T-865-83
The Queen (Plaintiff)
v.
Cecilia Dianne Taylor, Executrix of the Estate of
Irving A. Taylor (Defendant)
Trial Division, Cattanach J.—Ottawa, March 2
and 30, 1984.
Income tax — Income calculation — Deductions — Appeals
from Tax Review Board decision allowing appeals from
assessments for 1978 and 1979 — Minister not allowing
deductions for alimony paid pursuant to court order on ground
not paid to "spouse" pursuant to s. 60(b) Income Tax Act —
Taxpayer ordered to pay interim alimony prior to declaration
marriage null and void because "wife's" previous marriage not
dissolved according to law of domicile — Board holding
payments to de facto spouse within meaning of "spouse or
former spouse" in s. 60(b) — Appeals allowed — S. 73(1.2)
definition of "spouse"and 'former spouse" including party to
void or voidable marriage not applying because application of
s. 73(1.2) limited to s. 73(1) — Grant of interim alimony not
decisive as to legal status — Void marriage meaning taxpayer
never married — "Wife" never "spouse" — "No equity in
taxing statute" answer to inequity in not permitting taxpayer
to deduct alimony ordered to pay by court — Rule of interpre
tation in Heydon's Case applied — Remedial legislation
extending definition of "spouse" applying to 1982 and subse
quent years confirming mischief to be remedied inequity in
precluding party to void or voidable marriage from deducting
interim alimony payments — Income Tax Act, S.C. 1970-71-
72, c. 63, ss. 60(b), 73(1),(1.2) (as am. by S.C. 1977-78, c. 32, s.
15), 252(3) (as enacted by S.C. 1980-81-82-83, c. 140, s. 130).
Statutes — Interpretation — No equity in taxing statute —
Definition of "spouse or former spouse" — Whether interim
alimony paid by court order deductible — Marriage later
declared null and void — Parliament since taking remedial
action in extending definition of "spouse" — Rule in Heydon's
Case — Remedial legislation relating to taxation years subse
quent to those in question — Income Tax Act, S.C. 1970-71-
72, c. 63, ss. 60(b), 73(1),(1.2) (as am. by S.C. 1977-78, c. 32, s.
15).
Appeals were taken from a decision of the Tax Review Board
allowing appeals from assessments for 1978 and 1979. The
taxpayer claimed deductions for alimony paid pursuant to a
court order under paragraph 60(b) of the Income Tax Act. The
Minister disallowed the deductions on the ground that they
were not paid to the taxpayer's "spouse" within the meaning of
that word as used in paragraph 60(b). The taxpayer married
Janet Anderson, unaware that her previous marriage had not
been dissolved by a Mexican divorce according to the law of the
domicile of the couple. He was also unaware that his marriage
was therefore not valid under the law of the domicile. Janet
Anderson petitioned for divorce and the taxpayer sought a
declaration that the marriage was void. A Master of the
Supreme Court of Ontario ordered the taxpayer to pay interim
alimony. The marriage was declared null and void on Decem-
ber 6, 1979. The Chairman of the Board allowed the taxpayer's
appeals from the assessments on the basis that the payments
were made to his de facto spouse or former spouse and were
accordingly made to his "spouse or former spouse" within the
meaning of those words as used in paragraph 60(b). The issue
is whether the alimony was paid to the taxpayer's "spouse or
former spouse".
Held, the appeals should be allowed. The definition of
"spouse" and "former spouse" in subsection 73(1.2) which
includes "a party to a void or voidable marriage" does not
apply because it is expressly limited to the interpretation of
those words in subsection 73(1). The defendant contends that
because of the lack of a clear definition of "spouse" it includes
a de facto marriage. The meaning of "spouse" is that attributed
to it in common parlance, which is a party to matrimonial
union in the legal sense. The award of interim alimony to a de
facto wife is predicated upon a quasi-status created by circum
stances and for limited purposes, but the grant of interim
alimony is not decisive as to the legal status. Thus resort must
be had to the consequences of a void or voidable marriage and
the status of the parties thereto. The taxpayer's marriage was
void ab initio by reason of a prior existing marriage. Either
party was entitled to a decree of nullity as a matter of right.
The decree was purely declaratory. The taxpayer was never
married to Janet Anderson from which it follows that she was
not his "spouse" within the meaning of that word in paragraph
60(b). It seems inequitable that the taxpayer was required to
pay interim alimony by a valid court order and yet he cannot
deduct those amounts. However, there is no equity in a taxing
statute. If the person sought to be taxed comes within the letter
of the law then he must be taxed no matter how great the
hardship or inequity may appear to be. Confirmation of this
interpretation of "spouse" as applied to the 1978 and 1979
taxation years can be found in the remedial action which
Parliament has taken in providing an extended definition of
"spouse" applicable to paragraph 60(b). Applying the rule in
Heydon's Case, the mischief sought to be remedied by the new
legislation must have been the lack of equity in precluding a
party to a void or voidable marriage from deducting interim
alimony ordered to be paid. Had the contrary been the case
there would be no need to provide a cure to the law as it
previously existed. It was remedial legislation and not merely
clarification. Unfortunately the remedial legislation applies
only to 1982 and subsequent years.
CASES JUDICIALLY CONSIDERED
APPLIED:
Johnston v. Minister of National Revenue, [ 1948] S.C.R.
486; The Minister of National Revenue v. Pillsbury
Holdings Limited, [1965] 1 Ex.C.R. 676; Lumbers v.
The Minister of National Revenue, [1943] Ex.C.R. 202;
Barnet v. Barnet, [1934] 2 D.L.R. 728 (Ont. C.A.); De
Reneville v. De Reneville, [1948] P. 100 (Eng. C.A.); Re
Rodwell (deceased), [1969] 3 W.L.R. 1363 (Ch.D.);
Heydon's Case (1584), 3 Co. Rep. 7a; 76 E.R. 637
(K.B.D.); Partington v. The Attorney-General (1869),
Law Rep. 4 H.L. 100 (H.L.); In re Mayfair Property
Company, [1898] 2 Ch. 28.
REFERRED TO:
Tobias v. Her Majesty the Queen, [1978] CTC 113
(F.C.T.D.).
COUNSEL:
Donald G. Gibson for plaintiff.
David S. Cheadle, Q.C. for defendant.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Cheadle, Bryan, Johnson & Shanks, Thunder
Bay, Ontario, for defendant.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: These are appeals from a deci
sion of the Tax Review Board dated December 3,
1982 whereby appeals by the late Irving A. Taylor,
who died at Houston, Texas in October 1982, from
assessments to income tax made by the Minister of
National Revenue for the taxpayer's 1978 and
1979 taxation years, were allowed.
In computing his income for these taxation
years the taxpayer claimed deductions in the
respective amounts of $16,075 and $8,550 as
alimony paid pursuant to an order of a competent
tribunal made payable on a periodic basis to his
spouse pursuant to paragraph 60(b) of the Income
Tax Act [S.C. 1970-71-72, c. 63] applicable to the
1978 and 1979 taxation years.
The Minister in assessing the taxpayer disal
lowed the deductions so claimed as not falling
within paragraph 60(b) in that the payments were
not made by the taxpayer to his "spouse" within
the meaning of that word as used in that para
graph of the Act then in force.
As I appreciate the basis upon which the Chair
man of the Tax Review Board, as that tribunal
was known at that time, allowed the taxpayer's
appeals from the assessments made by the Minis
ter and referred the assessments back to the Minis
ter for reassessment it was that monthly payments
of alimony made by the taxpayer pursuant to the
Court order were made to his "de facto" spouse or
former spouse and were accordingly made to his
"spouse or former spouse" within the meaning of
those words as used in paragraph 60(b).
In paragraph 4 of the statement of claim it is
alleged as follows:
4. In assessing Irving A. Taylor for the 1978 and 1979 taxation
years, the Minister of National Revenue disallowed the deduc
tion referred to in paragraph 3. In doing so he assumed,
amongst others, the facts referred to in paragraphs 5 to 14.
Paragraphs 5 to 14 of the statement of claim,
thus recite the facts assumed by the Minister (and
possibly others) in disallowing the deductions
claimed by the taxpayer and assessing accordingly.
In paragraph 2 of the statement of defence the
defendant responded as follows:
In reference to Paragraph 4 of the Plaintiffs Statement of
Facts set forth in the Statement of Claim, the Defendant has no
knowledge of any assumptions made by the Minister of Nation
al Revenue in reaching his decision to disallow the deductions
therein referred to.
In Johnston v. Minister of National Revenue,
[1948] S.C.R. 486, Rand J. delivering the judg
ment of the majority said at page 489:
Every such fact found or assumed by the assessor or the
Minister must then be accepted as it was dealt with by these
persons unless questioned by the appellant.
He concluded the paragraph so beginning by
saying the oft-quoted classic words:
... but the onus was his [the appellant's] to demolish the basic
fact upon which the taxation rested.
In the present instance the assumptions on
which the Minister based the assessments appealed
from were set forth as well as the possibility of
others.
The relevance of this pleading was commented
on in The Minister of National Revenue v. Pills-
bury Holdings Limited, [1965] 1 Ex.C.R. 676
where it was said at page 686:
The respondent [in this instance the defendant] could have met
the Minister's pleading that, in assessing the respondent, he
assumed the facts set out in paragraph 6 of the Notice of
Appeal by:
(a) challenging the Minister's allegation that he did assume
those facts,
(b) assuming the onus of showing that one or more of the
assumptions was wrong, or
(c) contending that, even if the assumptions were justified,
they do not of themselves support the assessment.
(The Minister could, of course, as an alternative to relying on
the facts he found or assumed in assessing the respondent, have
alleged by his Notice of Appeal further or other facts that
would support or help in supporting the assessment. If he had
alleged such further or other facts, the onus would presumably
have been on him to establish them. In any event the Minister
did not choose such alternative in this case and relied on the
facts that he had assumed at the time of the assessment).
A taxpayer is entitled to know the assumptions
made by the Minister at the time of assessment
because the onus is his to demolish those
assumptions.
Here the defendant alleges in paragraph 4 of his
defence that he "has no knowledge of any assump
tions made by the Minister of National Revenue"
in reaching his decision to disallow the claims for
deductions.
It is abundantly clear, and it cannot be other
wise, that an assessor, in order to make an assess
ment of a taxpayer's income, the liability to tax
thereon and the amount of that tax, must make
certain assumptions of fact and communicate
those assumptions to the taxpayer at the time of
the assessment.
The allegation in the statement of defence that
the defendant has no knowledge of the assump
tions made by the Minister puts in question the
facts found or assumptions made by the Minister
and is susceptible of the interpretation that the
Minister made no assumption of facts as is pres
ently alleged that he did.
There is no impediment to the Minister basing
an assessment on facts or assumptions other than
those upon which the assessment was based and so
alleging but in that event the onus is upon the
Minister to establish those allegations (see Tobias
v. Her Majesty the Queen, [1978] CTC 113
(F.C.T.D.)).
Upon those circumstances being brought to the
attention of counsel for the parties at the outset of
the trial counsel for the defendant admitted that
the Minister had made the assumptions that were
alleged and counsel for the plaintiff admitted that
no other assumptions were made nor are being
relied upon. Counsel for the defence moved orally
to amend the statement of defence by deleting
paragraph 2 therefrom which was so ordered.
Counsel for the plaintiff accepted and admitted
as a fact that the taxpayer when he went through a
form of marriage with Janet Anderson did so in
good faith and was unaware that the antecedent
marriage between Janet Anderson and William
Witty II had not been dissolved by a divorce in
Mexico by the law of North Carolina where the
parties were domiciled and likewise was unaware
that the form of marriage gone through by him
and Janet Anderson in Louisiana was not recog
nized as valid by the laws of North Carolina.
Subject to that qualification as to bona fides
which does not alter the circumstances the facts
are admitted as being those alleged in
paragraphs 5 to 14 of the statement of claim.
There is no question whatsoever that the taxpay
er paid interim alimony which was ordered to be
paid by the Master on November 7, 1977 follow
ing application therefor by Janet Anderson or
Taylor following upon the petition made by her
dated August 4, 1977 for a decree of divorce
launched in the Supreme Court of Ontario and
that he was obligated to do so failing which he
would be liable to being held in contempt of court.
In Lumbers v. The Minister of National Reve
nue, [1943] Ex.C.R. 202, Thorson P. said at page
211:
It is a well established rule that the provisions of a taxing Act
must be construed strictly.
He elaborated in the succeeding paragraph by
saying:
... a taxpayer cannot succeed in claiming an exemption from
income tax unless his claim comes clearly within the provisions
of some exempting section of the Income War Tax Act: he
must show that every constituent element necessary to the
exemption is present in his case and that every condition
requested by the exempting section has been complied with.
Reverting to the language of paragraph 60(b) of
the Income Tax Act there is no question that all
constituent elements necessary to the exemption in
this instance are present, except the crucial issue
between the parties and that is whether the tax
payer paid alimony to his "spouse or former
spouse".
The word "spouse" is not defined in the general
interpretation section of the statute but in subsec
tion 73(1.2) [as am. by S.C. 1977-78, c. 32, s. 15]
for the purposes of subsection 73(1), "spouse". and
"former spouse" are defined as including "a party
to a void or voidable marriage, as the case may
be".
Subsection 73(1) deals with the transfer of capi
tal property of a taxpayer to a "spouse" or "form-
er spouse".
Prima facie the same words in different parts of
the same statute should be given the same meaning
unless there is a clear reason for not doing so.
Such a clear reason here exists. The definition of
the words "spouse" and "former spouse" in sub
section 73(1.2) is made expressly applicable to the
interpretation of those words in subsection 73(1)
only and for no other purpose.
That being so and since the word "spouse" has
no technical meaning and does not relate to some
particular subject of art or science it is to be
understood in the statute in the same way as it is
understood in the common language, that is to say
a word of popular meaning must be taken in its
popular sense.
It is a well-known rule of courts of law that
words should be taken to be used in their ordinary
sense, unless the context clearly dictates otherwise,
and resort may be had to dictionaries to ascertain
their ordinary meaning.
Counsel for the appellant [plaintiff] referred me
to the definition of the word "spouse" as a noun in
The Shorter Oxford English Dictionary which is:
1. A married woman in relation to her husband; a wife ....
and with equal logic as:
2. A married man in relation to his wife; a husband ....
As a verb "spouse" is defined as:
1. To join in marriage or wedlock.
To complete the exercise the word "wife" is
defined as:
2. A woman joined to a man by marriage; a married woman.
Conversely the word "husband" is defined as:
2. A man joined to a woman by marriage ....
and so too a married man.
Blackstone has said in his maxims that "by
marriage, the husband and wife are one person in
law" most likely applicable in his time.
The common theme in those definitions is the
joinder of a man and a woman in marriage. Mar
riage means the joinder in wedlock and the
ceremony by which two persons are made man and
wife. Wedlock is the condition of being married or
matrimonial union in the legal sense.
Thus marriage is the union of one man and one
woman to the exclusion of all others and each
party to the union is a "spouse".
Paragraph 10 of the statement of claim alleges,
and it is admitted, that the taxpayer, Irving A.
Taylor, "commenced an action in the Supreme
Court of Ontario for a declaration that his pur
ported marriage to Janet Anderson [in the State of
Louisiana on November 8, 1969 at which time
both parties thereto were residents of the State of
North Carolina and the marriage was not recog
nized in that State] was void". The words in
brackets have been inserted. This, succinctly put,
is an action for a declaration of nullity.
That action was litigated before Mr. Justice
Maloney who gave judgment on December 6, 1979
the operative paragraphs of which read:
1. THIS COURT DOTH ORDER AND DECLARE that the marriage
between the Plaintiff and the Defendant which was solemnized
at the City of New Orleans, in the State of Louisiana, one of
the United States of America on the 8th day of November,
1969 is a nullity by reason of the prior subsisting marriage of
the Defendant.
2. AND THIS COURT DOTH FURTHER ORDER AND ADJUDGE the
marriage between the Plaintiff and the Defendant which was
solemnized at the City of New Orleans, in the State of Loui-
siana one of the United States of America on the 8th day of
November 1965 [sic] be and the same is hereby declared to be
void.
The first paragraph is the declaration of nullity
and the reason therefor and the second paragraph
is, in addition, an adjudication that the purported
"marriage" was void.
It is not specifically stated that the "marriage"
was void ab initio but in my view that is not
necessary to so state because, as is stated in the
declaration of nullity in the first paragraph the
marriage is a nullity by reason of a prior subsisting
marriage from which it follows that the second
marriage is bigamous and therefore automatically
void.
If a marriage is merely voidable and action is
taken to void the marriage it is declared void ab
initio.
The fact that the word marriage is not preceded
and modified by the adjective "purported" lent
significance to the contention of counsel for the
defendant that there had been a "de facto" mar
riage. That contention I do not accept.
Of much greater significance however is the
contention following on the facts in paragraphs 11
and 12 of the statement of claim.
On August 7, 1977 Janet Anderson began an
action in the Supreme Court of Ontario for a
decree of divorce from Irving A. Taylor.
On November 7, 1977 she obtained an order
requiring Irving Taylor to pay interim alimony to
her.
That is the order with which the taxpayer com
plied and sought to deduct the interim alimony so
paid in computing his taxable income for his 1978
and 1979 taxation years.
The operative portion of the order simply states
that:
IT IS ORDERED that the Respondent [and by that is meant the
taxpayer herein] shall pay to the Petitioner the sum of $950.00
per month as and for Interim Alimony with effect from Sep-
tember 1st, 1977. [The words in brackets are mine.]
As a consequence of the order requiring the
taxpayer to pay interim alimony to Janet Ander-
son in the proceeding for a decree of divorce
counsel for the defendant contends before me, as
he successfully contended before the Chairman of
the Tax Review Board, whose decision is hereby
under appeal, that a de facto marriage existed
between the couple and accordingly Janet Ander-
son was the de facto spouse of the taxpayer in
1978 and 1979 (the taxation years in question)
and because of the lack of a clear definition of the
word "spouse" in the Income Tax Act, the word
bears that meaning in paragraph 60(b) thereof,
that is to say, a de facto spouse.
As I appreciate the principle, well established
and propounded by authorities, which actuated the
learned Master in giving the order that he did it is
that the allotment of alimony pendente lite
depends upon the marital relationship of the par
ties existing de facto.
That this should be so makes eminent common
sense. In matrimonial causes, including a suit for
nullity as well as a petition for divorce, the parties
by their mutual acts and course of conduct have
clothed the other with the reputation of being a
wife or husband as the case may be and the
husband has initiated, assuming the male to be the
aggressor, or in any event has sanctioned that state
of affairs to exist and to continue to exist as a
consequence of which the grant of interim alimony
is but a perpetuation of that status, quasi-status
though it be.
An illustration to like effect predicated upon the
doctrine of holding out or ostensible authority is
that even though a marriage is null and void and is
therefore to all intents and purposes a "non-mar
riage" and produces none of the legal incidents of
matrimony, nevertheless so long as the parties live
together as man and wife in a common household
the putative wife can pledge the "husband's"
credit as if she were his legal wife.
This is predicated upon the presumption found
ed upon the mere fact of a cohabitation and that
presumption applies with equal force when a man
lives with a woman to whom he is not married if he
allows her to pass as his wife.
Where there has been a ceremony of marriage
followed by cohabitation the validity of the mar
riage is presumed but being a presumption it can
be rebutted by decisive evidence to the contrary.
The general rule is abundantly clear that in a
matrimonial cause, including a suit for nullity,
when a de facto marriage is acknowledged or
proven interim alimony will be awarded pending
the determination of the rights of the parties de
jure.
Thus Macdonnell J.A. was prompted to say [at
page 732] in Barnet v. Barnet, [1934] 2 D.L.R.
728 (Ont. C.A.) in the matter of the application of
a wife de facto for interim alimony:
Until the Court has determined her rights de jure (and it may
be found she is the defendant's wife in every sense) there is no
reason why she should not be allowed alimony in the usual way.
The wife had brought an action for a declaration
that the marriage she had entered into was null
and void because the husband had assured her that
a prior marriage he had entered into had been
dissolved by divorce which it had not.
I would therefore add to the words in the above
quotation that Macdonnell J.A. enclosed in brack
ets the words "or that she was not". It would make
no difference to the award of alimony in the usual
way.
As has been previously indicated because the
definition of a "spouse" in [subsection] 73(1.2) as
therein extended to include a party to a void or
voidable marriage is limited exclusively to subsec
tion 73 (1) it is not applicable as defining the word
"spouse" for the purposes of other sections of the
statute where that word appears. That being so, as
also previously indicated the meaning of the word
is to be taken as that attributed to it in common
parlance and that is to be taken as a party to
matrimonial union in the legal sense.
The award of interim alimony to a de facto wife
is predicated upon â quasi-status created by cir
cumstances and for limited purposes but the grant
of interim alimony is not decisive as to the legal
status.
Thus then resort must be had to the conse
quences of a void or voidable marriage and the
status of the parties thereto.
In the present instance the taxpayer, who was
the "husband", commenced an action for a decla
ration of nullity.
The wife countered by commencing an action
for divorce.
A decree of nullity is not a divorce a vinculo.
Divorce is based on a cause arising after a valid
marriage has come into existence (e.g., adultery
and other grounds now added).
A decree of nullity is based on a cause existing
at the time of the marriage ceremony (e.g., a prior
existing marriage, the parties were within the pro
hibited degrees of consanguinity or insanity).
A decree of divorce dissolves the marriage upon
the decree absolute.
A decree of nullity either (1) declares that there
never was a valid marriage, or (2) dissolves the
marriage with retroactive effect.
The first declaration follows upon the marriage
being void ab initio and the second follows upon
the marriage being voidable.
In the first case the marriage is regarded as not
having taken place and the decree of nullity is
merely declaratory of that circumstance.
In this instance there is an impedimentum
mens which is an impediment to marriage not
removed by solemnization of the rite but continues
in force and makes the marriage null and void.
In the second case where the marriage is void-
able a marriage comes into being on solemnization
of the rite with all its consequences even though it
be sinful but the marriage is, on a decree of nullity
being made, wiped out completely as if it had
never existed and with retroactive effect.
This second case is an impedimentum impediens
as contrasted with an impediment um dirimens and
is where the parties are prevented from marry-
ing—such as lack of parental consent—but if the
parties avoid that obstacle and go through a solem-
nization ceremony the marriage is valid with all its
consequences and held as such by every court until
a decree annulling the marriage has been pro
nounced by a court of competent jurisdiction. The
marriage can only be annulled at the instance of
one of the parties and at the moment a decree of
nullity is pronounced then there is no marriage and
there never has been a marriage.
The difference in substance was expressed by
Lord Greene M.R., when he said in De Reneville
v. De Reneville, [1948] P. 100 (Eng. C.A.) at page
111:
... a void marriage is one that will be regarded by every court
in any case in which the existence of the marriage is in issue as
never having taken place and can be so treated by both parties
to it without the necessity of any decree annulling it ....
... a voidable marriage is one that will be regarded by every
court as a valid subsisting marriage until a decree annulling it
has been pronounced by a court of competent jurisdiction.
In the present instance the meaning to be
attributed to the word "spouse" as used in para
graph 60(b) of the Income Tax Act applicable to
the 1978 and 1979 taxation years is as the word is
used in the common language and that meaning is
a party to a marriage.
Therefore the existence of the marriage is in
issue in this appeal.
The common law grounds of nullity are:
(1) a prior existing marriage;
(2) the parties are within the prohibited degrees
of consanguinity or affinity;
(3) insanity at the time of marriage;
(4) lack of consent induced by fraud, force and
the like;
(5) impotence, and
(6) where the parties are not respectively male
and female.
The list is for the purpose of illustration and is
not intended to be exhaustive.
Here the marriage between the taxpayer and
Janet Anderson was void ab initio by reason of a
prior existing marriage between Janet Anderson
and William Witty II which had not been validly
dissolved.
This is confirmed by the declaratory judgment
given by Mr. Justice Maloney on December 6,
1977 and recorded on December 27, 1979.
Janet Anderson, who was a party with Irving A.
Taylor to a ceremony of marriage was already
married and either party is entitled to a decree of
nullity ex debito justitiae. A court has no discre
tion to refuse the decree.
As I have indicated before the existence of a
previous marriage (as is here the case) renders the
subsequent marriage an absolute nullity. The mar
riage is void ab initio and the decree is purely
declaratory. There would have been no impedi
ment to the taxpayer contracting a subsequent
legal marriage and if he had that wife would have
been his legal "spouse" from which it follows that
Janet Anderson was not.
Even if the marriage had not been void but
merely voidable, which is not the case in my view,
then the second operative portion of the judgment
of Mr. Justice Maloney whereby the marriage
between Janet Anderson and Irving A. Taylor
solemnized on November 9, 1969 was declared to
be void would have retroactive effect to that date.
With respect to a voidable marriage Pennycuick
J. said in Re Rodwell (deceased), [1969] 3 W.L.R.
1363 (Ch.D.) at page 1366:
The position is that the moment the decree of nullity became
absolute [and this I take to be upon pronouncement] then in
the eye of the law she never had been married. [Again the
words in brackets are mine.]
For the foregoing reasons I find it impossible to
say that Janet Anderson had ever been married to
the taxpayer from which it follows that she was
not his "spouse" within the meaning of that word
as used in paragraph 60(b) of the Act.
I cannot refrain from expressing concurrence in
the submission made by counsel for the defendant
that there is an apparent inequity when he paid
interim alimony to Janet Anderson which he was
obligated to do by a valid court order to which
failure to comply would render him liable to con-
tempt and yet he is precluded from claiming the
amounts so paid as a deduction for income tax
purposes.
The complete answer is in the stock expression
that there is no equity in a taxing statute. A taxing
statute shall receive the same interpretation as any
other statute.
The principle expressed in Partington v. The
Attorney-General (1869), Law Rep. 4 H.L. 100
(H.L.) is that if the person sought to be taxed
comes within the letter of the law then he must be
taxed no matter how great the hardship or the
inequity may appear to be to the judicial mind.
There must be adherence to the word of the
statute.
Confirmation of the correctness of the construc
tion which I have concluded must be ascribed to
the meaning of the word "spouse" in paragraph
60(b) in the Income Tax Act, applicable in the
1978 and 1979 taxation years, can be found in the
remedial action which Parliament has taken in
providing an extended definition of the word
"spouse" applicable to paragraph 60(b) by the
enactment of section 130, c. 140, S.C. 1980-81-82-
83 and by applying the rule in Heydon's Case
(1584), 3 Co. Rep. 7a; 76 E.R. 637 (K.B.D.), to
that subsequent legislation.
When any case may be doubtful upon a statute
four things can be gleaned from Heydon's Case
(supra at fo. 7b) which are to be discerned and
considered:
(1) the state of the law before the enactment,
(2) what was the mischief and defect which the
prior existing law did not provide,
(3) what remedy Parliament provided to cure
the defect, and
(4) the true reason for the remedy.
Then the office of all judges shall be to make
such construction as shall suppress the mischief,
advance the remedy, suppress subtle inventions
and evasions for continuance of the mischief and
to add force and life to the cure and remedy
according to the true intent of the makers of the
Act, pro bono publico.
In order to ascertain the true rule of construc
tion to find the meaning of a term in a statute I
can think of no better rule to apply than the
well-known rule in Heydon's Case and to repeat
what Lindley M.R. said In re Mayfair Property
Company, [1898] 2 Ch. 28 at page 35:
In order properly to interpret any statute it is as necessary
now as it was when Lord Coke reported Heydon's Case to
consider how the law stood when the statute to be construed
was passed, what the mischief was for which the old law did not
provide, and the remedy provided by the statute to cure that
mischief.
Subsection 252(3), as enacted by the legislation
indicated above extending the meaning of
"spouse" and "former spouse", reads:
252... .
(3) For the purposes of paragraphs 56(1)(b) and (c), 60(b)
and (c) and 146(16)(a), sections 56.1 and 60.1 and subsection
73(1), "spouse" and "former spouse" includes a party to a
voidable or void marriage, as the case may be.
Parliament must have become apprised of the
want of equity or justice in precluding a party to a
void or voidable marriage from deducting interim
alimony ordered to be paid by that party in the
amounts paid as ordered in computing taxable
income.
That was the mischief which this legislation
remedied and it was remedied by extending the
definition of spouse to include a party to a void or
voidable marriage.
Had the contrary been the case there would be
no need to provide a cure to the law as it previous
ly existed. It was remedial legislation and not
merely clarification.
Unfortunately for the defendant in this appeal
the remedial legislation permitting a party to a
void or voidable marriage to deduct for income tax
purposes interim alimony ordered by a court to be
paid is applicable to the 1982 and subsequent
taxation years and does not avail the defendant.
For the foregoing reasons the appeals are
allowed but, in the circumstances, without costs to
Her Majesty.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.