Charles Jacques Gauvin v. Minister of National Revenue, [1981] CTC 2035, 81 DTC 46

D E Taylor [TRANSLATION]:—This appeal, which was heard in the city of Montreal, Quebec on June 9, 1980, was brought following assessments in which the Minister of National Revenue refused deductions claimed by the appellant as alimony payments amounting to $8,400, a sum paid in each of the 1976 and 1977 taxation years.

The appellant stated the following in his amended notice of appeal:

1. Early in 1967, the appellant agreed with his wife, Dame Alice Ho, to a de facto separation;

2. On May 19, 1967, the spouses entered into a written agreement whereby alimony of $500 per month would be paid, starting June 1, 1967, the whole as appears in Exhibit P-1;

5. During 1976 and 1977, the appellant lived separately from Dame Alice Ho;

In his reply to the notice of appeal, the respondent stated:

During the years on appeal, the appellant never paid any amount or amounts to Dame Alice Ho as alimony pursuant to a decree, order or judgment of a competent tribunal or pursuant to a written agreement between them.

... the agreement signed on May 19, 1967 does not meet the requirements of paragraph 60(b), since the appellant, having lived with Dame Alice Ho after the said agreement, cannot claim to have lived apart from Dame Alice Ho pursuant to this agreement;

Depositions

The appellant himself submitted a copy of the agreement dated May 19, 1967 (Exhibit A-1), which in its entirety reads as follows:

CANADA

PROVINCE OF QUEBEC

DISTRICT OF QUEBEC

AGREEMENT

I the undersigned JACQUES GAUVIN, mining engineer, domiciled at Ste-Foy, province of Quebec, declare that I have decided to go and live in the United States, where I have found employment. I prefer that my wife and children continue to live in Canada.

I undertake to pay to my wife, for herself and the children, alimony of $500 per month, starting June 1,1967, payable in two instalments on the fifth and twentieth of each month, at the Bank Canadian National, 3066, chemin St-Louis, Ste-Foy, account No 408.

This alimony may be revised and increased after June 1, 1968 in view of my salary increases and the needs of my wife and children.

SIGNED in duplicate at Quebec City on May 19, 1967.
WITNESS:	(signed) Jacques Gauvin
	Jacques Guavin
(signed) Jean L . . .
I accept the above offer.
	(signed) Alice Gauvin
	Mrs Jacques Gauvin
WITNESS:
(signed) Jean L . . .

The taxpayer and Dame Alice Ho (witness for the respondent) agreed that they lived together after this agreement, but did not live together during the years on appeal.

Counsel for the appellant proposed that Exhibit A-1 constitute a document strictly speaking, in accordance with paragraph 60(b) of the Income Tax Act; and that cohabitation with Dame Alice Ho after 1967 did not terminate that agreement.

On the matter of the cohabitation and reconciliation, counsel for the respondent referred to the following cases:

Bowers v Bowers (1915), 25 DLR 838;

Fraser v Capital Trust Corp Ltd, [1938] 2 DLR 732;

Dame Germain v Germain, [1965] QB 770;

Jourdain v Dame Bradette, [1968] QB 604;

Nicol v Nicol (1886), 31 Ch D 524;

Re Wiggens, [1952] OWN 66.

Conclusions

After reading the above authorities, I am convinced that, for the purpose of paragraph 60(b) of the Income Tax Act, such a resumption of cohabitation terminates a written agreement if, in fact, there is an agreement which applies. In the circumstances, the Board does not need to determine whether Exhibit A-1 constitutes a true written agreement. The agreement ended before the years on appeal.

The appeal is dismissed.

Appeal dismissed.