| 921890 | |
| 24(1) | R.B. Day |
| (613) 957-2136 |
July 21, 1992
Dear 19(1)
We are writing in reply to your letter of April 8, 1992, which was forwarded to us by telefax transmission on June 22, 1992, and covering letter of July 7, 1992. In this letter you requested our opinion as to whether a paternity agreement filed with the provincial court pursuant to section 35 of the Family Law Act, or an order made pursuant to a section 59 Family Law Act application by one of the parties, would be considered to be a "concrete pronouncement, decree or direction of a tribunal empowered to make an order" sufficient to constitute an order as required by paragraph 60(c.1) of the Income Tax Act (the "Act").
As we understand your situation, the parents of a child, who have never been spouses and have never cohabited, execute a paternity agreement to provide for child support payments. The paternity agreement appears to fulfil all the requirements set out in paragraph 60(c.1) of the Act. Your particular concern is whether or not the filing of the agreement with the provincial court under section 35 of the Family Law Act or an order made by the provincial court under section 59 of the Family Law Act, where a party to the agreement seeks such an order, will be considered to fulfil the requirement in paragraph 60(c.1) of the Act that the payments be made pursuant to an order of a competent tribunal.
Our Comments
It is our view that, although section 35 of the Family Law Act indicates that an agreement filed with the provincial court has the force of an order of that court, it is not in itself an order of the court as envisioned by paragraph 60(c.1) of the Act. As a consequence, the payer of such an agreement would not be entitled to a deduction from income for amounts paid pursuant to the agreement nor would a recipient be required to include such amounts in income. However, should a section 59 application made by a party to the agreement be incorporated into a court order, it is our opinion that this event would satisfy the "order of a competent tribunal" requirement in paragraph 60(c.1) fo the Act.
In response to your concluding question, it is our opinion that where a common-law spouse files a separation agreement, which provides for spousal or child support, pursuant to section 35 of the Family Law Act, such filing would not constitute an order of a competent tribunal, as previously discussed. As a result, the support payments would not be deductible by the payer pursuant to subsection 60(c.1) of the Act.
We trust our comments will be of assistance to you.
Yours truly,
J.A. Szeszyckifor DirectorBusiness and General DivisionRulings DirectorateLegislative and Intergovernmental Affairs Branch