Citation: 2004TCC338

Date: 20040614

Docket: 2003-3303(IT)I

BETWEEN:

SHELLEY PATRIQUIN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

____________________________________________________________________

Agent for the Appellant: Terry Kent

Counsel for the Respondent: Julie Rogers-Glabush

____________________________________________________________________

REASONS FOR JUDGMENT

(Delivered orally from the Bench at

Edmonton, Alberta, on January 23, 2004)

McArthur J.

[1]      The issue is whether there was a written agreement effective May 1, 1997, that changed the support payments contained in a 1987 divorce judgment.

[2]      The Appellant and Bud Patriquin were married in 1980, had two children, Denise and Dale, born in 1981 and 1983. Pursuant to a 1987 divorce judgment, Mr. Patriquin was required to make payments of $300 per month. In 1994, by verbal agreement with the Appellant, he agreed to pay $600 per month.

[3]      In 1996, the Appellant commenced proceedings toward obtaining a written agreement. Upon agreement with Mr. Patriquin's solicitor, the Appellant not being able to afford counsel prepared a consent order filed as Exhibit A-1 and Exhibit R-2. The handwritten paragraph 6 was added by Mr. Patriquin. This consent order was returned to the Appellant by Mr. Patriquin's solicitor, Mr. Vigen, under cover of the following letter (Exhibit A-2):

Dear Ms. Patriquin

Re:        Consent Order

Enclosed please find the executed Consent Order with a clause inserted that my client insisted upon. If you have a problem with it, kindly call me to discuss it. Otherwise, I look forward to receipt of a filed copy of the Order.

Yours truly,

R. Douglas Vigen

She did not have need to call Mr. Vigen; she agreed with it.

Analysis

[4]      In instances of conflict in the recollection of past events by each party, I accept the evidence of the Appellant over that of Mr. Patriquin without reservation. On or about April 27, 1997, the Appellant dealt directly with her former husband. She agreed to the added paragraph 6 of the consent, and he agreed to file the document with the Court. When the Appellant became aware in September 2002 that this had not been done, she filed it.

[5]      For the following reasons, I find that the written consent order was a legal and binding agreement effective May 1, 1997, being the commencement day as defined in subsection 56.1(4) of the Income Tax Act. I find that it changed the support payments in the former written agreement referred to.

[6]      First, it was signed by both parties; second, Mr. Patriquin did his negotiation through his solicitor Mr. Vigen; third, Mr. Vigen had the Appellant prepare the draft order, as they had agreed between them; fourth, the Appellant agreed to the changed Number 6 inserted by Mr. Patriquin; fifth, Mr. Patriquin acknowledged that he signed the agreement; although he felt he was forced to in that he was aware upon signing in late April 1997 that the laws had changed with regard to deduction of support payments. Sixth, he followed the terms of the order from its inception. He paid the $600 per month, provided notice with respect to visitation, and that, at least in the 2000 taxation year, did not claim a deduction for the support payments he made. Seventh, paragraph 1 of the consent order includes the following paragraph:

... In accordance with the Federal Support Guidelines effective May 1, 1997, said payments made for the support of the children shall not be reported by the Respondent as a taxable deduction and the Petitioner will not report the aforementioned payments as taxable income.

Eighth, Mr. Patriquin admitted he wrote the undated note to Revenue Canada (Exhibit R-4) probably in the summer of 2002, wherein he stated in part:

Shelley and myself, Bud Patriquin ... made an agreement May 1997 that I would no longer claim the support.

He goes on to say:

Shelly did not sign this agreement, nor did she get it legalized in court.

[7]      I have no doubt that both parties signed the agreement and intended to be bound by it. I was provided with the judgment of Judge Bowie in Alm v. The Queen.[1] I find the present case is similar to the situation in which Judge Bowie concluded:

There is nothing loose or indefinite about the arrangement, it is in the letters.

And I find in this instance there is nothing loose or indefinite about the arrangements. Both parties intended to be bound by the consent order and I find they are in fact, bound by it, effective May 1 and not when it was filed with the Court in September 2002.

[8]      It is clear from the jurisprudence that a commencement date can be established by the parties, proving that the intended effective day was to ensure that the payments were not taxable to the recipient pursuant to the post-April 1997 support regime.

[9]      The appeals are allowed with costs to the Appellant in the amount of $300.

Signed at Ottawa, Canada, this 14th day of June, 2004.

"C.H. McArthur"

McArthur J.

CITATION:

2004TCC338

COURT FILE NO.:

2003-3303(IT)I

STYLE OF CAUSE:

Shelley Patriquin and Her Majesty the Queen

PLACE OF HEARING:

Edmonton, Alberta

DATE OF HEARING:

January 23, 2004

REASONS FOR JUDGMENT BY:

The Honourable Justice C.H. McArthur

DATE OF JUDGMENT:

February 6, 2004

APPEARANCES:

Agent for the Appellant:

Terry Kent

Counsel for the Respondent:

Julie Rogers-Glabush

COUNSEL OF RECORD:

For the Appellant:

Name:

N/A

Firm:

N/A

For the Respondent:

Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada

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