Collier,
J:—In
the
calculation
of
his
income
tax
for
1971,
the
plaintiff
sought
to
deduct
from
income
the
sum
of
$4,000*
as
alimony
payments
made
to
his
former
wife.
The
plaintiff
contends
he
is
entitled
to
do
so
the
provisions
of
paragraph
11(1)(1)
or
paragraph
11(1)(la)
of
the
Income
Tax
Actt.
I
set
out
the
two
paragraphs:
11.
(I)
an
amount
paid
by
the
taxpayer
in
the
year
pursuant
to
a
written
agree-
section
12,
the
following
amounts
may
be
deducted
in
computing
the
income
of
a
taxpayer
for
a
taxation
year:
(I)
an
amount
paid
by
the
taxpayer
In
the
year
pursuant
to
a
written
agreement,
as
alimony
or
other
allowance
payable
on
a
periodic
basis
for
the
maintenance
of
the
recipient
thereof,
children
of
the
marriage,
or
both
the
recipient
and
children
of
the
marriage,
if
he
was
living
apart
from,
and
was
separated
pursuant
to
a
divorce,
judicial
separation
or
written
separation
agreement
from,
his
spouse
or
former
spouse
to
whom
he
was
required
to
make
the
payment
at
the
time
the
payment
was
made
and
throughout
the
remainder
of
the
year;
(la)
an
amount
paid
by
the
taxpayer
in
the
year,
pursuant
to
an
order
of
a
competent
tribunal,
as
an
allowance
payable
on
a
periodic
basis
for
the
maintenance
of
the
recipient
thereof,
children
of
the
marriage,
or
both
the
recipient
and
children
of
the
marriage,
if
he
was
living
apart
from
his
spouse
to
whom
he
was
required
to
make
the
payment
at
the
time
the
payment
was
made
and
throughout
the
remainder
of
the
year;
The
Minister
of
National
Revenue
disallowed
the
deduction.
He
was
upheld
by
the
Tax
Review
Board.
This
appeal
followed.
As
always,
the
facts
are
paramount.
The
plaintiff
and
his
wife
were
married
in
1949.
In
1967
or
1968
differences
arose.
The
plaintiff
left
the
matrimonial
home.
He
and
his
wife
did
not
thereafter
live
together
at
any
time
relevant
to
this
appeal.
Over
a
lengthy
period
of
time
husband
and
wife
tried
to
reach
some
agreement
on
financial,
property
and
other
matters.
At
first
these
dealings
and
negotiations
were
carried
out
through
lawyers.
There
were
many
draft
written
agreements
passed
back
and
forth.
None
were
satisfactory,
so
nothing
was
agreed
or
signed.
For
a
time
attempts
were
made,
particularly
on
the
part
of
the
plaintiff,
directly
between
husband
and
wife,
to
resolve
matters.
This
much
is
clear.
The
parties
were
at
all
times
separated
and
living
apart.
They
were
unable
to
agree
on
the
usual
matters
following
that
mutual
decision.
The
plaintiff,
at
one
stage,
threatened
to
move
back
into
the
matrimonial
home.
Eventually
the
wife,
after
pressure
of
various
kinds
by
the
plaintiff,
brought
divorce
proceedings.
The
petition
was
filed
in
the
Supreme
Court
of
Ontario
on
April
19,
1971.
In
the
claim
for
relief,
the
wife
asked
for
interim
alimony
of
$1050
per
month
for
herself,
and
$200
interim
maintenance
for
the
only
child
of
the
marriage.
On
April
20,
1971,
pursuant
to
the
Rules
of
Court,
a
motion
was
launched
seeking,
among
other
things,
$1000
per
month
interim
alimony
for
the
wife
.
.
.
from
the
date
of
the
service
of
the
PetItIon
.
.
.
to
the
trial
.
.
.
On
June
4,
1971
the
plaintiff,
in
response
to
the
motion,
filed
a
Notice
of
Submission
in
which
he
.
.
.
Submits
to
pay
Interim
collorary
rellef
In
the
sum
of
$800.00
monthly
for
the
support
and
maintenance
of
the
Petitioner
and
the
Infant
son
of
the
marriage.
The
Notice
of
Submission
was
apparently
given
pursuant
to
Rule
3886
of
the
Rules
of
Practice.
I
set
out
the
relevant
portions:
386.
(1)
In
rules
386
to
388
interim
alimony
shall
be
deemed
In
a
matrimonial
cause
to
Include
monies
payable
by
way
of
alimony
or
an
alimentary
pension
by
either
spouse
for
the
maintenance
of
the
other
and
moneys
payable
for
the
maintenance
of
the
children
of
the
marriage
pending
the
hearing
and
determination
of
the
petition.
(2)
In
an
alimony
action
or
In
a
matrimonial
cause,
the
defendant
may,
at
any
time
before
being
served
with
notice
of
motion
for
interim
alimony,
give
notice
In
writing
that
he
submits
to
pay
the
interim
alimony
and
interim
disbursements,
as
demanded
by
the
plaintiff
in
the
endorsement
of
the
writ
or
in
the
petition
for
divorce,
and
In
that
case
no
motion
for
Interim
alimony
shall
be
made
until
there
has
been
a
default
in
payment,
and
in
case
of
default,
affidavits
belng
filed
verifying
the
endorsement
and
notice
and
the
default,
an
order
for
payment
of
the
sum
demanded
shall
be
Issued
on
praecipe.
(Amended,
O.Reg.
285/71,
s
10.)
(3)
The
defendant
may
give
notice
in
writing
that
he
submits
to
pay
such
less
sum
as
he
deems
proper
and
names
In
his
notice.
(4)
Where
a
notice.
has
been
so
served
and
the
plaintiff
accepts
the
amount
therein
mentioned
as
sufficient,
the
defendant
shall
pay
thereafter
the
sum
so
offered
as
Interim
alimony,
and
no
order
for
interim
alImony
shall
be
made
until
there
has
been
default
In
payment.
(5)
Where
a
notice
has
been
so
served,
the
plaintiff’s
Interim
disbursements
may
be
taxed
without
order.
(6).
Where
the
plaintiff
does
not
accept
the
amount
offered
and
‘upon
motion
for
interim
alimony
It
Is
found
that
the
sum
so
offered
is
reasonable,
and
the
defendant
pays
to
the
plaintiff
the
sum
so
offered,
no
order
for
interim
alimony
shall
be
made
until
there
has
been
default
In
payment..
The
wife
was
paid
by
the
plaintiff,
pursuant
to
this
procedure,
five
payments
of
$800
each
covering
the
months
of
June
through
October
1971.
These
are
the
amounts
which
the
plaintiff
says
he
is
entitled
to
deduct
in
the
calculation
of
his
tax
for
1971.
The
wife
accepted
those
amounts.
The
only
evidence
before
me
as
to
any
qualification
in
respect
of
her
acceptance
is
found
in
a
letter
between
solicitors
(Exhibit
5
to
the
Agreed
Statement
of
Facts).
I
set
out
the
letter:
EXHIBIT
5
July
22nd,
1971
Siegal,
Fogler,
Horkins
&
Greenglass,
Barristers
and
Solicitors,
372
Bay
Street,
Toronto,
Ontario
Attention:
Harold
H.
Siegal,
Esq.
Q.C.
Re:
Horkins
and
Horkins
Dear
Mr.
Siegal:
Further
to
our
discussion
at
the
conclusion
of
the
cross-examination
on
July
21st,
1971,
I
wish
to
advise
you
that
we
have
no
record
of
Mrs.
Horkins
having
received
a
cheque
from
your
client
in
the
amount
of
$800.00
for
the
month
of
July.
I
have
attempted
to
contact
Mrs.
Horkins
by
telephone
but
there
was
no
answer.
It
Is
possible
that
your
client
may
have
forwarded
a
cheque
in
the
amount
of
$800.00
directly
to
her.
In
the
event
that
Mr.
Horkins
has
not
forwarded
a
cheque
In
the
amount
of
$800.00
to
Mrs.
Horkins
for
the
month
of
July,
we
would
ask
that
he
do
so
in
accordance
with
our
previous
discussion
and
understanding
that
our
acceptance
of
any
such
payment
is
entirely
without
prejudice
to
any
rights
we
have
to
pursue
her
application
for
interlm
alimony.
Yours
very
truly,
KIMBER,
DUBIN,
MORPHY
&
BRUNNER
er:
The
wife
in
fact
did
not
at
any
time
pursue
her
application
for
interim
alimony.
In
my
view,
by
her
actions
she
accepted
.
.
.
the
amount
therein
mentioned
.
.
.
[the
$800
per
month
In
the
notice
of
submission]
.
.
.
as
sufficient
.
.
.
.
(See
Rule
386(4)
above.)
The
divorce
action
was
heard
in
October
1971.
A
decree
absolute
was
pronounced
on
November
15,
1971.
Corollary
relief
of
$1000
per
month
commencing
that
date
was
adjudged.
I
revert
now
to
paragraph
11
(1)(l)
of
the
Income
Tax
Act.
The
plaintiff
contends
that
the
offer
of
$800
per
month,
the
acceptance
by
the
wife,
and
the
payments
by
him
(all
pursuant
to
the
procedure
set
out
in
Rule
386)
amount
to
an
“order
of
a
competent
tribunal”
or
is
equivalent
to
such
an
order.
The
same
submission
is
put
forward
in
respect
of
deductibility
under
paragraph
11(1)(la).
I
have
every
sympathy
for
the
plaintiff,
but
I
am
unable
to
construe
“order”
in
the
paragraphs
in
question
as
including
what
went
on
here.
Without
attempting
an
all-encompassing
interpretation,
I
think
“order”
contemplates
at
least
some
concrete
pronouncement,
decree,
or
direction
of
the
tribunal
in
question.
Rule
386,
as
I
see
it,
provides
for
an
order
in
three
situations
only
and
at
three
particular
points
in
time:
(a)
where
default
in
payment
is
made
after
the
defendant
has
agreed
to
pay
the
interim
alimony
demanded
in
the
petition.
In
such
a
case,
a
motion
for
interim
alimony
setting
out
the
default,
is
not
even
necessary.
(Rule
386(2).)
(b)
where
default
in
payment
is
made
after
the
defendant
has
offered
and
the
plaintiff
has
accepted
a
lesser
sum
than
demanded
in
a
motion
for
interim
alimony.
(Rule
386(4).)
(c)
where
default
in
payment
is
made
after
the
hearing
of
a
motion
for
interim
alimony
where
the
plaintiff
has
refused
to
accept
the
amount
offered
by
the
defendant
but
that
amount
has
been
found
to
be
reasonable.
(Rule
386(6).)
None
of
those
situations
were,
to
my
mind,
present
in
this
case.
I
can
see
a
somewhat
incongruous
situation
arising.
When
default
occurs
in
any
one
of
the
three
circumstances
above
outlined,
an
“order”
can
be
obtained
against
the
defaulter.
If
he
then
pays
pursuant
to
the
order,
he
could
claim
the
benefit
of
paragraphs
11
(1)(l)
or
11
(1)(la),
whichever
was
applicable,
provided
he
fell,
as
well,
within
the
other
requirements
of
those
paragraphs.
On
the
other
hand,
the
defendant
who
dutifully
pays
the
amounts
in
the
three
situations
outlined,
cannot
claim
the
payments
as
deductions,
because
there
is
no
“order”.
Incongruity
or
unfairness
in
particular
cases
cannot,
unfortunately,
change
the
plain
words
of
the
statute.
As
already
indicated,
I
must
reject
the
plaintiff’s
submission
on
this
point.
That
disposes
completely
of
the
plaintiff’s
position
in
respect
of
deductibility
under
paragraph
11(1)(la).
A
further
contention
was
advanced
in
respect
of
11(1)(l).
It
was
submitted
the
payments
were
made
pursuant
to
an
agreement
in
writing
while
the
plaintiff
was
living
apart
from
his
wife
and
while
he
was
separated
from
her
pursuant
to
a
written
separation
agreement.
Counsel
urged
that
the
following
facts
when
put
all
together
amounted
to
a
written
separation
agreement
pursuant
to
which
the
plaintiff
was
separated
and
living
apart,
and
the
payments
in
question
were
made
pursuant
to
a
written
agreement:
(a)
husband
and
wife
had
orally
agreed
to
live
separate
and
apart.
(b)
written
draft
separation
agreements
passed
back
and
forth
between
their
representatives,
as
well
as
correspondence
on
the
same
matters
directly
between
the
parties*.
Those
documents
and
letters,
it
is
said,
confirmed
in
writing
the
separation
and
the
living
apart.
(c)
the
acceptance
of
the
alimony
cheques
by
the
wife
for
the
months
in
question,
and
the
general
reference
to
the
payments
in
the
letter
earlier
set
out
(Exhibit
5
to
the
Agreed
Statement
of
Facts).
In
my
opinion,
no
matter
how
hard
one
strains
to
find
in
favour
of
the
plaintiff,
those
facts
cannot
be
held
to
be
an
agreement
in
writing
or
a
written
separation
agreement
(or
both).
They
do
not,
as
I
see
it,
meet
the
requirements
of
11(1)(I).
The
appeal
must
therefore
be
dismissed.
The
assessment
by
the
Minister
and
the
decision
of
the
Tax
Review
Board
is
affirmed.
The
defendant
is
entitled
to
her
costs.
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