Master McCallum:—The petitioner here applies by notice of motion for a “declaration that the petitioner has paid maintenance for the support of the respondent in the amount of $1,100 per month from May 1, 1986, to and including December 1, 1990, pursuant to section 15 of the Divorce Act, 1985." Section 15 of the Divorce Act provides the court with the authority to make an order "requiring one spouse to secure or pay . . . such lump sum or periodic sums . . . as the court thinks reasonable for the support of”.
That section does not, in my view, empower the court to make the declaration sought. Rather the court is able to make an order to deal with maintenance in the future.
Counsel referred me to a decision of Mr. Justice Goodman of the Manitoba Queen's Bench in Meltzer v. Meltzer (1989), 22R.F.L. (3d) 38. In that decision Goodman, J. on July 26, 1989, declared that amounts paid by the husband to the wife in 1986 and 1987 were maintenance payments pursuant to subsection 60.1(3) of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act"). Subsection 60.1(3) of the Act states:
(3) Prior payments.—For the purposes of this section and section 60, where a decree, order or judgment of a competent tribunal or a written agreement made at any time in a taxation year provides that an amount paid before that time and in the year or the immediately preceding taxation year is to be considered as having been paid and received pursuant thereto, the following rules apply:
(a) the amount shall be deemed to have been paid pursuant thereto; and
(b) the person who made the payment shall be deemed to have been separated pursuant to a divorce, judicial separation or written separation agreement from his spouse at the time the payment was made and through the remainder of the year.
The respondent wife in this case has apparently been served with the petition for divorce and the notice of motion and takes no position on the application. The effect of the order would be to impose the tax burden for the payments upon her and allow the husband to deduct those amounts from his taxable income. On the authority of Meltzer v. Meltzer, supra, it appears to me that the Income Tax Act contemplates a declaration in the terms sought being made in appropriate circumstances.
I am satisfied that the amounts in question have been paid and that they were intended by both parties to be paid as maintenance for the respondent wife. In the circumstances therefore I declare that the amounts paid prior to December 10, 1990, in the taxation years 1990 and 1989 are to be considered as having been paid and received pursuant to an order of the court for maintenance.
This matter came on for hearing on December 10, 1990, and this order ought to take effect as of December 10, 1990.
Motion granted.