M
J
Bonner:—This
is
an
appeal
from
an
assessment
of
income
tax
for
the
1975
taxation
year,
which
assessment
was
made
on
the
basis
that
the
appellant
was
not
entitled
to
deduct
the
sum
of
$11,000
under
the
provisions
of
paragraph
60(b)
of
the
Income
Tax
Act.
The
appellant
and
his
wife,
recognizing
that
their
marriage
had
broken
down,
separated
on
July
31,1975.
They
had
previously
lived
in
Timmins,
Ontario.
The
appellant
then
departed
for
six
weeks
to
travel
abroad.
On
his
return
to
Timmins
the
appellant
and
his
wife
discussed
the
situation
in
which
they
found
themselves.
For
reasons
related
to
his
wife’s
state
of
mind,
the
appellant,
without
the
assistance
of
a
lawyer,
prepared
the
document
upon
which
he
relied
at
the
hearing
of
this
appeal
as
a
written
separation
agreement.
That
document
(Exhibit
A-1)
reads
as
follows:
AGREEMENT
1)
For
personal
reasons,
I
have
decided
to
separate
from
my
wife
Diana
Kapel,
and
I
wish
to
acknowledge
that
Mrs
Diana
Kapel
has
always
been
an
examplary
wife
and
mother.
2)
I
hereby
agree
to
provide
Mrs
Diana
Kapel
with
the
amount
of
$11,000.00
as
separation
allowance
for
the
remainder
of
1975.
3)
For
the
subsequent
years,
I
agree
to
pay
Mrs
Diana
Kapel
the
amount
of
$5,000.00
as
separation
allowance
each
year,
provided
that:
A)
I
keep
working
at
Korman’s
Dairy
Limited
at
a
salary
at
least
to
the
one
I
earn
at
present.
B)
Mrs
Diana
Kapel
maintain
and
provides
(sic)
for
our
daughter,
Claudine
Kapel.
4)
Should
any
of
the
above
conditions
be
changed,
this
agreement
will
become
null
and
void,
and
a
new
agreement
will
have
to
be
reached
taking
into
consideration
the
new
circumstances.
5)
Should
I
predecease
Mrs
Diana
Kapel,
this
agreement
will
be
automatically
cancelled,
and
in
no
time
will
my
estate
be
bound
by
this
agreement.
6)
This
agreement
will
be
considered
legal
unless
the
Court
of
Law
decides
otherwise.
Signed
in
Timmins,
the
first
day
of
October
1975.
(signed)
Daniel
Kapel
It
will
be
observed
that
Exhibit
A-1
was
signed
by
the
appellant
alone.
The
signed
original
of
the
document
was
given
by
the
appellant
to
his
wife,
who
immediately
departed
for
Toronto
with
her
daughter.
The
$11,000
sum
referred
to
in
paragraph
2
of
Exhibit
A-1
was
provided
as
follows:
a)
the
appellant
left
$5,000
in
the
joint
bank
account
held
in
the
names
of
himself
and
his
wife
which
amount
Mrs
Kapel
thereafter
transferred
to
her
account
in
Toronto,
b)
the
appellant
paid
$3,000
in
cash
to
Mrs
Kapel
in
1975,
and
c)
the
appellant
later
sent
Mrs
Kapel
a
cheque
for
a
further
$3,000.
The
evidence
establishes
that
Mrs
Kapel
reported
the
$11,000
as
income
and
ultimately
the
respondent
assessed
her
on
the
basis
that
it
was
not
to
be
included
in
computing
her
income.
Counsel
for
the
appellant
argued
that
the
promises
made
in
Exhibit
A-1
were
legally
binding
on
the
appellant
and
that
the
appellant’s
wife
who,
as
the
evidence
established,
asked
for
Exhibit
A-1
accepted
the
promises
made
by
her
husband
in
the
document
by
her
action
in
endorsing
the
$3,000
cheque.
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,
[1976]
CTC
52;
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.
In
view
of
this
conclusion
it
is
unnecessary
to
consider
other
arguments
advanced.
However,
I
will
observe
that
one
of
the
further
difficulties
which
lay
in
the
appellant’s
way
was
the
failure
of
Mrs
Kapel
to
agree
in
writing
to
live
separate
and
apart
from
her
husband.
The
appeal
must
therefore
be
dismissed.
Appeal
dismissed.
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