Section 60.1

Subsection 60.1(1) - Support


The Queen v. Armstrong, 96 D.T.C 6315 (FCA)

Monthly mortgage payments made by the taxpayer for the benefit of his former wife did not qualify for deduction because they did not represent an allowance as defined in s. 56(12), i.e., the former wife had no discretion as to the use of the monies in question. If s. 60.1(1) were read as not being subject to the conditions set out in ss.60(b), (c) and (c.1), and decree, order, judgment or written agreement would theoretically fall within the descriptions, a result which could not have been intended.

Philp v. The Queen, 83 DTC 5424, [1983] CTC 403 (FCTD)

Payments made pursuant to an agreement dated April 10, 1973 thus were not made pursuant to an agreement made after May 6, 1974, and therefore were not deductible.

The Queen v. Bryce, 82 DTC 6126, [1982] CTC 133 (FCA)

While s. 60.1 deems periodic mortgage and utility payments made pursuant to a judicially-approved maintenance agreement to have been made directly to the benefiting spouse, it does not deem those amounts to have been paid as an "allowance". S.60.1 therefore does not affect the non-deductibility of such payments under s. 60(b).

See Also

Poirier v. The Queen, 2011 DTC 1346 [at 1937], 2011 TCC 311

When the taxpayer separated from his wife, he continued making payments to third parties related to the matrimonial home. Jorré J. found that the payments were not deductible under s. 60.1(1) because they were not made pursuant to a written agreement, and so did not meet the definition of "support amount" in s. 56.1(4). He also noted that the "support amount" definition requires that, for payments to qualify as support amounts under s. 60.1(1), the agreement must provide that ss. 60.1(2) and 56.1(2) shall apply. He stated (at para. 34):

[I]t must be clear from the agreement that the parties intention is that the payer will be able to deduct the amounts in his income tax returns and that the recipient must include them. It is not necessary for the agreement to refer to ITA provisions.

Administrative Policy

7 January 1992 Memorandum (Tax Window, No. 15, p. 21, ¶1684)

Payments made to an adult child of the marriage for the child's benefit would not qualify as payments made for the benefit of the spouse or children in the custody of the spouse.

Subsection 60.1(2) - Agreement


The Queen v. Armstrong, 96 D.T.C 6315 (FCA)

S.60.1(2) had no application as the court order in question did not provide for the application of that provision.

Administrative Policy

24 November 1995 Memorandum 952722 (C.T.O. "Whether Payments are for 'Maintenance' or Capital")

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).

21 August 1992 Memorandum (Tax Window, No. 23, p. 23, ¶2163)

General comments.

Subsection 60.1(3) - Prior payments


Chabros v. The Queen, 95 DTC 5247 (FCA)

Minutes of settlement signed in 1989 in which the taxpayer's former spouse acknowledged that the taxpayer had paid to her "as and by way of maintenance during the calendar year 1988, the sum of $18,200" did not satisfy the requirement that the agreement provide that prior payments be considered to have been paid and received pursuant to the agreement.