Mcarthur
J.T.C.C.:—
This
appeal
was
heard
in
London,
Ontario,
on
June
17,
1994,
in
accordance
with
the
informal
procedure
of
this
Court
relating
to
the
appellant’s
1988
and
1989
taxation
years.
The
issue
is
whether
the
amounts
of
$10,800
and
$10,200
are
deductible
by
the
appellant
in
computing
his
income
for
the
taxation
years
1988
and
1989
respectively.
The
following
facts
were
not
in
dispute.
The
appellant
and
his
former
wife
Heather
McCarthy
separated
and
were
living
apart
since
September
1986.
The
appellant
was
employed
with
the
London
Board
of
Education.
The
appellant
paid
in
monthly
instalments,
$10,800
in
1988
and
$10,200
in
1989
towards
child
and
spousal
support.
A
petition
for
divorce
was
filed
by
the
appellant
in
the
Supreme
Court
of
Ontario
on
August
11,
1988
and
an
answer
and
counter
petition
filed
on
behalf
of
Heather
McCarthy
on
November
14,
1988.
Her
poor
mental
health
resulted
in
several
postponements
of
the
divorce
proceedings
and
delays
in
arriving
at
maintenance
and
alimony
amounts.
The
appellant’s
petition
for
divorce
provides
under
#33,
paragraph
2(a):
2.
Support
(a)
The
petitioner
is
prepared
to
pay
support
for
the
benefit
of
the
children
of
the
marriage
in
an
amount
commensurate
with
the
needs
of
the
children,
his
ability
to
pay
and
the
joint
legal
obligation
that
the
respondent
has
to
contribute
toward
child
support.
His
wife's
answer
and
counter
petition
claim
support
for
herself
and
two
children
of
the
marriage.
In
an
offer
to
settle
dated
March
7,
1989,
the
appellant
agreed,
inter
alia,
to
pay
$300
per
month,
each,
for
the
support
of
two
children.
The
appellant
established,
through
his
own
testimony
and
the
testimony
of
his
divorce
lawyer
and
that
of
the
lawyer
who
had
acted
for
his
wife
during
the
divorce
proceedings,
that,
through
no
fault
of
his
own,he
was
unable
to
obtain
a
written
agreement
on
Court
Order.
Analysis
Paragraphs
60(b)
and
(c)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act")
provide,
in
part,
that
for
certain
payments
in
the
nature
of
alimony
or
maintenance
to
be
deductible
certain
conditions
are
to
be
fulfilled
—
this
includes
that
the
payments
must
be
made
either
(a)
pursuant
to
a
decree
order
or
judgment
of
a
competent
tribunal
or
(b)
pursuant
to
a
written
agreement.
The
Act
and
the
relevant
case
law
is
clear.
For
the
appellant’s
payments
to
be
deductible,
they
had
to
have
been
made
pursuant
to
court
order
or
a
written
agreement.
In
the
present
case
the
payments
made
by
the
appellant
were
not
made
pursuant
to
a
decree
order
or
judgment
of
a
competent
tribunal,
or
pursuant
to
a
written
agreement.
While
the
appellant
is
to
be
commended
for
conscientiously
making
payments
for
the
well-being
of
his
wife
and
children,
the
requirements
of
the
Act
under
paragraphs
60(b)
and
(c)
are
crystal
clear.
Unfortunately
for
the
appellant,
the
fact
that
he
took
all
reasonable
efforts
to
satisfy
the
requirements
does
not
assist
him.
For
these
reasons,
the
appeal
is
dismissed.
Appeal
dismissed.
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