Dicks v. R. – TCC: Monthly payments to a former spouse for investment purposes were not deductible as “spousal support”.

Dicks v. R. – TCC:  Monthly payments to a former spouse for investment purposes were not deductible as “spousal support”.


Dicks v. The Queen (October 31, 2018 – 2018 TCC 197, Russell J.).

Précis:  Mr. Dicks paid $2,400 ($200 per month) to his former spouse in 2015 pursuant to a written separation agreement:

[4]  With respect to any $200 monthly payments, paragraph 8 of the agreement provides, under the heading “Mutual Fund”, that,

The husband agrees that he will make a contribution to an investment of the wife’s choice in the wife’s name in the amount of $200 per month, commencing January 15, 2012 until such time as the husband reaches the age of 60.

He sought to deduct the payments as spousal support and CRA denied the deduction on the basis that they were not “support” payments.  Mr. Dicks appealed to the Tax Court which denied his appeal, holding that the payments were not to satisfy “alimentary needs”.  There was no order as to costs since this was an informal procedure appeal.

Decision:   The Court had little difficulty disposing of the appeal:

[13]  In considering whether these $200 monthly payments were support amounts, we must keep in mind that these two former spouses’ separation agreement at para. 5 thereof is emphatically explicit in providing for monthly $1,200 spousal support payments from the former husband to the former spouse only to November 1, 2014. And as well, the agreement is specific that there were to be no further maintenance or support payments and that there would be no variation of that provision.

[14]  This specific language of the agreement makes clear that the $200 monthly payments for investment were not intended by either former spouse to constitute support payments. Nor is contribution to investments an aspect of support or maintenance, which concepts relate basically to provision of sustenance, i.e. being supplied with the necessities of life. In this regard see Champagne v. Minister of National Revenue, 1992 CarswellNat 510 (TCC), para. 23, wherein Tremblay, J. described maintenance payments as being paid, “to meet the alimentary needs of the recipient, those needs being of a regularly renewable and ongoing nature”.

[15]  For these two reasons - that the ex-spouses in their agreement clearly did not intend anything after November 1, 2014 to be support amounts, and also that contributions to investments are not within the general meaning of support and maintenance - I conclude that these payments were not support amounts so as to be deductible to the appellant under paragraph 60(b). In light of the language of the separation agreement, explicitly and specifically delineating the extent and duration of support payments to the ex-wife, this case does not require an analysis per McKimmon v. Minister of National Revenue, [1990] 1 C.T.C. 109 (F.C.A.) as to whether the payments in issue meet eight general criteria suggestive of support payments.

[16]  Furthermore, if in fact the former spouse was using these payments in whole or part to satisfy “alimentary needs” (i.e., for support or maintenance), which was not at all established by evidence at the hearing, then it could not be said that the payments were receivable under or being made pursuant to the written agreement of the appellant and his former spouse. Accordingly it would fail the last of the four necessary conditions per the Ken Blue decision, supra, for being a “support amount”. That condition is that the amount be receivable under a written agreement between the two separated spouses.

[17]  For these reasons I dismiss the appeal, without costs.