Section 60.1

A payer makes support payments directly to a child over the age of majority with the consent of the former spouse (the "recipient"). However, under the terms of the court judgment, these payments remain payable to the recipient. The support payments are not tax exempt and the child was a minor at the time the judgment was rendered.

CRA stated.

By virtue of subsection 56.1(1) … the recipient is deemed to have received the support payments that were made to the child of the age of majority … [and] subsection 60.1(1) deems the amounts, paid by the payer to the child of the age of majority, to be paid to the recipient.

Thus, to the extent that the amounts paid by the payer represent "support" amounts … the amounts are both deductible by the payer and taxable to the recipient.

After indicating that payments made by Monsieur to third parties pursuant to a cohabitation agreement to cover expenses relating to the matrimonial home (e.g., taxes and mortgage payments) did not have all the attributes of support, i.e. an amount that Madame could use at her discretion, as required by s. 56(12), the Directorate went on to indicate that because the text of the agreement did not provide for the application of ss. 56.1(2) and 60.1(2) to those payments, they were not deemed to be support by s. 60.1(2).

However, after referring to Veilleux, the Directorate stated:

[E]xpress reference to subsections 56.1(2) and 60.1(2) is no longer required in the written agreement, order or judgment. It is important, however, to ensure that the purpose of subsections 56.1(2) and 60.1(2) is clearly reflected in the wording of those documents and, inter alia, that the recipient knowingly assumes a tax burden in connection with third-party payments made by the payer of expenses covered by subsections 56.1(2) and 60.1(2).

The agreement of a separated husband to pay the principal and interest on a first mortgage to be incurred by his wife are not deductible under s. 60.1(2) because they represented instalments against this capital sum owing to her, rather than expenses for maintenance, as required by "A" of s. 60.1(2).

A 2018 court order required retroactive child and spousal support payments to be made by an individual to a former spouse on a monthly basis for the period from 2013 until the date of the order. However, voluntary monthly child support payments were made by the individual to the former spouse during this period, that, in total, exceeded the total child support required under the Order. Furthermore, the former spouse was required to pay an equalization amount to the individual respecting a division of matrimonial property, but with the overpayment for child support and the equalization amount being offset against the total retroactive spousal support required of the individual.

The Order requires regular monthly child support and spousal support payments to be paid by the individual to the former spouse beginning after the date of the Order - and an additional amount will be added to each of these monthly payments, representing a portion of the outstanding retroactive spousal support required to be paid, until the total outstanding retroactive spousal support has been paid in full.

Regarding whether the retroactive periodic support amounts would be deductible, the Directorate indicated that although the order, pursuant to the court’s legislative authority to do so, made the amounts payable retroactively on a periodic basis during the stipulated period (2013 to 2018), ‘payments made before the date of a court order or written agreement cannot be considered to be paid under the order or agreement.”

However, after noting that s. 60.1(3) provides that “payments made in the year of the order or agreement or in the preceding year are deemed to be paid under the order or agreement if the document explicitly refers to the payments that have been made and states that they are considered to have been made under the order or agreement,” the Directorate indicated that, here, s. 60.1(3) would deem the 2028 “Order to have been made as of the first payment that was made in 2017” so that “any of the support payments made from the first payment that was made in 2017 to the date of the Order would be deemed to be made under the Order and could be considered ‘support amounts’.” However, “[a]s the Order suggests that all retroactive child support payments have been paid in full,” s. 60.1(3) would not apply to them.

S. 60.1(3) did not apply where sums were paid by Monsieur to Madame, which he intended as an advance on the division of the family patrimony (which occurred subsequently pursuant to a divorce decree), and where a subsequent provisional judgment indicated that such sums were for maintenance purposes, given that they were not paid pursuant to a written order or agreement and given that s. 60.1(3) could not apply because the amounts were paid more than one year before such provisional judgment recognized them as support.