Vosko v. R., [1999] 4 CTC 2311, 99 DTC 1012

Lamarre Proulx T.C.J.:

These appeals concern the 1989, 1990 and 1992 taxation years. The question at issue is whether the legal and professional expenses incurred by the Appellant, respecting legal disputes arising from a divorce procedure, are on income or on capital account.

The amounts claimed for each of the taxation years are $44,083, $172,029 and $102,504 respectively. The Appellant submitted that these amounts were expended in relation to her alimony. The Respondent submitted that they were mainly made or incurred for the purpose of litigating divorce proceedings, obtaining a compensatory allowance or the property of the matrimonial house, obtaining a lump sum payment, increasing the alimony, obtaining a refund for the legal and expert expenses incurred in the divorce proceedings. Some amounts were allowed by the Respondent, $1,600 for the year 1989 and $3,700 for the year 1990. According to the Respondent, these were the only legal costs relating to the increase of the alimony.

There was a preliminary motion made by counsel for the Respondent for the purpose of amending the Reply to the Notice of Appeal to include allegations that all legal expenses and expert expenses had been paid pursuant to the Court judgements in the divorce proceedings and that they should have been included as income in the years where the judgements were rendered or executed. This motion was opposed by counsel for the Appellant on the grounds that it changed the basis on which the Appellant was assessed and that it was late. The Court found that the motion could not be granted for these same reasons. If it is a matter of payments that were not included in the calculation of the Appellant’s income for the relevant years, the means to rectify this is by the issuance of an additional assessment. See Millette c. R. (1999), 99 D.T.C. 527 (Fr.) (T.C.C.) at pages 534 to 536, paragraphs 69 to 79. Moreover a substantial amendment should not be asked on the eve of the trial where the facts had been known by the Minister of National Revenue (the “Minister”) for a long time. The Minister had in his possession all the relevant judgments. The motion was therefore dismissed with costs in favour of the Appellant.

There were two witnesses, the Appellant and Ms. Kwee Chung for the Respondent. The testimony of the latter being essentially on the assessments will not be related. The Appellant produced a Book of Documents, Exhibit A-l. This exhibit is divided into 26 tabs. The first 25 tabs relate to court proceedings and judgments. Tab 26 is composed of more than one hundred pages and it pertains to the invoices of the various lawyers who were involved in the Appellant’s divorce proceedings, as well as the fees of an accountant. A Motion for Accessory Measures, dated August 28, 1992, was also produced as Exhibit A-2. The Respondent produced a Book of Documents as Exhibit R-l. It is divided into 38 tabs. The first 18 tabs relate to the assessments. From tabs 19 to 34, there are court proceedings and judgments. From tabs 35 to 38, there are quitclaim deeds and cheques.

On September 15, 1986, the Appellant and her then husband, Mr. Giovanni Mastromonaco, signed a Consent to Judgment on Accessory Measures to Apply to Provisional Measures as well as Final Separation Judgment (Tab 1 of Exhibit A-1, Tab 19 of Exhibit R-1). The parties had agreed that Ms. Vosko would receive, as alimony, the amount of $3,340 per month. That alimony had been paid since June 1st, 1986. She was also to receive, as employment income from a company owned and operated by Mr. Mastromonaco, a weekly salary of $375. The husband was to continue to pay all normal and usual car expenses incurred by Ms. Vosko, including insurance. The husband was also to pay all expenses relevant to the matrimonial resi- dence where Ms. Vosko was entitled to continue to reside, together with her own two children. (Ms. Vosko has three children from a previous marriage. There was no mention of the other child in the agreement). He undertook to pay all medical and dental bills for her and her two children. The last two clauses were to the effect that the Memorandum of Agreement was not to be construed as a renunciation to other claims that Ms. Vosko might have in an eventual action for divorce and that each party would pay their own legal costs. On February 9, 1987, a judgment of the Superior Court granted the separation from bed and board and gave effect to the agreement (Tab 20 of Exhibit R-1).

An action for divorce was taken by Mr. Mastromonaco, dated November 2, 1987. The corollary relief sought was in accordance with the afore-mentioned agreement between the parties (Tab 21 of Exhibit R-1, Tab 2 of Ex- hibit-A 1).

On August 22, 1988, Ms. Vosko made a Contestation and Cross-Demand in Divorce (Tab 22 of Exhibit R-1). It was admitted in that procedure that the corollary relief stated in Mr. Mastromonaco’s action for divorce was the agreement reached between the parties before the judgment for separation from bed and board and confirmed by that judgment. In her crossdemand, Ms Vosko made a few statements explaining the work that she had done in Mr. Mastromonaco’s company. She asked for a compensatory allowance of $1,000,000, based on the fact that she participated in her husband’s enrichment. She asked for an alimony of $4,000 per month while living in the matrimonial house and $5,500 per month after she moved out from this house. She wanted to continue to live in the matrimonial home for two more years.

On March 21, 1989, a Motion to Vary the amount of alimony payable was made by Mr. Mastromonaco (Tab 3 of Exhibit A-1). The offer was $2,500 per month and that Ms. Vosko be ordered to leave the family residence within a delay of four months.

In June 1989, a seizure was made by Ms. Vosko, on the moveable goods of Mr. Mastromonaco for reasons of arrears of the alimony payments for the month of June and of unpaid medical bills (Tab 4 of Exhibit A-1). There was an Opposition to Seizure and Execution made by Mr. Mastromonaco (Tab 5 of Exhibit A-l).

On February 22, 1990, Ms Vosko made an Amended Contestation and Cross-Demand in Divorce (Tab 23 of Exhibit R-1). At that time, in addition to the compensatory allowance in the amount of $1,000,000, she asked for a lump sum payment in the amount of $1,000,000. She also asked for an alimony in the amount of $9,000 per month. She also demanded payment of expert and legal costs. On June 18, 1990, another amendment to the Contestation and Cross-Demand was made. This one added the condition that the judgment sought be executory, notwithstanding appeal. On June 18, 1990, Ms. Vosko made a Re-amended Contestation and Cross-Demand in Divorce adding some more requests (Tab 24 of Exhibit R-1, Tab 6 of Exhibit A-1).

On October 17, 1990, a judgment of the Superior Court was rendered by Justice Herbert Marx, (Tab 7 of Exhibit A-l, Tab 25 of Exhibit R-1). The divorce was granted as the parties had lived separate and apart for more than one year. The judgment also stated that it was the second marriage and the second divorce for both parties who were married in Montréal on October 21, 1971; that they each had three children from their previous marriages now of the age of majority; and that no children were born of their marriage. I quote the following excerpt from that judgment: The question at issue revolves around Mrs. Vosko’s cross-demand for corollary relief. She is seeking the following relief: an alimentary allowance of $9,000 per month, net of taxes; a compensatory allowance of $1,000,000; a lump sum payment of $1,000,000 or the ownership of the family residence; legal fees of $82,790.96 plus 10% of any compensatory allowance or lump sum payment, and expert fees of $96,974.36. There is also the issue of two seizures: one by the plaintiff for his purported household furnishings at the family residence in Hampstead, and the other by the defendant for certain outstanding bills not paid by her husband. The judgment related that at the time of the judgment, Ms. Vosko was receiving an alimony of $3,340 per month plus a monthly salary of $1,625. She continued to reside in the family residence and Mr. Mastromonaco was responsible for paying all her car expenses, all expenses on the residence as well as all her dental and medical bills.

In respect of the compensatory allowance, Ms. Vosko sought an amount of $1,000,000. The judge found that she did not contribute to her husband’s enrichment more than by being a supportive wife. He also found that Ms. Vosko had been on the husband’s company payroll since 1971. Her salary over the years totalled about $275,000 and she had been paid for whatever services she had rendered to the company. The judge found that Ms. Vosko contributed certain sums of money. At the end of his analysis, the Court found that Mr. Mastromonaco was enriched in the amount of $75,000 and this was the amount of the compensatory allowance. To this award was ad- ded all the moveables garnishing the former conjugal domicile plus an amount of $28,150 for their repairs. With regards to the lump sum payment of $1,000,000, the Court noted that the Divorce Act provides, at subsection 15(2), for such payments in a support order. The Court deemed it necessary that Ms. Vosko be awarded a substantial lump sum payment to permit her to purchase a house, to provide for moving and relocation expenses, to permit her to pay her debts, to provide for her present and future financial security and to enable her to pay her legal and expert fees. As well, this payment plus her alimony, will allow her to maintain a lifestyle comparable to that which she had during her marriage. A lump sum payment in the amount of $750,000 was awarded. She was also awarded an amount of $96,974.36 for the expert fees and the amount of $82,790.96 for the legal fees. In respect to the alimony, Ms. Vosko was asking $9,000 per month, indexed and net of taxes. It was fixed to $6,500 per month, not net of taxes.

On November 2, 1990, Mr. Mastromonaco appealed from Justice Marx’s judgment (Tabs 8 and 9 of Exhibit A-l, Tabs 26 and 27 of Exhibit R-1). Justice Marx had ordered the provisional execution of the elementary provisions of this judgment notwithstanding appeal. On November 2, 1990, Mr. Mastromonaco made a Motion to Suspend Provisional Execution, that the payment of the lump sum be suspended in its entirety and that the alimony payable to Ms. Vosko be suspended to the extent of $3,500 per month (Tab 10 of Exhibit A-l, Tab 28 of Exhibit R-1). A judgment appears to have been issued reducing the payment of the lump sum to $100,000 (Tab 11 of Exhibit A-l).

On January 25, 1991, a Motion to Vary was made by Ms. Vosko for the purpose of obtaining a lump sum in the amount of $2,500,000 in lieu of any further alimony payments (Tab 14 of Exhibit A-l)

On January 30, 1991, Ms. Vosko made a seizure of the moveable effects of Mr. Mastromonaco (Tab 15 of Exhibit A-l). On February 1, 1991, a Motion to Quash the Writ of Seizure Before Judgment was made by Mr. Mastromonaco (Tab 16 of Exhibit A-1). Another one was made on February 21, 1991 (Tab 17 of Exhibit A-1). On March 27, 1991, another seizure was made on the moveable effects of Mr. Mastromonaco (Tab 18 of Exhibit A- 1). On April 12, 1991, there was a motion by Mr. Mastromonaco opposing the seizure (Tab 19 of Exhibit A-1).

In respect to the motion to vary the judgment of Justice Marx for a lump sum payment of $2,500,000, motion referred to at paragraph 14 of these Reasons, Mr. Mastromonaco made a verbal motion that the variation re- quested was not admissible. That verbal motion was dismissed by Justice Filiatreault on May 1, 1991 (Tab 20 of Exhibit A-1). On May 28, 1991, a Motion to Vary the Alimentary Support was made by Mr. Mastromonaco (Tab 21 of Exhibit A-l). On August 7, 1991, another seizure was made by Ms. Vosko (Tab 22 of Exhibit A-1), which was opposed by Mr Mastromonaco (Tab 23 of Exhibit A-1).

The judgment, respecting the various motions previously described, among others, the motion to replace the alimony payments by a lump sum payment, motion made by Ms. Vosko, or the motion to reduce the amount of alimony, motion made by Mr. Mastromonaco, was rendered by Justice Deslongchamps of the Superior Court on June 18, 1992 (Tab 24 of Exhibit A-1, Tab 33 of Exhibit R-1). The judgment first gave effect to an agreement reached by the parties on February 3, 1992 respecting a lump sum payment and the compensatory allowance. To settle the lump sum payment (referred to at paragraph 12 of these Reasons), the Hampstead house valued by the parties at $750,000 was transferred to Ms. Vosko and there was a payment of $79,765.32 in addition to the amount of $100,000 already paid. Respecting the compensatory allowance of $75,000, the moveables were given to Ms. Vosko in payment of that allowance. Left to be decided by Justice Deslongchamps was the motion made by Ms. Vosko to replace the alimony payments by a lump sum of $2,500,000. He decided that the amount should be established at $775,000.

A Motion for Accessory Measures was made by the Appellant on August 28, 1992. It had for purposes to vary the judgment of Justice Deslongchamps to increase the amount of $775,000 to an amount of $1,620,278 (Exhibit A-2). On November 24, 1992, another judgment was rendered by the Superior Court: this time by Mr. Justice Tellier (Tab 25 of Exhibit A-l and Tab 34 of Exhibit R-1). The Court granted Ms. Vosko a sum of $28,000 representing alimony payments for four months. Moreover, the Court ordered Mr. Mastromonaco to pay an amount of $7,200 per month, as of December 1, 1992, if in the meantime the plaintiff has not satisfied the judgment of Justice Deslongchamps respecting the amount of the lump sum to be paid in lieu of alimony, amount affirmed by Mr. Justice Tellier.

On November 25, 1992, the legal dispute ended. Ms. Vosko signed a Quittance and Full Discharge. She declared that she had received full payment of the amount of $775,000 (Tab 35 of Exhibit R-1). She signed another Quittance and Full Discharge, having received the amount of $53,000 representing $28,000 of alimony for a period of four months and a lump sum of $25,000 for additional costs (Tab 36 of Exhibit R-1). The cheques were issued on that same day for those amounts.

Argument

Counsel for the Appellant submitted that legal costs incurred to collect a pension, to oppose a reduction or to ask for an increase of pension or alimony are deductible, in accordance with subparagraph 18( 1 )(«) of the Income Tax Act (the “Act”), which reads as follows:

18(1) In computing the income of a taxpayer from a business or property no deduction shall be made in respect of

(a) an outlay or expense except to the extent that it was made or incurred by the taxpayer for the purpose of gaining or producing income from the business or property;

He referred to decisions of this Court in Hasbani c. R., [1994] 1 C.T.C. 2810 (T.C.C.) and St-Laurent c. R. (1998), [1999] 1 C.T.C. 2478 (T.C.C.). He suggested that legal costs are now considered to be also deductible if they are incurred to claim an alimony pursuant to a divorce. Counsel for the Appellant referred in this regard to the decisions of this Court in Nissim v. R., [1998] 4 C.T.C. 2496 (T.C.C.) and Donald v. R. (1998), [1999] I C.T.C. 2025 (T.C.C.) and to a decision of the Supreme Court of Canada in Evans v. Minister of National Revenue (1960), 60 D.T.C. 1047 (S.C.C.). Counsel for the Appellant also submitted that legal costs and expert fees may have served at the same time to protect from a reduction of an alimony or its annulment and other incidences in a divorce proceeding and there is no reason why it should affect the right to deduct these costs. He did not submit in an alternative manner that there should be an apportionment of the expenses.

Counsel for the Respondent submitted that the expenses had been incurred not for the purpose of gaining or producing income from a property, but were made on account of capital and were therefore not deductible, pursuant to subparagraph 18( 1 )(£>) of the Act, which reads as follows:

18(1) In computing the income of a taxpayer from a business or property no deduction shall be made in respect of

(b) an outlay, loss or replacement of capital, a payment on account of capital or an allowance in respect of depreciation, obsolescence or depletion except as expressly permitted by this Part;

Counsel for the Respondent referred to the decision of the Supreme Court of Canada in Evans (supra), where it was found that the Appellant’s claim in regard to which the legal expenses were incurred was a claim to income and therefore these legal expenses were properly deductible as having been made on account of income.

Both counsel have referred to this decision. The excerpt quoted by counsel for the Appellant is at page 1050 and the one quoted by counsel for the Respondent, at page 1051. They read as follows:

(Page 1050)

The precise form in which the matter was submitted to the Court appears to me to be of no importance; the legal expenses paid by the appellant were expended by her for the purpose of obtaining payment of income; they were expenses of collecting income to which she was entitled but the payment of which she could not otherwise obtain. So viewed, it could scarcely be doubted that the expenses were properly deductible, in computing the appellant’s taxable income. This, in my opinion, is the right view of the matter and is not altered by the circumstance that it was mistakenly claimed by Mrs. Andersen that the appellant was not entitled to any income at all.

(page 1051)

In my opinion, in the circumstances of this case there are two relevant questions both of which must, on the admitted facts, be answered in the affirmative; (i) was the appellant’s claim in regard to which the expenses were incurred a claim to income to which she was entitled? (ii) were the legal expenses properly incurred in order to obtain payment of that income?...

Counsel for the Respondent referred to the decision of the Federal Court of Appeal in Canada (Attorney General) v. Sembinelli (1994), 94 D.T.C. 6636 (Fed. C.A.), where it has been found that legal expenses incurred in defending against an attack brought by a former husband to rescind a support order which she had previously obtained at the time of her divorce, were incurred on account of income. He also referred to my decision in Sembinelli v. R., [1993] 2 C.T.C. 2345 (T.C.C.), and to the following excerpt at page 2348:

I conclude that the legal expenses incurred by the Appellant “to prevent the right to receive that income being destroyed” (supra), were incurred for the purpose of gaining income from an existing income producing right and not for the purpose of acquiring an asset of an enduring nature nor to defend an item of fixed capital.

Counsel for the Respondent submitted that, contrary to the two preceding cases, the legal expenses incurred in the present appeal, have been incurred for the purpose of acquiring assets of an enduring nature.

Counsel for the Respondent also referred to the decision of the Federal Court Trial Division in R. v. Burgess (1981), 81 D.T.C. 5192 (Fed. T.D.), where it was found that a claim of alimony pursuant to a divorce was on account of capital because the right to this alimony has to be established where it did not have to be established pursuant to a separation from bed and board. He also referred to a decision of this Court in Filteau v. Minister of National Revenue (1990), 91 D.T.C. 509 (T.C.C.) that followed the reasoning in Burgess.

Both counsel have referred to the decision of this Court in Nissim (supra). Although in this case the expenses were incurred before the dissolution of marriage, Bowman J. discusses the matter of legal costs incurred for alimony pursuant to a divorce as decided in Burgess (supra). I quote this decision extensively because it has also the advantage of discussing the characteristics of payments made on account of income and of those made on account of capital:

1993, 1994 and 1995

The issue in these years is the deductibility of legal expenses. The amounts claimed were $3,983, $13,914.26 and $8,500 respectively.

The substantial question is whether the legal expenses were laid out for the purpose of gaining or producing income or were capital or, alternatively, were personal or living expenses.

All of the numerous court proceedings and all of her dealings with the several lawyers whose services she retained had as their predominant and overriding purpose the enforcement of the husband’s obligation to pay support for the children. I find as a fact that the husband failed to honour his obligation to pay support ordered by the court. Ultimately he began paying and the amounts were declared as income by the appellant and deducted by the husband. The purpose in my view of the incurring of the legal expenses was to force the husband to live up to his obligation to pay support for the two children. Thus, the expenses were incurred for the purpose of earning income in the form of maintenance payments which of course are taxable in the appellant’s hands under paragraph 56(1)(b) or (c) of the Income Tax Act.

The legal expenses in this case were incurred prior to the dissolution of the marriage and were designed to force the husband to honour his existing obligation to pay maintenance. On this basis, I think the case is governed by Evans rather than by Burgess.

Quite apart from that distinction, I would add that 1 think, notwithstanding the great respect that I have for the judgments of Cattanach J., that the distinction that he drew in 1981 may not accord with the social and economic realities of the world in 1998. We are all too familiar with the phenomenon of husbands who fail to live up to their obligations to their wives and children to pay maintenance. To deny to wives the right to deduct the cost of compelling husbands to pay their fair share of the cost of raising children and yet to tax the wives on such maintenance as they can get from the husbands seems to me to be contrary to both common sense and ordinary principles of fairness. Whatever validity there may be to the distinction between the cost of enforcing an existing right to income and establishing such a right I do not think that the courts should strain to find legalistic reasons to deny the deductibility of these very necessary expenses. It must be recognized that the law relating to revenue and capital expenditures has developed since the last century and distinctions that may have carried weight in 1898 may be less meaningful in 1998. In M.N.R. v. Algoma Central Railway, 68 D.T.C. 5096, the Supreme Court of Canada said at page 5097:

Parliament did not define the expressions “outlay ... of capital” or “payment on account of capital”. There being no statutory criterion, the application or non-application of these expressions to any particular expenditures must depend upon the facts of the particular case. We do not think that any single test applies in making that determination and agree with the view expressed, in a recent decision of the Privy Council, B.P. Australia Ltd. v. Commissioner of Taxation of the Commonwealth of Australia, (1966) A.C. 224, by Lord Pearce. In referring to the matter of determining whether an expenditure was of a capital or an income nature, he said, at p. 264:

The solution to the problem is not to be found by any

rigid test or description. It has to be derived from many aspects of the whole set of circumstances some of which may point in one direction, some in the other. One consideration may point so clearly that it dominates other and vaguer indications in the contrary direction. It is a common sense appreciation of all the guiding atures whi ist provide the ultimate answer. (Emphasis added)

Both counsel referred to the decision of this Court in Donald (supra), which followed the decision rendered in Nissim (supra).

Both counsel also referred to the decision of this Court in St-Laurent (supra), where it was found that legal fees amounting to $3,488.18, which the appellant incurred when she made a motion to vary the corollary relief in respect of support payments she was receiving from her former spouse, were deductible pursuant to subsection 18( 1 )(a) of the Act.

Counsel for the Respondent referred to Savard c. Ministre du Revenu national (1989), 90 D.T.C. 1478 (T.C.C.), and referred to an excerpt stating that a compensatory allowance is in the nature of a capital payment, at page 1480:

I feel that in light of the actual wording of article 459 of Civil Code of Québec, commentators and the Superior Court judgment I have to conclude that the compensatory allowance is not a payment made for the maintenance of an ex-spouse but one made to repay his contribution to enriching the patrimony of the spouse making the payments. It is a payment of a capital nature, and not income.

Conclusion

It appears to me that both counsel agree on the interpretation of the case law. Their disagreement is on the characterization of the expenses made by Ms. Vosko: whether they are on account of income or of capital.

There was no argument as to a mode of apportionment. The Minister allowed small amounts to be deducted respecting costs incurred for alimony without a real explanation as to the basis for the apportionment. But the apportionment is not where the dispute lies. On both parts, the legal argument was on the determination of the true purpose of the legal proceedings that went on. For Counsel for the Appellant it was predominantly on account of income, for Counsel for the Respondent, it was the reverse.

One consideration may point so clearly that it dominates other and vaguer considerations in the contrary direction. These words of Lord Pearce in B.P. Australia Ltd (supra), have long been accepted as clearly expressing the progression to be made in the analysis of the facts to determine the purpose of expenses.

Ms. Vosko stated that the expenses were all incurred for support purposes. Support may be granted by means of capital payment or income payment as can be seen by the text of subsection 15(2) of the Divorce Act:

Corollary Relief

15.(2) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring one spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of

(a) the other spouse;

(b) any or all children of the marriage; or

(c) the other spouse and any or all children of the marriage.

Mesures Accessoires

15.(2) Le tribunal compétent peut, sur demande des époux ou de l’un d’eux, rendre une ordonnance enjoignant à un époux de garantir ou de verser, ou de garantir et de verser, la prestation, sous forme de capital, de pension ou des deux, gu il estime raisonnable pour les aliments:

a) de l’autres époux;

b) des enfants à charge ou de l’un d’eux;

c) de l’autre époux et des enfants à charte ou de l’un deux. (Emphasis added)

The judgment rendered by Justice Marx, (referred to at paragraphs 11 and 12 of these Reasons), granted, at the Appellant’s request, (referred to at paragraph 10 of these Reasons) a lump sum payment for support. This support payment is in the nature of a capital payment.

The Appellant claimed $1,000,000 in compensatory allowance as reported in paragraph 7 of these Reasons. This claim is not a claim for support but a claim for the contribution of one spouse to the enrichment of the patrimony of the other spouse as I noted in my decision in Savard (supra). It is a capital amount.

The lump sum payment that the Appellant sought for in lieu of alimony (paragraphs 14 and 17 of these Reasons) is also of a capital nature.

In paragraph 6 of these Reasons, it can be seen that Mr. Mastromonaco had taken an action in divorce and had accepted to make all the alimony payments agreed between the parties at the time of separation. All these payments were of an income nature. However, Ms. Vosko was not satisfied with these payments and she wanted capital payments. It was the beginning and the object of the ensuing dispute. No one could argue that she was not entitled or that she could be faulted in trying to build up her own patrimony for her and her children. However, the Act makes a distinction between expenses made for the purpose of earning income from a property and payments made on account of capital and gives them a different fiscal treatment.

My analysis of the facts of this appeal is that the expenses incurred by the Appellant in the years under appeal have been incurred for the predominant purpose of acquiring a patrimony of her own. There were some claims concerning alimony payments but they were secondary and were mostly caused by the Appellant seeking large amounts of capital. The expenses were therefore in the nature of expenses made on account of capital and not on account of income.

The appeals are dismissed, with costs in favour of the Respondent.

Appeal dismissed.