How is the FLA sect 4(2)3 and 5 is interpreted - WCB retraining/damages excluded

[ddol1]

This post is discussing and trying to understand/validate the section 4 Property within the Fmily Law Act (actually sect 4(2)3 and 5).

First is Compensation For Retraining Following a serious injury under WCB and second, my lawyer is under the impression (but has asked me to provide the proof under family law) that any damages (retraining, pain and suffering, etc.) that I may have recieved must be in my possession today and of course kept seperate as of the date of valuation. What I am reading in the FLA Sec 4,5,6 is there definately are damages that are excludable but never do they imply that these damages must be in my possession 20 years later - what I think they do imply is that these damages are excludable and as such are as owned on the date of marriage - are no longer considered in the calculation of my net family property, these damages are in effect property owned at marriage and then are deductable from my net family property....

What I believe my lawyer is being influenced is the sect 4(2)5 which reads:
5. Property, other than a matramonial home, into which property referred to in paragraphs 1 to 4 can be traced.
> I believe this is where my lawyer is being influenced. But I read this as should the person take any of the monetary damages and elects to purchase any other object, say a painting, then the painting must be easily tracable to the damages made excludable under #3 the previous point which states.....
3. Damages or a right to damages for personal injuries, nervous shock, mental stress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.

This is the only way I read this, over and over in every case, they never indicate it must be in possession and kept seperate - it is just deducted from my net family property at the end which will lower this number and when compared to my Ex it will cause her to have to pay a larger equalization payment (this is how the disabled spouse retains the benefits afforded him through the various payments made in the form of damages as the years went by).

Is this not the way these damages for personal injuries are handled in 4(2)3????

Following is my particulars which falls under the above....(looking for validation - and move forward
Very similar in principle to a major accident and the WCB offering the medical assisstance and if deemed severe enough to cause measurable disability a payment is made to the worker for damages under pain and suffering. This type of payment falls under property excluded under 4(2)3 of the family law act but there is a second type of damage in which the extent of injury leaves the worker uninsurable under the WCB, unable to do the work trained for medically so there is compensation for retraining and a second which is damages resulting from a measurable wage loss (the inability, as a direct result of the injury, even following a suitable retraining program, to earn a wage that equals that of the wage earned before the accident occured).

This I have found only one case in Vanderaa v. Same (1995) but for the latter, there is money exchanged in a form of a payment, paid biweekly and it tops up the employment income which is shareable. This payment is or was in this case deemed as damages by the judge (which the court deems these damages as completely personal to the recipient, which can't be truely shared with any other individual no matter how close the relationship) which in essence is the difference in your current income and that which you earned before the accident is exempt or excluded under the Section 4(2)3.

So I look to some validation for my lawyer to use that indeed damages for retraining following a major injury, surgeries that meant I could no longer do the work to which I was trained, going back to school, in my case College is indeed damages that under 4(2)3 and the value of this is excludable property, property which I can estimate as the WCB paid the school directly for tuition and then all my expenses which I could total. This came fairly close to the letter of acceptance which also indicated the cost for this retraining program.

[OrleansLawyer]

never do they imply that these damages must be in my possession 20 years later

To address this part of a thoughtful post:
Your net family property contemplates only two dates - date of marriage and date of separation. To calculate net family property, you subtract the net worth at marriage from net worth at separation.

When calculating your assets at separation, in accordance with s. 4(2) of the Family Law Act, certain property owned on the valuation date may be excluded. As you point out, s.4(2)5 states that property into which other excluded property can be traced is excluded; however, this tracing must produce property on the valuation date for it is the valuation date value that is excluded.

Example 1: Inherit $10,000; buy stock with it. On valuation date, the value of the stock could be excluded as it is traced from the inheritance.

Example 2: Inherit $10,000; buy stock with it. Cash out the stock and use it to live, prior to the separation date. No property remains to be excluded and thus no effect on equalization.

If the money does not exist in any form at the valuation date, it is gone.

[Pursuinghappiness]

If the money does not exist in any form at the valuation date, it is gone.

Well said Orleans....but its the 10th time the OP's been told the same thing. The horse is long dead, however, he'll continue to beat it.

Its unconscionable to me how someone would attempt to recover government money that was used to keep a roof over his and his own childrens' head in this circumstance.

[ddol1]

OrleansLawer; Thank you so very much!! This is actually the first posts that I have actually managed to technically put together using the FLA laws directly. I shall thank you in advance here should you consider to review what are my three main issues that remain. I apologize for the length I admit putting the pieces together has been a challenge for me. There are so few individuals that have an understanding of the disability issues and most importantly how they are applied - which are not always straight forward or black and white. Even the paper briefs published, there is an acknowledgement that many lawyers do not understand how rulings apply and to a lesser degree it shows up in the decisions themselves if for no other reason than the inconsistancies in final rulings to date.

I have tried hard to find the written answers with only limited success - there is not that much out there. Ultimately, at my lawyer's request, I hope to provide him with the best materials that at least I can understand (which will help me understand the whys and plainly move forward in my life with no looking back or what ifs) and to be able to present the reasearch to which will benefit my case and natuarally limit my lawyer's reseach hours - He as admitted that he has more than an interest in this area of family law but I still have been able to provide him with knowledge that he did not have.

If I May ask a couple of questions based on what you wrote...

Your post really did fill in a very big hole for me in the way exclusion works in damages being applied at the valuation date value. This is what actually enables any increase in value, say through interest or captial gains to be taken into consideration, or losses to the degree it was consumed "over the years".

Question Regarding Seperation and comingling of damages paid to the disabled spouse:

I do have one last gap in understanding this topic, which is the issue of damages, once recieved, and if there is the strong requirement of maintaining the damages completely seperate from your spouse and the possible comingling of funds would remove its special status as in the way Inheritance is applied in the FLA. Once the damages are comingled in any way, that portion of the damages will always be comingled and the special status is lost -- Or, since this requirement is never brought up in any of the rulings and papers that I have discovered, the damages paid not once was comingled, or it is not discussed as these type of damages do not lose their special status and, as a consequence, will be able to be excluded from the disabled party's net family property totals as long as the damages can be traced back to the original payments.

Using your example; When it comes to the damages for the personal injuries and other general damages, should the $10,000 investment, for any period of time, be placed in both spouses names or an item purchased be placed in both spouses names that the funds can be easily traced to the damages awarded to the injured spouse would they or it still hold the excluded status afforded under 4(2)3??

to PH: The link here is one of the better if not the best papers on the subject of Disability Benefits and Family Law - it does bring forth some excellent understanding to the real consideratons in determining application in Family Law and why. The evaluations within the document actually do not consider dates, except for determining before or after the date of marriage or valuation, or even taking from one's family as she so strongly believes. This I learned early on, the date of the accident and the dates of the marriage do not matter with the disability damages - this has been a long marriage. that is ok.

http://www.pension.ca/Disability%20Benefits%20&%20FL.pdf

Question 2: The accident in question actually occurs before the date of marriage. (This is actually my case) Important in that this may make many issues very much simplified as damages for accident/injuries before the date of marriage is not part of the marriage what so ever.

As I read CANLII cases, I never found the right rulings to understand how this would be likely decided - I am not sure if you can guide or even "translate" the rules associated with the damages type payment from my WCB accident - the day that would change my life - so given the following:

My uncertainty has to to with the timing of my accident and then the timing of the various payments that would always tie back to the original date of the accident, which actually happened before we got married - not much but it was still before the marriage, so with the following dates:
date of accident march 1987
date of marriage June 1987
the first of three surgeries that were all specifically refered to the accident date were in 1988, followed with the next in 1989 and 90. These surgeries generated the general damages, on top of the income type payments, with each tied back to the date of the original accident before the marriage but were paid during the period between the date of marriage and the valuation date some 25 years later.

(My actual question #2)
With the date of accident actually before the date of marriage, would the above damage awards directly tied to the accident which did occur prior to the marriage, actually be considered as property owned on the date of marriage as well because they were in fact paid for that reason?? No further analysis required? (I admit I am covering these issues the best I know how so that should the judge in my case rule differently - the judge can be provided the best information possible.)


The final issue which I do not understand, I understand the damage award is real, it had value then and we both benefited during the marriage a great deal, and now on valuation I would assume there is value as discussed here, but how could a certain value be determined today from something that is not tangiable?? Although this judge will allude below to it having value that is excludable under 4(2)3?

This I began to inquire in The Vanderaa v Vanderaa in the original post; (there are very few CANLII cases that deal with disability issues to begin and then the type and details are similar but not the same type of pension or other details or payments are different - it makes it near impossible to the author or even the one case where Justice C. Aitken, in the Hamilton case, went to great lengths to review these various cases one by one in his decision however even then this judge stopped at the point where the cases under his review did not compare to his ruling at hand - let alone my circumstance.)

http://www.pension.ca/Disability%20Benefits%20&%20FL.pdf
OrleansLawer; I have added the link above, repeated here, only to help me ask you what I tried in my original post but failed, or at least did not do it very well. It does relate to the 4(2)3 section and the damages that can be awarded. Specifically page 20, begining half way down the page:

"He (Justice Leitch) went on to say, "In my view there is a distiction between compensation for retraining, rehabilitation or loss of competitive advantage and damages resulting in measurable wage loss. The first cateogory of damages is personal and is of the nature meant to be excluded by 4(2)3. The latter cateogory is not - completely personal to the recipient...." (this latter cateogory being income replacement which is shareable property) But from what you have taught me, how can the value of this type of damages be accounted for at the date of valuation?

This is the one written case that the judge makes reference to the exclusion of damages alone (not the pain and suffering but the other tangible damages that can occur, is not related to income which would be shared). It does bring up the specific, at least to my circumstance, a significant compensation for the retraining - which does have a value at least at the time. At the time of my accident I had already invested, even before the marriage, a significant amount in education and later in the apprenticeship to obtain my final certification. It was for this reason that my offer for damages in the form of retraining actually approached a significant sum approaching $250,000 with a portion that was shareable going towards income replacement during the course of study.

My question would be: How does this type of Damage get ruled on in the end? I was given letters of acknowledgement and estimated costs to complete the retraining but this is not a direct monetary award as they paid all my expenses and covered all the fees and whatever tuition costs were required - my job was to do the best I could and move forward.....

[Pursuinghappiness]

Simple questions:

1) Are you trying to retain disability funds that you already have in account from being subject to equalization?

or...

2) Are you trying to show that money she has in a bank account is directly related to your disability payments and should be returned to you?

or...

3) Are you trying to get an monetary award from her from marital property based on some overall calculation of what you received from the government? ie...you want all your injury money back even though its been used to provide a home and household goods?


If you're after 1) or 2)... you have an valid argument.

However, based your forensic accountant post...I'm led to believe you're trying for number 3 and not only is it highly improbable...its also highly immoral. You are trying to provide traceability for each dollar your ex used to maintain a home. (ie, she removed $5 from my bank account, bought a can opener and that can opener should be mine now or give me back my $5). It doesn't work that way...unless the money exists in partiality or entirety at the valuation date and can be traced to your disability....it is gone. It doesn't matter that the accident was prior...the money was merged into your marital funds (for a very long time) and she was given access to the accounts.

By your own admission, your ex used the disability funds that you freely gave her access to to maintain a household...THEY ARE GONE and they were used appropriately. They were used for the the maintainance of you and your children's household. What are you after here besides unjust entitlement?

You want all your money back for the duration of your marriage because you don't think you should have had to pay anything to maintain your own life? Your wife should have paid for all of that and you keep all your disability?



As for this:

My question would be: How does this type of Damage get ruled on in the end? I was given letters of acknowledgement and estimated costs to complete the retraining but this is not a direct monetary award as they paid all my expenses and covered all the fees and whatever tuition costs were required - my job was to do the best I could and move forward.....

What are your expectations here? The government pays for re-training based on your injury (interesting that they deemed you eligible for re-training in a new field...they considered you someone who could still work). Generally, they directly pay tuition, parking fees, etc associated with your re-training. How would this have anything to do with any type of equalization assets in your divorce? Did you go to any retraining classes?

[ddol1]

can you tell me how you break up your posts....I know I am famous for long! Serious took me 18 hours to get that last post to sound right, that and not having good days the last week..... Is it easy to do (the take a piece at a time and comment under what you quoted??

[Pursuinghappiness]

Serious took me 18 hours to get that last post to sound right,

I agree that if its taking you 18 hours a day to post, you shouldn't be doing it. Particurlarly not to ask the same question which has been answered in many ways, multiple times.

[ddol1]

ok here goes the old way..... (just up from a "face onto the keyboard crash - I really the hate those crashes.....)

I realize this is not a common area or knowledge.... and yes it is a struggle. why the last few posts? Because you may not recognize the post or info has been refined as I have been lucky enough to learn bits and pieces. The last couple of posts were very specific and yes I thought a person may just have come accross a piece of the puzzle or as I have definately noted of late - there are a large number of new members. I am at the point that I must deliver what I have to my lawyer, ready or not and here was a new member that understood the language and was a very important response from OrleansLawyer. I would not have it if "I didn't make the post which in fact has not been asked 10 times". I figured the next post which was a response to a knowledgeable member and he or she may have the knowledge and I made a large effort - to do the best to describe a very difficult, non common area of the FLA. This post took a long tiime, caused me to stop and think, look up or find information and having put it together go much further than the post here and I, given where I am the last month or so - I was quite pleased at my breakthrough and the quality of the question within the post.

Length of time it took me to post - this is again an assumption of what is or is not worth the effort of another? This is my life, things take me that long some weeks - it is very common for it to take 2 and even 3 hours to get a post done depending on my state. I have gotten past that many many years ago, everything takes me longer to do than "before". So I pose this to you, "Is it not better to spend 10 hours of your day to accomplish perhaps one hour's worth of value (complete the task) in whatever you are trying to accomplish than not making the effort at all?? If there is 10 hours of value that could be done, in 10 days the task will be completed so if this is the best you can do was your time and effort wasted in those 10 days?? Even today I haven't given up trying.....

From Your Main Post
ok here goes the old way - my response to your questions leads with >>>..... (just up from a "face onto the keyboard crash - I really the hate those crashes.....so here goes)

1) Are you trying to retain disability funds that you already have in account from being subject to equalization?
>>that would be yes (the pain and suffering damages - this made it into my actual rrsp account "back in the 80's" - rightfully is excluded.
or...

2) Are you trying to show that money she has in a bank account is directly related to your disability payments and should be returned to you?
>>No as far as can tell she has no account I have not been able to figure out
or...

3) Are you trying to get an monetary award from her from marital property based on some overall calculation of what you received from the government? ie...you want all your injury money back even though its been used to provide a home and household goods?
>>No. Money from the injury award, or otherwise were on top of any income type payments that were received and this is my only concern.

You appear to make reference to Income that went to anything to do with the family.... this is gone or was used like any other paycheck -- to pay the bills - not ever wanted any of that back. this is money that went right into the pay the bills account because we needed it and this is every penny of Income - all went to the joint account for her to pay the bills (this is the way it should be). there is no claim or argument with any of the Income, what it was used to buy for the family, or otherwise.

If you're after 1) or 2)... you have an valid argument.

>>>You missed a cateogory!
>>#4 we had three types of accounts that she did have the signing and the main one was the joint accounts to take care of the family expenses and we both had Retirement, RRSP Saving Accounts. My funds saved, having nothing to do with the kids, paying bills or the house but seperate, fair, excludable even (because it came from damages on WCB and later my mom inheritance which was seperated into my savings as soon as the different amounts came in)

What I have issue with is her actually removing funds from my retirementsavings, which did not go to the kids or paying house bills or anything else admirable. She even lied when asked about things - right to the end when for the first time in 3 plus years I "caught her" and I demanded a full accounting, i would go to the bank if needed - she asked for her divorce.

By your own admission, your ex used the disability funds that you freely gave her access to to maintain a household...THEY ARE GONE and they were used appropriately. They were used for the the maintainance of you and your children's household. What are you after here besides unjust entitlement?
>>>think is from above - not even looked at the 50k - that was our pay the bills and she had the authority to pay the house bills for 25 years - I do not care about that money.

You want all your money back for the duration of your marriage because you don't think you should have had to pay anything to maintain your own life? Your wife should have paid for all of that and you keep all your disability?

>>>no - I am looking for very specific funds, or savings that were set aside from very specific money that came in from the WCB and only from the couple of times that we received special damages "non income" money "we called it bonus unplanned money for deposits to me, cuz it did come from the disability sources". Fair retirement savings that in reality Karen was not only agreeing but she was the backbone to saving it for my retirement in the day and the saving in general throughout our marriage at least until 2006 she was always the saver. It was only after the seperation that the FLA was even known to exist - but it did confirm which funds will meet the exclusion requirements under the disability rules. And the last, along with the WCB amounts deposited earlier, was the cash deposit put directly into my seperate retirement account from my mom's Inheritance, another 30K in 2004 which again we both understood and even she acknowledged it was mine to do with - it was one of the rare bank transactions I did as she gave me the account # on a piece of paper(It was actually my retirement account!) and I hand delivered the main inheritance check to the bank for deposit myself...

Not sure if this actually clicks, is hard to describe, what has been brought up above up to now and again what will follow -- but it all is money that did not take anything away from the family, kids, house, her and in a way me at the time as well as it just went right into the retirement fund for the retirement many years in the future. The family came first in my life - always. Needed to save for retirement too - nothing wrong with that. She has her retirement savings as well. This was mine. Why did she do this - I actually do not know.

[Pursuinghappiness]

>>>You missed a cateogory!
>>#4 we had three types of accounts

It makes zero difference how many accounts you have unless the money at valuation date exists and can be traced to your disability payments. You can have 10 accounts...doesn't matter...particularly if you gave her access to all of them.

I find it extremely interesting though...that her retirement savings that you claim was kept in her account, for her retirement, would be subject to equalization...but you want all of yours.

As for the inheritance. I get that you want it kept separate but if it was mingled with the marital funds...it was mingled and is gone...and since you had an extremely long marriage....that sounds pretty reasonable.

What I have issue with is her actually removing funds from my retirementsavings, which did not go to the kids or paying house bills or anything else admirable.

Same answer applies here.

If the funds that you claim she took exist at valuation date and you can trace them to your disability payments they are exempt from equalization.

I'm assuming the monies are gone...and did you ever consider that your bills exceeded the amounts of working income she had? Is it a possibility that she used extra funds (cause you were zoned out of it on prescription drugs and she had to handle all the household and kids interests) because she couldn't cover the expenses of the household solely by her own means?

Your original premise is that she took these monies and invested them unwisely...but also claimed that she had access to the account. I'm confused as to why you gave her access to your RRSP account, for your use only if you were planning to do nothing with the monies in it except save it exclusively only for your use and wanted it never to be touched, ie. utilized in a cash flow shortage or invested. I just find that really hard to believe or understand because there would be zero reason for her to have access in the first place in that circumstance.

It sounds like you're trying to prove some type of fraud and personally, I just don't see it at all. I see a woman who was trying to manage a household and work with an out-of-commission husband. She might have spent a little too much...or invested unwisely...but did she steal from you? I don't hear even you saying that unless she was illegally signing your name or there's some relevant detail you left out.

And even if true, if the money is gone...you gave her account access...so really don't have much of a leg to stand on.

This is just my opinion, however, I'm not a lawyer. If your attorney suggests that you keep pursuing this with a forensic accountant then its your dime. Good luck with that.

[ddol1]

PH I actually really didn't mind answering a few misundertood genuine questions more to your benefit but I am just checking - did you manage to read the link? This would have or should have helped you a great deal.

I have to ask how did you ever manage to translate the funds were deposited directly into my seperate account, even with my walking over to the bank to do it myself, into comingled funds?????? I really have tried -