Master
McCallum:—The
petitioner
here
applies
by
notice
of
motion
for
a
“declaration
that
the
petitioner
has
paid
maintenance
for
the
support
of
the
respondent
in
the
amount
of
$1,100
per
month
from
May
1,
1986,
to
and
including
December
1,
1990,
pursuant
to
section
15
of
the
Divorce
Act,
1985."
Section
15
of
the
Divorce
Act
provides
the
court
with
the
authority
to
make
an
order
"requiring
one
spouse
to
secure
or
pay
.
.
.
such
lump
sum
or
periodic
sums
.
.
.
as
the
court
thinks
reasonable
for
the
support
of”.
That
section
does
not,
in
my
view,
empower
the
court
to
make
the
declaration
sought.
Rather
the
court
is
able
to
make
an
order
to
deal
with
maintenance
in
the
future.
Counsel
referred
me
to
a
decision
of
Mr.
Justice
Goodman
of
the
Manitoba
Queen's
Bench
in
Meltzer
v.
Meltzer
(1989),
22R.F.L.
(3d)
38.
In
that
decision
Goodman,
J.
on
July
26,
1989,
declared
that
amounts
paid
by
the
husband
to
the
wife
in
1986
and
1987
were
maintenance
payments
pursuant
to
subsection
60.1(3)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act").
Subsection
60.1(3)
of
the
Act
states:
(3)
Prior
payments.—For
the
purposes
of
this
section
and
section
60,
where
a
decree,
order
or
judgment
of
a
competent
tribunal
or
a
written
agreement
made
at
any
time
in
a
taxation
year
provides
that
an
amount
paid
before
that
time
and
in
the
year
or
the
immediately
preceding
taxation
year
is
to
be
considered
as
having
been
paid
and
received
pursuant
thereto,
the
following
rules
apply:
(a)
the
amount
shall
be
deemed
to
have
been
paid
pursuant
thereto;
and
(b)
the
person
who
made
the
payment
shall
be
deemed
to
have
been
separated
pursuant
to
a
divorce,
judicial
separation
or
written
separation
agreement
from
his
spouse
at
the
time
the
payment
was
made
and
through
the
remainder
of
the
year.
The
respondent
wife
in
this
case
has
apparently
been
served
with
the
petition
for
divorce
and
the
notice
of
motion
and
takes
no
position
on
the
application.
The
effect
of
the
order
would
be
to
impose
the
tax
burden
for
the
payments
upon
her
and
allow
the
husband
to
deduct
those
amounts
from
his
taxable
income.
On
the
authority
of
Meltzer
v.
Meltzer,
supra,
it
appears
to
me
that
the
Income
Tax
Act
contemplates
a
declaration
in
the
terms
sought
being
made
in
appropriate
circumstances.
I
am
satisfied
that
the
amounts
in
question
have
been
paid
and
that
they
were
intended
by
both
parties
to
be
paid
as
maintenance
for
the
respondent
wife.
In
the
circumstances
therefore
I
declare
that
the
amounts
paid
prior
to
December
10,
1990,
in
the
taxation
years
1990
and
1989
are
to
be
considered
as
having
been
paid
and
received
pursuant
to
an
order
of
the
court
for
maintenance.
This
matter
came
on
for
hearing
on
December
10,
1990,
and
this
order
ought
to
take
effect
as
of
December
10,
1990.
Motion
granted.
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