Date: 20020605
Docket: A-731-00
Québec, Quebec, June 5, 2002
CORAM: LÉTOURNEAU J.A.
PELLETIERJ.A.
BETWEEN:
MARIO POISSON
Applicant
and
MINISTER OF NATIONAL REVENUE
Respondent
JUDGMENT
The application for judicial review is dismissed without costs.
Gilles Létourneau
J.A.
Certified true translation
S. Debbané, LLB
Date: 20020605
Docket: A-731-00
Neutral citation: 2002 FCA 238
CORAM: LÉTOURNEAU J.A.
NADONJ.A.
BETWEEN:
MARIO POISSON
Applicant
and
MINISTER OF NATIONAL REVENUE
Respondent
Hearing held at Québec, Quebec, on June 5, 2002.
Judgment delivered at Québec, Quebec, on June 5, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: NADON J.A.
PELLETIER J.A.
Date: 20020605
Docket: A-731-00
Neutral citation: 2002 FCA 238
CORAM: LÉTOURNEAU J.A.
NADON J.A.
PELLETIERJ.A.
BETWEEN:
MARIO POISSON
Applicant
and
MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered at Québec, Quebec, on June 5, 2002)
LÉTOURNEAU J.A.
[1] Despite all the sympathy we may have for the applicant, who paid his former spouse $5,200 in 1997 for her maintenance and the maintenance of Valérie, their daughter, we must apply the provisions of the Income Tax Act (Act), specifically, subsections 56.1(4) and 60.1(4) and
paragraph 60(b).
[2] The definition of "support amount" in subsection 56.1(4) requires that in order to be deductible, amounts to a former spouse be paid under an order of a competent tribunal or under a written agreement. In Hodson v. Canada., A-146-87, November 30, 1987 (F.C.A.), this Court held that paragraph 60(b) is an exception to the general rule that gives separated spouses a tax advantage provided that the requirements of the Act are met, in particular, that there be a written agreement.
[3] In this case, Judge Tardif of the Tax Court of Canada, relying on the conflicting testimonial evidence and after assessing the witnesses' credibility, held that the payments at issue were payments that had been made voluntarily and not under a written agreement as prescribed by the Act.
[4] The applicant argued in this Court, as he did in the Tax Court of Canada, that Exhibit A-1, dated March 24, 1994, and entitled [TRANSLATION] "Procedure for the maintenance of Valérie Boutin", which was submitted to Judge Tardif, constituted the written agreement that was required by the Act. He argued that the Trial Judge had misinterpreted that agreement, which was in writing and signed by both spouses.
[5] With respect, it is difficult to see how Exhibit A-1 can provide a basis for the applicant's argument, given that the first paragraph states that no support amount shall be paid for Valérie Boutin for the time being. The second and third paragraphs, read together, provide that the applicant may maintain his daughter, Valérie, if necessary, until a request for support is made.
[6] The third paragraph clearly indicates the parties' intention, which was that when a request for support is made by a lawyer, the support will not be retroactive and therefore will exist only for the future. In fact, an order was made by the Quebec Superior Court setting out a support amount to be paid by the applicant beginning on January 1, 1999. Ms. Boutin, the applicant's former spouse, testified that she had met with a lawyer in early 1999: see Respondent's record, transcript of evidence, p. 36.
[7] In our opinion, the Tax Court Judge did not misinterpret the agreement when he concluded that the payments made for 1997, the taxation year in issue, were not made under that agreement.
[8] The applicant argued strenuously in this Court that a second written agreement had been entered into by the parties on May 25, 1994, setting the maintenance for their daughter, Valérie, which was referred to in the first agreement dated March 24, 1994, at $100 per week. In that first agreement, the applicant had agreed to maintain his daughter [TRANSLATION] "as necessary and as indicated" by his former spouse. He contended that he could not properly ascertain and plan for the payment of his obligations from this formula, since the amounts requested varied each time. That explains why the second agreement provided for a fixed amount and due dates. He said that he had unfortunately lost that written agreement and was unable to find it. However, he added, the authorization dated May 25, 1994, for a weekly transfer of $100 to his former spouse's bank account tends to prove that there was a second agreement: see the Applicant's record, p. 50, Exhibit 10. He concluded from this that the finding by Judge Tardif that there was no second written agreement was a patently unreasonable finding of fact.
[9] The Trial Judge heard and saw the witnesses, including the applicant's former spouse. She denied that there had been a second agreement and said that she had signed only one document, the one dated March 24, 1994: see the Respondent's record, transcript of evidence, p. 40. She also asserted that the expression "support amount" had never been used to characterize the weekly payments she was receiving, and that they were voluntary payments made under the agreement of March 24, 1994. She added that during discussions she had with her former spouse, they had agreed that she would not be including those amounts in her income for tax purposes: ibid, pp. 49 and 50.
[10] Judge Tardif believed the testimony given by the applicant's former spouse on that point. Therefore, he concluded that there was no second agreement in writing and signed by the parties. Having regard to the evidence as a whole, including the documentary evidence that was before him, we cannot say that his finding of fact resulted from a palpable and overriding error: Housen v. Nikolaisen, [2002] S.C.C. 33, [2002] S.C.J. No. 31.
[11] For these reasons, I would dismiss the application for judicial review, without costs in the circumstances.
Gilles Létourneau
J.A.
"I concur.
Marc Nadon"
"I concur.
Denis Pelletier"
Certified true translation
S. Debbané, LLB
FEDERAL COURT OF APPEAL
Date: 20020605
Docket: A-731-00
Between:
MARIO POISSON
Applicant
and
MICHEL LAMARRE
Respondent
REASONS FOR JUDGMENT OF THE COURT
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-731-00
STYLE OF CAUSE:
MARIO POISSON
Applicant
and
MINISTER OF NATIONAL REVENUE
Respondent
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: June 5, 2002
REASONS FOR JUDGMENT
OF THE COURT: Létourneau J.A.
CONCURRED IN BY: Nadon J.A.
Pelletier J.A.
DATED: June 5, 2002
APPEARANCES:
Mario Poisson for himself
Michel Lamarre for the respondent
SOLICITORS OF RECORD:
Mario Poisson
Sainte-Foy, Quebec for himself
DEPARTMENT OF JUSTICE
Montréal, Quebec for the respondent