Judge
K
A
Flanigan
(orally:
October
2,
1974):—This
is
an
appeal
by
Julien
André
Pezet
against
the
reassessment
of
the
Minister
of
National
Revenue
for
the
1971
taxation
year.
The
point
in
issue
is
whether
or
not
the
appellant
is
entitled
to
a
deduction
under
paragraph
11(1)(I)
of
the
pre-1972
Act
for
payments
made
in
each
of
the
months
of
the
1971
taxation
year.
The
appellant
and
his
spouse
separated
in
October
of
1970.
An
agreed
statement
of
facts
(Exhibit
A-1)
has
been
filed,
and
attached
thereto
is
an
unsigned
separation
agreement
of
February,
1971
and
a
subsequent
agreement
of
September
1971
which
was
executed.
It
is
also
admitted
that
the
amount
of
alimony
that
the
appellant
was
obligated
to
pay
was
$500
per
month,
being
$300
for
the
spouse
and
$100
for
each
of
the
two
children
of
the
marriage.
It
is
admitted
that
the
payments
were
made
from
the
beginning
of
1971
to
the
end
of
1971
on
a
periodic
basis
in
the
amounts
agreed
upon.
The
appellant
has
included
in
the
executed
separation
agreement
a
provision
that
for
the
purposes
of
the
Income
Tax
Act
it
is
acknowledged
by
the
parties
that
the
past
payments
are
to
be
in
conformity
with
the
provisions
of
paragraph
11(1)(l),
now
paragraph
60(b)
of
the
new
Act,
which
is
not
changed
in
substance.
The
wife
has
recognized
that
she
has
received
these
payments
for
this
purpose,
and
it
is
the
thrust
of
the
appellant’s
argument,
first,
that
the
word
“pursuant”
in
paragraph
11
(1)(l)
does
not
necessarily
mean
“following”
or
“subsequent
to”
the
execution
of
a
separation
agreement,
but,
by
dictionary
definition,
means
“in
conformity
with”
or
“in
conformity
to”
a
separation
agreement
signed
in
the
taxation
year.
All
aspects
of
paragraph
11
(1)(l)
have
been
complied
with,
and
the
Minister’s
only
objection
to
the
deduction
claimed
is
that
taxpayers
cannot
by
consent
alter
the
provisions
of
the
Act,
and
that
it
is
well
established
and
long
established
by
the
jurisprudence
that
such
payments
are
only
deductible
from
the
date
of
the
execution
of
the
agreement,
and
that
“pursuant
to
a
written
agreement”
means
that
the
spouse
making
the
payments
is
entitled
to
the
deduction
only
from
the
date
of
the
agreement
on.
lt
was
also
argued
by
the
respondent
that
this
is
a
deducting
section
and,
in
order
to
take
advantage
of
a
deduction
under
a
fiscal
statute
such
as
the
Income
Tax
Act,
the
person
seeking
the
deduction
must
bring
himself
or
herself
clearly
within
the
provisions
of
the
deducting
section;
and
that,
in
so
far
as
the
payments
made
from
January
to
August
are
concerned,
the
appellant
fails
to
do
so,
by
virtue
of
the
fact
that
the
agreement
was
not
signed
until
September
1,
1971.
It
is
also
argued,
and
it
is
quite
true,
that
to
allow
the
parties
to
a
separation
agreement
to
fix
retroactively
the
date
at
which
the
deductions
are
to
commence
would
open
the
door
to
the
possibility
of
fraudulent
agreements
being
drafted,
and
would
place
the
assessors
of
the
Minister
in
an
unsatisfactory
position.
It
is
also
true,
however,
that
many
sections
of
the
Act
leave
the
Minister’s
representatives
open
to
deception
by
the
execution
of
agreements
which
are
subsequently
found
to
be
shams
in
the
classical
definition
of
that
word
as
accepted
in
income
tax
law
and
in
law
generally—that
is,
agreements
penned
by
the
parties
in
one
sense
but
to
be
read
in
another,
or
designed
to
convey
to
the
court
that
something
is
to
take
place
which,
in
fact,
the
parties
never
intend
shall
occur.
The
decisions
on
the
interpretation
of
documents,
as
to
whether
or
not
they
are
shams
created
for
the
purpose
of
reducing
or
avoiding
the
payment
of
tax,
are
legion.
Paragraph
11(1)(l)
has
been
rigidly
interpreted
since
it
first
came
into
being.
In
my
view,
it
is
only
recently
that
archaic
interpretations
have
ceased
to
be
applied
to
the
wording
of
the
section.
In
this
case
there
is
evidence—in
fact,
there
is
no
evidence
to
the
contrary—that
exactly
what
the
separation
agreement
intended
was
carried
out.
From
January
1,
1971
until
the
end
of
December
1971
the
payments
were
made
on
a
periodic
basis
pursuant
to
an
agreement
between
the
parties
which
was
reduced
to
writing
in
September
1971,
so
there
is
no
question
whatsoever
of
this
agreement
being
a
sham.
The
agreement
was
drafted
in
precise
terms
and
in
an
effort
to
enable
the
husband
to
take
maximum
advantage
of
paragraph
11(1)(l).
However,
it
has
been
said
in
many
cases
that
it
is
not
for
the
courts
to
make
the
law,
but
merely
to
interpret
the
law
as
made
by
Parliament.
I
say,
with
all
respect
to
Parliament,
that
this
section
could
have
been
given
much
more
attention
and
a
much
more
realistic
wording,
at
the
time
of
the
revision
of
the
Act
in
1972.
Notwithstanding
what
I
have
said,
I
feel
that
I
am
bound
by
the
wording
of
paragraph
11(1)(l),
which
to
me
clearly
means
“from
and
after
the
making
of
an
order,
judicial
separation,
or
written
separation
agreement”.
There
is
no
discretion
in
this
Board
to
apply
the
benefits
of
this
deducting
section
to
an
appellant
retroactively,
notwithstanding
the
fact
that
he
has
complied
completely
with
what
was
obviously
verbally
agreed
to
but
was
not
reduced
to
writing
until
all
terms
of
the
agreement
were
completed.
To
me
that
is
a
completely
illogical
approach
to
take
in
respect
of
a
case
where
the
facts
are
such
as
these,
but
I
feel
it
would
be
irresponsible
for
me
to
change
what
I
think
is
the
obvious
intent
of
Parliament
by
finding
otherwise.
I
can
only
hope
that
the
new
counterpart
of
this
section
will
soon
be
re-worded
to
clearly
allow
deductions
for
persons
in
cases
where
there
is
no
sham,
no
fraud,
and
nothing
but
a
carrying-out
of
responsibilities
of
civil
and
criminal
law
in
meeting
an
obligation
to
supply
the
necessities
of
life
to
a
wife
and
children,
and
to
maintain
them
in
the
manner
to
which
they
were
accustomed,
so
that
relief
for
spouses
in
the
position
of
this
appellant
will
be
available
in
the
future.
It
is
with
some
degree
of
regret
that
I
find
I
must
dismiss
the
appeal.
Appeal
dismissed.
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