Beaubier
T
.
C.J.:
This
appeal
pursuant
to
the
Informal
Procedure
was
heard
at
Regina,
Saskatchewan.
The
parties
filed
an
Agreed
Statement
of
Facts
which
reads:
The
Appellant
and
the
Respondent
for
the
purposes
of
the
within
appeal
hereby
agree
as
to
the
following
facts:
1.
The
Appellant
separated
from
his
spouse,
Armelle
Antoinette
Dergousoff
(“spouse”)
on
August
15,
1994;
2.
Pursuant
to
an
oral
agreement
between
the
Appellant
and
his
spouse,
the
Appellant
paid
his
spouse
the
sum
of
$3,000.00
per
month
for
the
support
and
maintenance
of
the
children
of
the
marriage
commencing
on
September
19,
1994;
3,
The
payments
made
by
the
Appellant
to
the
spouse
in
1994
are
not
an
issue
in
this
appeal;
4.
The
Appellant
and
his
spouse
entered
into
an
interim
agreement
(herein
the
“Agreement”)
dated
June
15,
1995;
5.
The
Agreement
states,
inter
alia,
that
the
Appellant
shall
pay
to
the
Wife
for
the
support
and
maintenance
of
the
children
of
the
marriage
the
sum
of
$750.00
per
month,
per
child
commencing
January
1,
1995
and
continuing
on
the
l
day
of
each
and
every
month
hereafter;
6.
The
children
of
the
marriage
are:
Bryn
Franklin
Albert
Dergousoff
Brielle
Tegan
Dergousoff
Jace
Keston
Frederick
Dergousoff;
and
Ty
Zander
Brent
Dergousoff
7.
By
order
of
the
Court
of
Queen’s
Bench,
Family
Law
Division,
Judicial
Centre
of
Yorkton,
dated
August
21,
1995,
the
Appellant
was
ordered
to
pay
to
his
spouse,
child
support
upon
the
following
terms:
And
it
is
further
ordered
and
adjudged
that
the
Petitioner
(Respondent
by
Counter-Petition)
shall
pay
to
the
Respondent
(Petitioner
by
Counter-Petition)
for
the
interim
support
and
maintenance
of
the
said
children
of
the
marriage
the
sum
of
$750.00
per
month,
per
child,
commencing
January
1,
1995
and
continuing
on
the
first
day
of
each
and
every
month
thereafter.
8.
Commencing
January
1,
1995
and
continuing
throughout
the
remainder
of
the
year,
the
Appellant
made
monthly
maintenance
payments
of
$3,000.00
per
month;
9.
The
Appellant
made
payments
in
respect
of
maintenance
totalling
$36,000.00
for
the
1995
taxation
year;
10.
The
Appellant
was
allowed
a
deduction
in
respect
of
maintenance
payments
made
during
the
1995
Taxation
year
in
the
amount
of
$18,000.00;
11.
The
appellant
was
allowed
a
deduction
in
respect
of
maintenance
payments
commencing
with
his
July
1,
1995
payment;
On
June
15,
1995
Brent
Dergousoff
(“Brent”)
signed,
and
on
July
12,
1995
his
then
wife
Armelle
Antoinette
Dergousoff
(“Armelle”)
signed
the
“Interim
Agreement”
described
in
paragraph
4,
above,
of
which
subparagraph
1
.(a)
stated:
1.
Until
the
parties
further
agree
or
until
an
order
of
a
Court
of
competent
jurisdiction:
(a)
The
Husband
shall
pay
to
the
Wife
for
the
support
and
maintenance
of
the
children
of
the
marriage
the
sum
of
$750.00
per
month,
per
child
commencing
January
1,
1995
and
continuing
on
the
1
day
of
each
and
every
month
thereafter.
The
order
described
in
paragraph
7
of
the
Agreement
Statement
of
Facts
followed
on
August
21,
1995.
The
Appellant
was
not
allowed
to
deduct
the
payments
of
$3,000
each
that
he
made
from
January
through
June
1,
1995.
The
Appellant
submitted
a
Book
of
Documents
(Exhibit
A-1)
which
contains
correspondence,
a
draft
agreement,
the
Interim
Agreement,
and
the
Court
Order
of
August
21,
1995.
This
Court
regards
the
Interim
Agreement
and
then
the
Court
Order
as
of
consequence
for
the
purposes
of
this
appeal.
There
are
two
reasons
for
this:
I.
The
parties
signed
the
Interim
Agreement
which
indicated
their
mutual
intent
insofar
as
they
could
agree
on
a
wording.
2.
The
Interim
Agreement
specifically
states
that
it
is:
1.
Until
the
parties
further
agree
or
until
an
Order
of
a
Court
of
competent
jurisdiction...
That
Order
occurred
on
August
21,
1995
and
by
their
Interim
Agreement
it
supersedes
all
of
the
preceding
agreements
between
them.
Both
the
husband
and
the
wife
were
represented
by
lawyers
in
the
proceedings
to
obtain
the
Interim
Agreement
and
the
Court
Order.
This
Court
has
no
doubt
that
the
words
of
both
were
drafted
carefully
with
the
individual
knowledge
of
both
parties
as
to
their
possible
consequences
one
way
or
the
other
and
that,
as
is
usual
in
such
cases,
those
words
represented
the
best
compromise
that
could
be
achieve
by
the
parties
and
their
lawyers.
It
is
noteworthy
that
both
the
Interim
Agreement
and
the
Court
Order
occurred
on
dates
that
were
followed
closely
by
visits
of
the
children
to
the
Appellant
or
by
payments.
The
words
of
the
Court
Order
are
that
the
Appellant
“shall
pay
to
the
Respondent
...
for
the
interim
support
and
maintenance
of
the
said
children
...
commencing
January
1,
1995
...
etc.”
“Shall”
refers
to
the
future,
which
is
after
August
21.
These
words
echo
those
in
the
Interim
Agreement
which
was
finally
signed
by
the
wife
on
July
12.
Subsection
60.1(3)
requires
that
“where
a
written
agreement
or
order
...
provides
that
an
amount
paid
before
that
time
...
is
to
be
considered
to
have
been
paid
and
received
thereunder...”.
Thus
the
subsection
requires
that
the
agreement
must
refer
to
past
payments
which
are
“to
be
considered
to
have
been
part
and
received
thereunder.”
The
intent
that
the
past
payments
of
January
1
through
June,
1995
are
to
be
considered
to
have
been
paid
and
received
under
the
Interim
Agreement
or
the
Order
is
not
apparent
on
the
face
of
either
document.
Rather,
the
reference
to
payments
“commencing
January
I,
1995
and
continuing”
etc.
is
in
the
nature
of
a
recital.
It
is
not
a
statement
that
they
are
considered
to
have
been
paid
and
received
under
the
Order
or,
on
July
12,
1995
under
the
Interim
Agreement.
It
is
well
known
that
matrimonial
disputes
are
among
the
most
acrimonious
of
all
proceedings.
In
many
cases
one
party
is
not
represented
by
a
lawyer.
It
is
for
this
reason
that
subsection
60.1(3)
of
the
Income
Tax
Act
is
specific.
The
intent
of
the
subsection
is
to
make
it
clear
to
both
parties
on
the
face
of
the
document
what
the
tax
consequences
are.
That
clarity
does
not
exist
in
this
case.
For
this
reason
the
appeal
is
dismissed.
Appeal
dismissed.
Email this Content