
The
amount
was
paid
as
alimony
for
the
maintenance
of
the
former
spouse,
Louise
Marquis;
8.2.
The
appellant
and
his
former
spouse,
Louise
Marquis,
have
been
living
apart
since
1970;
8.3.
The
amount
was
paid
pursuant
to
the
judgment
of
Mr
Justice
Roger
Chouinard
mentioned
above;
8.4.
The
amount
paid
was
part
of
a
series
of
payments
payable
on
a
periodic
basis—July
1
each
year,
as
specified
in
the
judgment
rendered—and
were
made
“periodically
(annually),
recurring
at
fixed
times,
not
at
variable
periods
(July
1
each
year
for
5
years),
not
in
the
exercise
of
the
discretion
of
one
or
more
individuals,
but
from
some
antecedent
obligation”;
8.5.
The
lump
sum
of
$8,000
was
paid
in
the
1976
taxation
year
“on
account
of
amounts
payable
periodically
that
were
due
after
the
date
of
the
order
(February
3,
1975)
and
had
fallen
into
arrears
($4,000
for
1975
and
$4,000
for
1976)”;
it
should
therefore
be
considered
a
periodic
payment;
8.6.
“The
specific
wording
in
the
order”
cited
in
paragraph
6.3
above
shows
that
these
payments
can
properly
be
considered
‘periodic’
under
paragraph
60(b)
of
the
Income
Tax
Act
since:
8.6.1.
the
total
sum
of
$8,000
is
subject
to
regular
payments
of
$4,000
per
year
and,
according
to
the
judgment
mentioned
above,
“is
an
allowance
for
the
purpose
of
the
support
and
maintenance”
of
the
former
spouse
of
the
appellant;
8.6.2
“each
regular
payment
is
consistent
with
that
purpose”
and
8.6.3.
“they
are
spread
over
an
extended
period”
(5
years
from
July
1,
1975);
8.7.
Moreover,
the
“annual
payment
required
by”
the
judgment
mentioned
above
“is
regarded
as
payable
on
a
periodic
basis”
since
“a
series
of
such
payments
is
to
be
made”;
8.8.
The
sum
of
$8,000
was
paid
to
Louis
Marquis
personally,
as
shown
by
the
photocopy
of
the
appellant’s
cheque,
filed
in
support
hereof
to
have
effect
as
if
stated
at
length
as
No
R-2,
as
was
the
sum
of
$4,000
paid
in
1977,
as
shown
by
the
photocopy
of
the
appellant’s
cheque,
filed
in
support
hereof
to
have
effect
as
if
stated
at
length
as
No
R-3;
9.
The
appellant
also
cites
certain
decisions
handed
down
by
the
Courts
in
relation
to
the
interpretation
of
terms
used
in
paragraph
60(b)
of
the
Income
Tax
Act:
9.1.
In
the
case
of
MNR
v
William
Albert
Hansen,
reported
in
1967
CCH,
Dominion
Tax
Cases,
page
5293,
the
Exchequer
Court
of
Canada
ruled
that:
“an
examination
of
the
text
of
the
separation
agreement
convinced
the
Court
that
one
of
the
prime
purposes
of
the
agreement
was
to
make
arrangements
for
“the
support
and
maintenance
of
the
wife”.
This
was
forecast
by
the
preamble
to
the
agreement
and
was
provided
for
exclusively
in
one
of
its
Substantive
provisions,”
and
dismissed
the
appeal
by
the
Minister;
9.2
In
the
case
of
Takis
P
Veliotis
v
Her
Majesty
the
Queen,
[1974]
CTC
237;
74
DTC
6190,
the
Federal
Court
of
Canada,
in
dismissing
the
appeal
by
Veliotis,
stated
that
“The
Plaintiff
had
been
ordered
to
pay
his
wife
$50,000
in
lieu
of
alimony
(ie,
as
a
substitute
for
alimony)”
while
the
judgment
of
Mr
Justice
Roger
Chouinard,
cited
in
part
in
the
preceding
paragraph,
specifies
that
the
sum
of
$20,000
to
be
paid
at
the
rate
of
$4,000
per
year,
is
payable
for
the
maintenance
of
the
appellant’s
former
spouse
and,
“in
establishing
the
amounts
to
be
paid
for
the
maintenance
of
the
petitioner”,
mentions
that
“liability
for
taxes
associated
with
the
amounts
paid
for
the
maintenance
of
the
spouse
shall
be
removed
from
the
respondent”,
while,
contrary
to
the
facts
of
the
Violitis
[sic]
case,
Mr
Justice
Chouinard
had
purely
and
simply
dismissed
the
claim
made
by
Louise
Marquis
for
a
lump
sum
payment
of
$40,000;
The
respondent
maintains
that
the
sum
of
$8,000
does
not
constitute
an
amount
paid
under
paragraph
60(b)
of
the
Income
Tax
Act.
The
amount
at
issue
was
awarded
pursuant
to
a
judgment
delivered
by
Mr
Justice
Roger
Chouinard,
Superior
Court
Judge
for
the
District
of
Quebec.
Part
of
the
judgment
reads
as
follows:
One
of
these
factors
may
be
the
lump
sum
or
the
instalment
payments
that
the
Court
may
order
the
respondent
to
pay
for
the
maintenance
of
the
former
spouse.
It
is
important
to
examine
one
by
one
each
of
the
factors
affecting
the
state
and
the
means
of
each
of
the
parties
and
other
circumstances
in
which
they
find
themselves,
for
the
purpose
of
establishing
in
a
fair
and
proper
manner
the
amounts
that
the
Court
deems
reasonable
for
the
maintenance
of
the
petitioner.
As
mentioned
above,
the
petitioner’s
state
of
health
is
such
that
she
will
most
likely
require
medical
attention
in
the
future
and
will
be
unable
to
take
a
paying
job
for
quite
a
while,
as
the
evidence
clearly
shows.
In
light
of
the
above
and
the
evidence
in
general,
the
Court
feels
justified
in
awarding
the
petitioner,
for
her
maintenance,
alimony
of
$225
per
week
payable
every
Friday,
as
well
as
an
amount
of
$20,000
to
be
paid
at
the
rate
of
$4,000
per
year
for
five
years;
the
first
payment
is
to
be
made
within
six
months
of
the
date
of
this
judgment
and
the
other
payments
are
to
be
made
on
July
1
of
each
of
the
succeeding
years,
without
interest,
until
the
total
sum
is
paid.
In
establishing
the
amounts
to
be
paid
for
the
maintenance
of
the
petitioner,
the
Court
has
taken
into
account
the
forfeiture
of
benefits
under
the
marriage
contract
that
it
has
adjudged
and
has
not
awarded
the
lump
sum
of
$40,000
claimed
by
the
petitioner,
even
though
her
work
throughout
the
duration
of
the
marriage
certainly
contributed
to
the
assets
built
up
by
the
respondent
during
that
period.
The
forfeiture
is
adjudged
in
light
of
the
amount
awarded
for
the
maintenance
of
the
petitioner
and
the
circumstances
revealed
by
the
testimony,
not
in
light
of
the
actions
of
the
petitioner.
In
the
future,
liability
for
taxes
associated
with
the
amounts
paid
for
the
maintenance
of
the
spouse
shall
be
removed
from
the
respondent
and
constitute
a
partial
burden
for
the
petitioner.
This
judgment
clearly
states
that
the
lump
sum
payment
of
$40,000
claimed
by
the
petitioner
for
having
contributed
to
the
assets
built
up
by
the
appellant,
was
not
awarded
and
that
the
sum
of
$20,000,
payable
in
five
instalments
of
$4,000
per
year,
is
to
be
paid
for
the
maintenance
of
the
appellant’s
former
spouse.
Therefore
the
appellant
has
met
all
of
the
requirements
of
paragraph
60(b),
that
is:
1.
amount
paid
in
the
taxation
year;
2.
pursuant
to
a
judgment;
3.
as
an
allowance
payable
on
a
periodic
basis;
4.
for
the
maintenance
of
the
recipient—the
judgment
makes
many
references
to
the
fact
that
the
amounts
in
question
were
for
the
maintenance
of
the
former
spouse;
5.
the
taxpayer
was
separated
(pursuant
to
a
divorce);
6.
the
amount
was
paid
to
the
former
spouse
to
whom
the
appellant
was
required
to
make
the
payment
at
the
time
the
payment
was
made
and
throughout
the
remainder
of
the
year.
Moreover,
the
payments
were
made
in
conformity
with
the
definition
of
“allowance”
given
in
the
case
of
Attorney
General
of
Canada
v
James
Weaver
and
Freda
Weaver,
[1975]
CTC
646;
75
DTC
5462:
“a
limited
predetermined
sum
of
money
paid
to
enable
the
recipient
to
provide
for
certain
kinds
of
expense;
its
amount
is
determined
in
advance
and,
once
paid,
it
is
at
the
complete
disposition
of
the
recipient,
who
is
not
required
to
account
for
it”.
All
of
these
elements
have
been
proved.
After
examining
the
judgment,
I
am
convinced
that
an
additional
amount
of
$4,000
per
year
for
five
years
was
awarded
to
the
former
spouse
in
view
of
her
state
of
health,
which
would
entail
future
medical
care
and
prevent
her
from
taking
“a
paying
job
for
some
time”.
I
feel
the
appellant
has
satisfied
all
the
requirements
of
paragraph
60(b)
and
for
these
reasons
I
allow
the
appeal.
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