Couture^
C.J.T.C.
[Translation]:—The
appellant
is
appealing
an
assessment
issued
by
the
respondent
for
the
1987
taxation
year
on
the
ground
that
professional
fees
of
$6,590.38
which
she
paid
in
that
year
were
deductible
in
computing
her
income.
The
appellant
was
represented
by
an
agent
and
the
facts,
which
are
relatively
straightforward,
are
admitted
by
her
and
are
summarized
in
the
reply
to
the
notice
of
appeal
as
follows:
(a)
the
appellants
husband
filed
a
divorce
petition
in
the
Superior
Court
(case
No.
500-12-133852-842)
in
which
he
asked
the
Court
to:
(i)
render
a
divorce
decree;
(ii)
cancel
the
alimentary
pension
that
he
was
paying
his
wife;
(b)
the
appellant
filed
a
counterclaim
in
which
she
asked
the
Court
to:
(i)
render
a
divorce
decree
in
her
favour;
(ii)
order
her
husband
to
pay
her
support
in
the
amount
of
$250
per
week
and
an
amount
of
$25,000
as
a
lump
sum
alimentary
payment
and
compensatory
allowance;
(c)
in
a
decree
rendered
on
December
30,
1986,
the
Superior
Court
granted
the
counterclaim
and
awarded
a
lump
sum
payment
of
$40,000
to
the
appellant;
(d)
the
Court
of
Appeal
(case
No.
500-09-000060-871)
varied
this
decree
only
with
respect
to
the
method
in
which
this
lump
sum
payment
was
to
be
made;
(e)
during
1986
the
appellant
spent
$6,590.38
as
legal
fees,
in
order
to:
(i)
obtain
a
divorce
decree
in
her
favour;
(ii)
prevent
cancellation
of
the
alimentary
pension;
(iii)
obtain
a
decree
ordering
her
former
husband
to
pay
support,
a
lump
sum
and
a
compensatory
allowance;
(f)
during
the
1987
taxation
year,
the
sum
of
$6,590.38
that
was
spent
by
the
appellant
for
legal
fees
was
not
used
to
obtain
income
from
a
business
or
property.
The
evidence
also
revealed
that
the
appellant
had
been
legally
separated
from
her
husband
since
1981,
and
that
in
consequence
of
this
separation
she
was
receiving
an
alimentary
pension
from
him,
for
herself
and
her
children
of
about
$350
a
week.
Citing
paragraph
12
of
Interpretation
Bulletin
IT-99R3,
issued
by
the
respondent
on
November
22,
1985,
the
appellant
submitted
that
her
claim
should
be
allowed.
These
provisions
read:
12.
In
computing
the
income
of
an
individual,
a
deduction
is
allowed
for
legal
costs
incurred
by
the
individual
in
enforcing
(a)
payment
of
alimony
or
other
maintenance
allowance
that
is
included
in
the
individual’s
income
under
paragraph
56(1)(b)
(i.e.,
where
the
right
thereto
had
been
established
by
written
agreement
or
by
court
order),
or
(b)
a
court
order
for
a
maintenance
allowance
that
is
included
in
the
individual's
income
pursuant
to
paragraph
56(1)(c)
or
(c.1).
The
only
provision
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the"Act")
that
permits
such
a
deduction
is
paragraph
18(1)(a),
which
reads:
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.
The
pension
that
she
was
receiving
for
herself
and
her
children
resulted
solely
from
the
existence
of
the
marriage
between
herself
and
her
husband,
and
as
long
as
this
marriage
was
not
dissolved
by
a
decree
divorcing
them,
her
husband
was
legally
obliged
to
pay
her
this
allowance.
This
obligation
results
from
Article
633
of
the
Quebec
Civil
Code,
which
provides
that:
Spouses,
and
relatives
in
the
direct
line,
owe
each
other
support.
(The
word
"aliments"
is
translated
in
the
English
version
by
the
word
"support".)
In
the
event
of
a
divorce
between
the
spouses
this
legal
obligation
terminates,
because
the
marriage
has
been
dissolved.
The
situation
of
the
couple
is
then
governed
by
the
provisions
of
the
Civil
Code
and
the
Divorce
Act,
R.S.C.
1985
(2d
Supp.),
c.
3.
Subsections
15(2)
and
(4)
of
this
Act
allow
the
judge
hearing
a
divorce
petition
to
grant
an
order
for
support
to
one
of
the
parties.
These
provisions
read:
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.
(4)
The
court
may
make
an
order
under
this
section
for
a
definite
or
indefinite
period
or
until
the
happening
of
a
specified
event
and
may
impose
such
other
terms,
considerations
or
restrictions
in
connection
therewith
as
it
thinks
fit
and
just.
In
a
decision
of
the
Federal
Court
of
Canada
Trial
Division,
in
the
appeal
of
The
Queen
v.
Dr.
Beverley
A.
Burgess,
[1982]
1
F.C.
849;
[1981]
C.T.C.
258;
81
D.T.C.
5192,
Cattanach,
J.
clearly
explains
the
distinction
between
the
rights
of
the
spouses
towards
one
another
during
legal
separation
and
their
rights
following
divorce.
At
261-62
(D.T.C.
5195-96;
F.C.
855),
he
states:
Divorce
differs
from
judicial
separation
and
any
form
of
separation
agreement.
Judicial
separation
is
nothing
more
than
enforcing
through
an
order
of
the
Court
an
arrangement
which
the
parties,
assuming
they
were
willing,
could
have
as
equally
well
effected
for
themselves.
A
right
to
alimony
provided
in
such
an
agreement
arises
by
virtue
of
that
contract
with
the
force
of
a
decree
if
by
judicial
separation.
Divorce
is
entirely
different.
It
destroys
the
whole
relationship.
As
a
consequence
of
this
change
in
status
the
courts
have
authority
to
decree
maintenance.
In
this
regard
Lord
Atkin
in
Hyman
v
Hyman,
[1929]
AC
601
said
at
628:
While
the
marriage
tie
exists
the
husband
is
under
a
legal
obligation
to
maintain
his
wife.
The
duty
can
be
enforced
by
the
wife,
who
can
pledge
his
credit
for
necessaries
as
an
agent
of
necessity,
if,
while
she
lives
apart
from
him
under
a
decree
for
separation,
he
fails
to
pay
the
alimony
ordered
by
the
Court.
But
the
duty
of
the
husband
is
also
a
public
obligation,
and
can
be
enforced
against
him
by
the
State
under
the
Vagrancy
Acts
and
under
the
Poor
Relief
Acts.
When
the
marriage
is
dissolved
the
duty
to
maintain
arising
out
of
the
marriage
tie
disappears.
In
the
absence
of
any
statutory
enactment
the
former
wife
would
be
left
without
any
provision
for
her
maintenance
other
than
recourse
to
the
poor
law
authorities.
In
my
opinion
the
statutory
powers
of
the
Court
to
which
I
have
referred
were
granted
partly
in
the
public
interest
to
provide
a
substitute
for
this
husband’s
duty
of
maintenance
and
to
prevent
the
wife
from
being
thrown
upon
the
public
for
support.
We
should
note
that
the
"alimony"
to
which
Cattanach,
J.
referred
in
the
decision
quoted
above
is
called
“alimentary
pension"
in
the
Civil
Code
of
Lower
Canada,
although
the
Code
acknowledges
the
distinction
between
support
paid
following
a
separation
and
that
paid
after
a
divorce.
Counsel
for
the
respondent
contended
that
the
professional
fees
paid
by
the
appellant
in
1987
were
not
incurred
to
ensure
the
payment
of
an
alimentary
pension
or
of
a
compensatory
allowance,
but
to
contest
the
divorce
petition
in
the
Quebec
Superior
Court
and
to
request
that
the
divorce
decree
be
granted
in
her
favour
and
also
that
the
Court
order
her
husband
to
provide
her
with
support
of
$250
a
week
and
the
amount
of
$25,000
as
a
lump
sum
alimentary
payment
and
as
a
compensatory
allowance.
Considering
the
evidence
and
precedents
to
which
I
have
referred,
I
do
not
hesitate
to
accept
the
position
of
counsel
for
the
respondent.
This
position
is
supported
by
the
facts,
because
the
professional
fees
that
the
appellant
paid
were
to
contest
her
husband's
divorce
petition
and
to
obtain
support,
since
the
alimentary
pension
that
he
had
paid
her
following
their
legal
separation
in
1981
was
ending.
She
was,
therefore,
establishing
a
right
to
this
support
and
not
acting
to
enforce
its
payment.
This
expense
was
therefore
not
incurred
in
order
to
earn
income
from
property
pursuant
to
the
requirements
of
paragraph
18(1)(a).
For
these
reasons,
the
appeal
is
dismissed.
Appeal
allowed.
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