[Sembinelli (N.M.) v. Canada, [1994] 2 CTC 378, [1994] DTC 6636

Hugessen J.A.:—We have very little to add to what was said by the learned Tax Court Judge.

The respondent incurred legal expenses in successfully defending against an attack brought by her former husband on a support order previously obtained by her pursuant to the Divorce Act at the time of her divorce. The result which she obtained did not create any rights for the respondent. [1] The judgment simply dismissed the husband's application. The respondent's rights continued under the previously existing support order and were not altered. Nothing new came into oeing. No asset was created or preserved. Thus, we do not agree with the Minister's characterisation that the judgment "recognised" [2] the respondent's rights to support; those rights existed already and had no need of recognition.

Like the Tax Court judge, we think the decision of the Supreme Court in Evans v. M.N.R., [1960] S.C.R. 391, [1960] C.T.C. 69, 60 D.T.C. 1047, is governing. As in that case, (i) the claim in regard to which the expenses were incurred was a claim to income to which respondent was entitled, and (ii) those expenses were properly incurred in order to obtain payment of that income. [3]

The application for judicial review will be dismissed.

Application dismissed.