Hamlyn
T
.
C.J.:
This
appeal
is
in
respect
of
the
Appellant’s
1996
taxation
year.
In
computing
her
income
for
the
1996
taxation
year,
the
Appellant
did
not
include
the
amount
of
$20,001.00
allegedly
received
in
the
year
as
alimony
or
maintenance
payments.
By
Notice
of
Reassessment
dated
July
4,
1997,
the
Minister
of
National
Revenue
(the
“Minister”)
reassessed
the
Appellant’s
income
tax
return
for
the
1996
taxation
year
and
included
the
amount
in
income.
Facts
As
part
of
matrimonial
litigation,
Minutes
of
Settlement
(the
“Minutes”)
dated
the
8th
day
of
June,
1993
were
entered
into
by
the
Appellant,
the
Appellant’s
mother
(Alice
Huskinson)
and
the
Appellant’s
former
spouse,
William
Louis
Boomhour.
The
Minutes
dealt
with
many
issues
flowing
from
marriage
breakdown
and
collateral
financial
relations
between
the
parties.
In
particular,
clause
13
of
the
Minutes
provided:
The
husband
shall
pay
to
the
wife
for
spousal
support,
the
sum
of
$6,667.00
each
year
for
the
years
1993,
1994,
1995,
due
and
payable
on
May
1
st
of
each
year.
The
parties
acknowledge
that
the
1993
payment
is
due
and
owing
and
the
husband
shall
have
until
August
I,
1993
to
arrange
his
finances
and
make
the
said
payment.
The
Minutes
were
included
in
the
judgment
of
The
Honourable
Mr.
Justice
J.G.
Kerr
of
the
Ontario
Court
(General
Division),
file
no.
846/89.
The
judgment
was
the
same
date,
8th
day
of
June,
1993.
On
the
21st
day
of
December,
1993,
The
Honourable
Mr.
Justice
Lane
of
the
Ontario
Court
(General
Division)
on
a
motion
by
the
Appellant’s
mother
requesting,
inter
alia,
the
Minutes
be
set
aside
ordered
a
trial
of
the
issue.
It
is
to
be
noted
the
Minutes
were
not
stayed
pending
the
trial
of
the
issue.
On
the
15th
day
of
January,
1996
The
Honourable
Mr.
Justice
D.S.
Ferguson
of
the
Ontario
Court
(General
Division)
after
hearing
the
trial
of
the
issue
ordered:
1.
THIS
COURT
ORDERS
that
the
Minutes
of
Settlement
dated
June
8,
1993
entered
into
between
William
Louis
Boomhour,
Linda
Boomhour
and
Alice
Huskinson
in
File
846/89
are
valid
and
binding
and
shall
be
enforced.
The
amounts
of
the
annual
spousal
support
payments,
specified
in
clause
13
were
not
paid
when
due.
After
the
judgment
of
The
Honourable
Mr.
D.S.
Justice
Ferguson,
William
Boomhour
paid
the
Appellant
on
the
5th
day
of
July,
1996
by
certified
cheque
the
amount
of
$20,001.00
For
all
the
years
in
question
the
Appellant
and
William
Boomhour
were
living
separate
and
apart
from
each
other.
The
Appellant’s
Position
The
Appellant
appeals
the
Minister’s
reassessment
on
the
basis
the
$20,001.00
payment
in
full
received
was
not
a
spousal
support
payment
payable
on
a
periodic
basis
that
had
fallen
in
arrears
and
that
the
amount
paid
at
best
was
a
lump
sum
payment
and
need
not
be
included
in
comput-
ing
her
income
in
accordance
with
paragraph
56(1)(b)
of
the
Income
Tax
Act
(the
“Act”).
Analysis
The
judgment
of
Mr.
Justice
Ferguson
was
clear
and
unambiguous,
the
Minutes
dated
the
8th
day
of
June,
1993
were
valid,
binding
and
enforceable.
Moreover,
clause
13
of
the
Minutes
was
clear
and
unambiguous.
The
payments
were
for
“spousal
support”
and
were
payable
on
a
periodic
basis
(annually).
The
payment
sums
in
relation
to
William
Boomhour
were
such
in
size
that
they
lead
only
to
an
inference
of
support
payments
as
opposed
to
a
lump
sum
capital
or
a
settlement
payment.
There
appears
to
be
no
prohibition
on
the
Appellant
to
seek
further
and
other
support
relief.
In
summary,
the
amounts
to
be
paid
annually
were
for
spousal
support
(maintenance)
of
the
Appellant.
The
amounts
were
predetermined
and
payable
on
a
periodic
basis.
The
amounts
were
made
payable
pursuant
to
the
Minutes.
The
Appellant
and
William
Boomhour
were
separated
for
1993,
1994,
1995
and
1996
years.
The
use
of
the
payments
was
solely
at
the
discretion
of
the
Appellant.
The
actual
payment
made
($20,001.00)
was
an
arrears
payment
of
spousal
support.
Conclusion
The
amount
received
by
the
Appellant
in
the
1996
taxation
year
was
on
account
of
payments
specified
in
the
Minutes
as
periodic
spousal
support
payments
that
had
fallen
into
arrears
and
must
be
included
in
the
computing
of
the
Appellant’s
income
in
accordance
with
paragraph
56(1)(b)
of
the
Act.
Decision
The
appeal
is
dismissed.
Appeal
dismissed.
Email this Content