Dussault T.C.J.:
This appeal was heard in accordance with the informal procedure. It is an appeal from an assessment under section 160 of the Income Tax Act ("the Act”) the notice of which bears number 08995 and is dated December 15, 1995.
In making this assessment, the Minister of National Revenue (“the Minister”) made the assumptions of fact stated in subparagraphs 3(a) to (o) of the Reply to the Notice of Appeal, inter alia. Those subparagraphs read as follows:
[TRANSLATION]
(a) the appellant’s spouse, Mike Hacikyaner, had a tax liability of $21,067.49 from the years 1987 and 1990;
(b) on January 31, 1991, the appellant and her spouse signed a notarial deed to change their matrimonial regime from the partnership of acquests to separation as to property;
(c) the bulk of the acquests consists of the family residence situated at 546 Inverness, Town of Mount Royal (“the property”);
(d) the property was purchased by the appellant on September 30, 1986, for $206,000, but, according to the Civil Code provisions governing matrimonial regimes, her spouse had a right of claim equal to half of the net value of the property;
(e) on September 25, 1986, the appellant took out a $100,000 hypothec on the property and her spouse intervened as a guarantor;
(f) in paragraph 9 of the said deed dated January 31, 1991, the appellant’s spouse renounced all his rights, title and interest in the property in the appellant’s favour:
(g) this renunciation by the appellant’s spouse constitutes a transfer by (“the transferor”) to the appellant;
(h) the appellant and the transferor were spouses at all relevant times;
(i) the transferor and the appellant were living together and were not deal- ing with each other at arm’s length at the time of the transfer;
(j) at the time of the transfer the municipal assessment of the property was $300,000;
(k) on January 31, 199], the transferor transferred to the appellant a right of claim valued at $100,000 for which he received no consideration;
(1) the address of the transferor and the appellant on their returns of income for the 1990 and 1991 taxation years was the same, that is, the address of the property;
(m) the transferor and the appellant checked off “married” on their returns of income for the 1990 and 1991 taxation years;
(n) the appellant was unable to show that she was living apart from her spouse at the time of the transfer;
(o) the total of all the amounts that the transferor was required to pay in accordance with the Act during or in respect of the taxation year during which the property was transferred or during any other previous taxation year was $21,067.49.
Only Mike Hacikyaner, the appellant’s agent, testified for the appellant. The appellant herself was absent. At the start of the hearing, it was first established that the appellant and Mr. Hacikyaner had exempted themselves from the application of Bill 146, that is articles 462.1 to 462.13 of the Civil Code of Québec on family patrimony, by a notarial deed dated December 20, 1990. There was therefore no reason to consider the effect of Bill 146 for the purposes of the instant case.
Mr. Hacikyaner disputed the validity of subparagraphs 3(d), (e), (f), (g), (i), (k), (n) and (o) of the Reply to the Notice of Appeal.
The respondent’s agent contended that under the notarial deed dated January 28, 1991, and registered on January 31, 1991, Mr. Hacikyaner transferred a right of claim worth $100,000 to the appellant for no consider- ation, waiving in the appellant’s favour all his rights in the family residence situated at 546 Inverness in the Town of Mount Royal, Quebec.
As Mr. Hacikyaner had a tax liability that was asserted to be $21,067.49 from the years 1987 to 1990, the respondent’s agent contended that section 161 of the Act was applicable in the circumstances.
I would immediately mention, although this has no impact on the case, that according to the schedule entitled “Exhibit A” to the notice of assess- ment the tax liability would appear to relate to the years 1988 to 1991, not 1987 to 1990.
The respondent’s agent further contended that subsection 160(4), the effect of which is allegedly to neutralize the application of subsection 160(1) of the Act, could not apply in the circumstances since the transfer was not made pursuant to a written separation agreement and furthermore Mr. Hacikyaner was not living apart from the appellant as a result of the breakdown of their marriage at the time of the transfer.
On the first point, and although Mr. Hacikyaner appeared to dispute the application of subsection 160(1), it is difficult to establish exactly which points are in dispute.
First, he stated that the residence belonged to the appellant, that it had always belonged to her and that he himself had never guaranteed the hypothec mentioned. However, it is plainly established that the spouses were married under the regime of the partnership of acquests, that the residence was purchased by the appellant during the marriage and that it was not acquired by gift, legacy or succession.
In any case, it is important to point out here that article 491 of the Civil Code of Québec, as applicable to the 1991 taxation year, established that the property was presumed to constitute an acquest.
Mr. Hacikyaner then disputed the property assessment by filing a tax account for 1996, which showed an assessment of $244,500, although the municipal assessment declared in the contract of January 28, 1991, was $300,000.
Lastly, he filed a letter sent by his notary’s office expressing the opinion that the change in matrimonial regime from the partnership of acquests to separation as to property implies that there was partition and that it declared but did not convey ownership, as a result of which section 160 of the Act did not apply in the circumstances.
As to the second point respecting the written separation agreement and the cessation of cohabitation, Mr. Hacikyaner submitted a document dated December 15, 1990, signed by the appellant and himself, which reads as follows:
[TRANSLATION I
Consent between Murat Mike Hacikyaner and Hilda Tsoline Yeramiyan, We hereby declare that we are separating. Hilda T. Yeramiyan will reside at 546 Inverness, Mount Royal, and Murat M. Hacikyaner will live elsewhere. Hilda T. Yeramiyan will have custody of the children until further order.
It must be acknowledged here that no mention is made of any transfer of property or of any right in this regard.
Can the deed of January 28, 1991, be recognized as a logical continua- tion of, and in substance as forming part of, the agreement of December 15, 1990? I very much doubt it.
First, the deed of January 28, 1991, states that the parties were married under the regime of partnership of acquests and that they were now enter- ing into a marriage contract in accordance with article 470 of the Civil Code of Québec, changing their matrimonial regime to that of the separation as to property.®
The address given by the two parties to this deed is the same, 546 Inver- hess in the Town of Mount Royal. Furthermore, in clause 9 of the same deed, the two parties state that their principal residence is situated in that place.
Nowhere is it mentioned that the parties are living separate and apart or have even decided to live separately; in short, the deed says nothing more than that the parties are changing matrimonial regimes, and there is nothing to say that they are in fact separated.
The declarations by the parties in a deed like this — which by its very nature is authentic — must not be taken lightly.
What was the actual situation between Mr. Hacikyaner and the appellant on January 28, 1991, when they signed the notarial deed, which sets out the change of matrimonial regime and the partition of the partnership of ac- quests that existed between them until then?
Not only did Mr. Hacikyaner give 546 Inverness in the Town of Mount Royal as his place of residence in both notarial deeds, one dated December 20, 1990, and the other dated January 28, 1991, but he also gave that ad- dress in his returns of income for 1990 and 1991.
Although Mr. Hacikyaner said this fact was of little importance, I point out that he also indicated in those two returns of income that he was mar- ried, not separated.
Exhibit A-l, clause 1.
Ord. clause 2.
Moreover, the notice of appeal dated February 12, 1997, and signed by Mr. Hacikyaner as the appellant’s agent still shows the same address and, incidentally, the same telephone number as the one he gave at the time.
Mr. Hacikyaner explained in his testimony that he had left the family residence in November or December 1990 and was living at that time in an apartment in a building belonging to a friend at 1011 Jean-Talon Est in Montréal. In fact, he said, it was only a room in an apartment occupied by another family of four, a grandfather, a father and his two children.
On this point, I cannot overlook Mr. Hacikyaner’s hesitations in attempting to describe his family situation at the time.
I would also point out that Mr. Hacikyaner said he returned to the family residence occasionally, for instance twice a month, to visit his children and pick up mail addressed to him, but nothing more. He admitted, however, that on each occasion he spent the night there in the basement.
According to Mr. Hacikyaner, he said that he was still living at the family residence at 546 Inverness in the Town of Mount Royal merely as a way of showing an address of convenience so that he would not have to reveal the true nature of his relationship with the appellant within the Armenian community.
In light of the documentary evidence submitted and the statements by Mr. Hacikyaner contained therein, and in the absence of any additional evidence on this point, particularly from the appellant, I am not prepared to accept Mr. Hacikyaner’s explanations respecting the breakdown of his marriage as sufficient in the circumstances.
It seems to me that the appellant’s independent testimony was essential in the circumstances. As Mr. Hacikyaner did not even consider it appropriate to arrange for her to be present, the only inference I can draw from her failure to testify on such a crucial point is a negative one.
That being said, and in a nutshell, I do not believe the evidence adduced by Mr. Hacikyaner was sufficient to show on a balance of probabilities that the requirements set out in subsection 160(4) have been met, that is that the transfer occurred pursuant to a written separation agreement and that Mr. Hacikyaner was living apart from his spouse, the appellant, at the time, that is on January 28, 1991, as a result of the breakdown of their marriage.
Having regard to the evidence adduced, I find that subsection 160(4) does not apply in the circumstances.
What of subsection 160(1) of the Act? Here we need to go back to the notarial deed dated January 28, 1991. That deed, need it be said, was drafted in a negligent manner.
First it states that the spouses were married under the regime of partnerhip of acquests (clause 1), then it says that they wish to partition the com- munity (clause 3). In clause 6, it even states that the deed constitutes a final settlement between the parties concerning their community as to property for which they grant each other mutual discharge. What confusion!
The matrimonial regime of partnership of acquests is not the same as community as to property and the rules governing them are absolutely not the same. What a mix-up!
Apart from these errors, which are apparent on the face of the deed in question and which I will refrain from commenting on further, the intention the parties is clear. They wanted to change matrimonial regimes from partnership of acquests to separation as to property, by notarial deed, which in fact is permitted by the second paragraph of article 497 of the Civil Code of Québec.
What then is the purpose of this deed? Is it to partition or to waive the partitioning ng of the appellant’s acquests, that is the residence in the Town of
Mount Royal, since that is in fact the only property which the deed indi- cates is the subject of partition? The deed itself is entitled “Deed of Partition”.
Clause 3 attributes the ownership of the family residence at 546 Inver- ness in the Town of Mount Royal to the appellant in the following terms:
3. That the parties declare that they will partition the immoveable property which forms part of the community which existed between them in the following manner, namely:
That the Second Party the appellant shall become the owner of the following immoveable property, namely:
[There follows the description of the immoveable property in question. I
The appellant was already the titular owner of the property, which was a joint asset, but rather an acquest.
Furthermore, clause 9 of the same deed reads as follows:
For greater certainty hereof the First Party [Mr. Hacikyaner] transfers all his rights, title and interest in property described herein under the heading description unto the Second Party.
The fact that the terms of the deed are worded this way leads me to believe that what we are dealing with here is a simple renunciation by Mr. Hacikyaner of any partition of the appellant’s acquests, which consisted solely of the family residence.
Furthermore, I would point out that the first paragraph of article 502 of the Civil Code of Québec (as it applied in 1991) provides as follows: “If either spouse renounces partition, the share of the other’s acquests to which he would have been entitled remains vested in the other.”
To claim that the deed effects a partition of acquests would mean that Mr. Hacikyaner first agreed to partition the appellant’s acquest, that he acquired his share, and that he then transferred it back to the appellant, which seems to me fairly convoluted legal reasoning.
In any case, the legal effect is the same and, at the time the deed was signed, undoubtedly constituted a transfer by Mr. Hacikyaner of his rights in the immoveable property, which, in view of the definition of the word “property” in subsection 248(1) of the Act, constitutes a transfer of property for the purposes of subsection 160(1) of the Act.
The word “property” is defined as including, inter alia, “a right of any kind whatever”.
As no evidence of any kind whatever was adduced showing that Mr. Hacikyaner’s rights in the residence at 546 Inverness had a value less than $100,000, the appellant’s assessment for a lesser amount representing Mr. Hacikyaner’s tax liability for the years prior to the year of the transfer and for the year of the transfer, 1991, is valid.
Accordingly, I must dismiss the appeal.
Appeal dismissed.
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