Marriage Breakdown - pension split
- Thread starter bigcletus
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It's not taxable, but that means squat in court, her lawyer WILL make a move on it, it's their job to take everything they can from you.
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My ex and I had adopted a child through Alberta social services which pays a monthly amount to assist in the raising of the child until they are 18 (to offset the costs of any developmental issues associated with the reason the child was up for adoption). Anyway, that money is a benefit and it's not taxable. When we split I remained the custodial parent for my son but that didn't stop her from going after half the money even though she lives out of Province now and he only visits her twice a year.
I'd be surprised if VAC money is immune.
I'd be surprised if VAC money is immune.
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Just tell your wife's lawyer that she's welcome to half the payout if she'll be willing to be injured half as badly.
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CANLII is your friend for this. Lump sum payments under the NVC are not part of the marital property and cannot, in Manitoba be included in the Divorce Settlement. However if you are in receipt of a Pension pre - NVC your spousal payment will be terminated upon seperation and the amounts received for the children under 18 must be used for the benefit of the children. Therefore courts will frequently request of the person receiving the pension to agree to remit that amount of the child benefit to the custodial spouse. This is usually clearly defined in the agreement as a paragraph seperate from other child support issues based on other income. See this example from Manitoba: Kramchynsky v. Kramchynsky, 2013 MBQB 56 (CanLII) — 2013-03-05
The other answer to this question is yes it is and will very greatly from Province to Province. It is important to note that if you have received a lump sum payment under the NVC and it is placed in your joint account it is part of the communal marriage property. If you have applied and are awaiting a decision it would normally not be part of the property because it does not actually exist yet.
The other answer to this question is yes it is and will very greatly from Province to Province. It is important to note that if you have received a lump sum payment under the NVC and it is placed in your joint account it is part of the communal marriage property. If you have applied and are awaiting a decision it would normally not be part of the property because it does not actually exist yet.
It was for me under old charter but NVC???? If you don't tell her and you do not sign release to allow disclosure from VAC, spouse will never know. The only way they could find out is by subpena to VAC to disclosure. This is unlikely because it would be like asking for medical information. Not sure, but my advise (if this is what you want), keep your cards close to your chest until you are compelled by the court to do so.
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Just to follow up from my last post. You need to have a lawyer to deal with this no matter how amicable your sepeeration may be. As a general rule case law supports that the Veterans Pensions and a Awards are not communal assets of the marriage but with out sound legal advice you can end up being in a dificult position. When money is on the table an amicable seperation can become very less amicable and contentious.
Here are some further cases and an extract from one of them:
Ste-Marie v Ste-Marie, 2013 NBQB 375 (CanLII)
http://canlii.ca/t/g2dd4
Irving v. Irving 1988 CanLII 3404 (BC SC), (1988), 17 R.F.L.(3d) 318 (B.C.S.C.)
Burry v Burry, 2005 NLTD 184 (CanLII)
http://canlii.ca/t/fsxdr
Extract from the Burry v Burry Case
Veteran's Disability Pension
[32] As stated earlier, s. 18(c) of the Family Law Act excludes a personal injury award, except that part representing compensation for economic loss, from being a matrimonial asset which is subject to division. The payment of a disability pension under the Veterans Act is compensation for a disability incurred by a war veteran in the service of their country. As in other jurisdictions, such as Ontario where "damages or a right to damages for personal injuries ... or the part of a settlement that represents those damages" are excluded from being divisible property, the exclusion sections have generally been interpreted in this province in a manner that reflects the remedial nature of the property division statutes. In deciding what is a personal injury award, I would first of all agree with the comments of Aitken, J., at para. 47 in Hamilton v. Hamilton,[2005] O.J. No. 3050; [2005] O.T.C. TBEd. JL.082 (Sup. Ct.) where she stated:
"Although I would word this statement slightly differently to recognize that the Family Law Act does not call for the sharing of particular assets per se, but instead calls for the sharing of the value of certain assets owned at separation, after deduction of the value of certain assets owned at marriage, I would agree with Misener, J., that the Act restricts the automatic sharing to the increase in value [See Note 6 below] that occurred during the marriage but only in regard to assets, the acquisition, retention or maintenance of which bears some relationship to the partnership that the marriage is said to create." (my emphasis)
There Aitken, J., was referring to the decision of Misener, J., in Pallister v. Pallister reflex, (1990), 29 R.F.L.(3d) 395 (Ont. Gen. Div.) where a disability benefit paid related to a disability incurred while serving in the Armed Forces prior to marriage was held not to be property subject to division.
[33] Aitken, J., in Hamilton also referred to a number of other cases where disability payments were being paid or there was some entitlement to them by one of the spouses. She made the following comments which I find apply to the legislation in this Province as well:
"I agree with Misener J. in Pallister, supra that in interpreting 'property' in s. 4(1), one must keep in mind the purpose of Part I of the Family Law Act. As stated in M. v. H. 1996 CanLII 2218 (ON CA), (1997), 25 R.F.L.(4th) 116 (Ont. C.A.) affd 1992 CanLII 106 (SCC), [1992] 2 S.C.R. 3, 171 D.L.R.(4th) 577 (S.C.C.), the purpose of the Act is to provide for the equitable resolution of economic disputes that arise when intimate relationships between individuals who have been financially interdependent break down. When introducing the Family Law Act in the Ontario Legislature on June 6, 1985, the Honourable Mr. Pope explained that this would be done in the following fashion: 'under the bill, the value of all property acquired by spouses during their marriage, other than gifts, inheritances and other very limited exceptions, will be shared equally between the spouses on marriage breakdown or on the death of one of them'. [See Note 12 below] Clearly, the goal of the legislature was to have the parties jointly benefit from their combined financial growth between the period of marriage and separation, with certain exceptions as set out in s.4(2). The exceptions give an indication of what the legislature was trying to achieve through the equalization payment scheme.
"One exception keeps alive the ability of spouses to negotiate their own agreement as to what is included or excluded from net family property. Other exceptions relate to property such as gifts, inheritances and life insurance proceeds that 'dropped in their laps' and are not the result of any contribution the spouse made to the marriage partnership. Another exception relates to property acquired as a result of a personal loss to one of the spouses that again does not relate in any way to the marriage partnership. These exceptions highlight the intention of the legislature to keep separate the property of either spouse that bears no relationship to the roles or responsibilities assumed by the spouse during marriage or to the contributions made by the spouses to the welfare of the family as a whole. The value of property owned at the valuation date that the spouse has for totally personal reasons, and not through any direct or indirect contribution of the other spouse in any form whatsoever, remains excluded from net family property. Similarly, the value of property acquired by either spouse after separation, and in which the spouse had no clear vested or contingent interest as of the valuation date, does not get included in net family property because it cannot be said to flow from a partnership which no longer exists.
"Future disability benefits to be paid following the valuation date fall outside the concept of net family property for many reasons. They are paid due to an on-going personal characteristic or condition of a spouse, namely that spouse's state of health and impairment. Entitlement must be earned each day after the valuation date through the disability continuing. In that sense the rights are created on a very current basis, they are not created in advance of the period for which they relate. Entitlement has not gelled as of the valuation date; there is no accumulation of benefits as of that date. Disability benefits are not payable to a spouse due to the joint contributions of both spouses in one form or other to the marriage partnership. Disability benefits are intended to replace income on an on-going basis, as and when the need for such an income replacement arises; they are not intended to be a form of savings available regardless of what the future holds. They exist to support the person who cannot work, and that person's dependents. They are of the same nature as the income that the person would earn, if not disabled. Just as we do not consider that a person owns on the valuation date his or her future employment or self-employment income not yet earned or the ability to earn that income, we should not consider that a person owns on the valuation date his or her future disability payments not yet earned or the ability to earn an income with the concomitant entitlement to receive the disability benefits. We should treat those future disability benefits just as we treat future employment insurance benefits, social assistance benefits, student loans, payments from health care insurance plans and the like. These are all potential income sources that are payable if certain conditions exist. All of these potential income sources following the valuation date will be relevant to the issue of support, just as the earned income of the parties will be relevant to the issue of support."
[34] While there dealing specifically with a private disability plan and future payments, I find the reasoning of Aitken J. compelling with respect to the disability pension received by the husband in this case. In fact, a war veteran's pension has been found to be excluded property in Irving v. Irving 1988 CanLII 3404 (BC SC), (1988), 17 R.F.L.(3d) 318 (B.C.S.C.) and in other decisions. I would note, however, that while the war veteran'spension is not a matrimonial asset in my opinion under our legislation, the income generated from it will be considered in the assessment of any spousal support request.
Here are some further cases and an extract from one of them:
Ste-Marie v Ste-Marie, 2013 NBQB 375 (CanLII)
http://canlii.ca/t/g2dd4
Irving v. Irving 1988 CanLII 3404 (BC SC), (1988), 17 R.F.L.(3d) 318 (B.C.S.C.)
Burry v Burry, 2005 NLTD 184 (CanLII)
http://canlii.ca/t/fsxdr
Extract from the Burry v Burry Case
Veteran's Disability Pension
[32] As stated earlier, s. 18(c) of the Family Law Act excludes a personal injury award, except that part representing compensation for economic loss, from being a matrimonial asset which is subject to division. The payment of a disability pension under the Veterans Act is compensation for a disability incurred by a war veteran in the service of their country. As in other jurisdictions, such as Ontario where "damages or a right to damages for personal injuries ... or the part of a settlement that represents those damages" are excluded from being divisible property, the exclusion sections have generally been interpreted in this province in a manner that reflects the remedial nature of the property division statutes. In deciding what is a personal injury award, I would first of all agree with the comments of Aitken, J., at para. 47 in Hamilton v. Hamilton,[2005] O.J. No. 3050; [2005] O.T.C. TBEd. JL.082 (Sup. Ct.) where she stated:
"Although I would word this statement slightly differently to recognize that the Family Law Act does not call for the sharing of particular assets per se, but instead calls for the sharing of the value of certain assets owned at separation, after deduction of the value of certain assets owned at marriage, I would agree with Misener, J., that the Act restricts the automatic sharing to the increase in value [See Note 6 below] that occurred during the marriage but only in regard to assets, the acquisition, retention or maintenance of which bears some relationship to the partnership that the marriage is said to create." (my emphasis)
There Aitken, J., was referring to the decision of Misener, J., in Pallister v. Pallister reflex, (1990), 29 R.F.L.(3d) 395 (Ont. Gen. Div.) where a disability benefit paid related to a disability incurred while serving in the Armed Forces prior to marriage was held not to be property subject to division.
[33] Aitken, J., in Hamilton also referred to a number of other cases where disability payments were being paid or there was some entitlement to them by one of the spouses. She made the following comments which I find apply to the legislation in this Province as well:
"I agree with Misener J. in Pallister, supra that in interpreting 'property' in s. 4(1), one must keep in mind the purpose of Part I of the Family Law Act. As stated in M. v. H. 1996 CanLII 2218 (ON CA), (1997), 25 R.F.L.(4th) 116 (Ont. C.A.) affd 1992 CanLII 106 (SCC), [1992] 2 S.C.R. 3, 171 D.L.R.(4th) 577 (S.C.C.), the purpose of the Act is to provide for the equitable resolution of economic disputes that arise when intimate relationships between individuals who have been financially interdependent break down. When introducing the Family Law Act in the Ontario Legislature on June 6, 1985, the Honourable Mr. Pope explained that this would be done in the following fashion: 'under the bill, the value of all property acquired by spouses during their marriage, other than gifts, inheritances and other very limited exceptions, will be shared equally between the spouses on marriage breakdown or on the death of one of them'. [See Note 12 below] Clearly, the goal of the legislature was to have the parties jointly benefit from their combined financial growth between the period of marriage and separation, with certain exceptions as set out in s.4(2). The exceptions give an indication of what the legislature was trying to achieve through the equalization payment scheme.
"One exception keeps alive the ability of spouses to negotiate their own agreement as to what is included or excluded from net family property. Other exceptions relate to property such as gifts, inheritances and life insurance proceeds that 'dropped in their laps' and are not the result of any contribution the spouse made to the marriage partnership. Another exception relates to property acquired as a result of a personal loss to one of the spouses that again does not relate in any way to the marriage partnership. These exceptions highlight the intention of the legislature to keep separate the property of either spouse that bears no relationship to the roles or responsibilities assumed by the spouse during marriage or to the contributions made by the spouses to the welfare of the family as a whole. The value of property owned at the valuation date that the spouse has for totally personal reasons, and not through any direct or indirect contribution of the other spouse in any form whatsoever, remains excluded from net family property. Similarly, the value of property acquired by either spouse after separation, and in which the spouse had no clear vested or contingent interest as of the valuation date, does not get included in net family property because it cannot be said to flow from a partnership which no longer exists.
"Future disability benefits to be paid following the valuation date fall outside the concept of net family property for many reasons. They are paid due to an on-going personal characteristic or condition of a spouse, namely that spouse's state of health and impairment. Entitlement must be earned each day after the valuation date through the disability continuing. In that sense the rights are created on a very current basis, they are not created in advance of the period for which they relate. Entitlement has not gelled as of the valuation date; there is no accumulation of benefits as of that date. Disability benefits are not payable to a spouse due to the joint contributions of both spouses in one form or other to the marriage partnership. Disability benefits are intended to replace income on an on-going basis, as and when the need for such an income replacement arises; they are not intended to be a form of savings available regardless of what the future holds. They exist to support the person who cannot work, and that person's dependents. They are of the same nature as the income that the person would earn, if not disabled. Just as we do not consider that a person owns on the valuation date his or her future employment or self-employment income not yet earned or the ability to earn that income, we should not consider that a person owns on the valuation date his or her future disability payments not yet earned or the ability to earn an income with the concomitant entitlement to receive the disability benefits. We should treat those future disability benefits just as we treat future employment insurance benefits, social assistance benefits, student loans, payments from health care insurance plans and the like. These are all potential income sources that are payable if certain conditions exist. All of these potential income sources following the valuation date will be relevant to the issue of support, just as the earned income of the parties will be relevant to the issue of support."
[34] While there dealing specifically with a private disability plan and future payments, I find the reasoning of Aitken J. compelling with respect to the disability pension received by the husband in this case. In fact, a war veteran's pension has been found to be excluded property in Irving v. Irving 1988 CanLII 3404 (BC SC), (1988), 17 R.F.L.(3d) 318 (B.C.S.C.) and in other decisions. I would note, however, that while the war veteran'spension is not a matrimonial asset in my opinion under our legislation, the income generated from it will be considered in the assessment of any spousal support request.
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The Ste-Marie v Ste-Marie case that I posted previously is a NB case. I strongly recommend you to read it all and then discuss with a family law lawyer who will provide you with the best advice possible on your specific circumstances. In NB the VAC Pension in some cases is considered a family asset and in others it is not.
Good luck with your case and I hope everything works out for you. Remember to get a lawyer and do not try to do it your self as you will probably end up on the short end of the stick.................
Good luck with your case and I hope everything works out for you. Remember to get a lawyer and do not try to do it your self as you will probably end up on the short end of the stick.................
I'm wondering the same thing. I remarried after the loss of my husband Jimmy. Fast forward 12 years and two children later, my soon to be ex now wants a piece of the survivors pension from VAC. Even though we work in the same place, make the same wage, and I have custody of the children, his lawyer wants to "gross up" the VAC pension and use this discrepancy in income to award him spousal support. After reading some of the case files, I'm still confused regarding the pension. My lawyer can't seem to find any information specifically relating to a Survivor's Pension. I called Veterans Affairs but they couldn't offer any help, if anything they found it bizarre anyone would want a share of a survivors pension.
When I first posted this inquiry, I had googled some case law and found that VAC pensions/awards ARE "shareable", even tho they are for personal disability. Speaking to my own lawyer a few years ago after a car accident, he told me that any money received due to the accident for injuries was NOT considered as "shareable". Strange that one is and one is not, both being for injuries/disabilities.
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Part of the problem with VAC Disability Awards and pre NVC Pension Awards is the specific wording of the legislation of the Province in which you are filing for divorce. As far as pre-NVC pensions are concerned the base amount is for the Veteran. There are supplemental amounts paid for a spouse and each child up to age 18. Therefore if it is properly explained by you to your lawyer and then by your lawyer to the court the Veterans Disability Pension is not a divisible asset of the marriage.
If you are in receipt of a Veteran's Disability Pension note that it is awarded under the authority of The Pension Act R.S.C, 1985, c, P-6 . Make special note of the following:
(1) No award shall be assigned, charged, attached, anticipated, commuted or given as security, and the Minister may refuse to recognize any power of attorney granted by a person with reference to the payment of an award.
(1.1) An award is exempt from seizure and execution, either at law or in equity.(My comment: very, very significant wording)
(2) Notwithstanding subsection (1), where any provincial or municipal authority in a province pays a person any advance, assistance or welfare payment for a period that would not be paid if a pension or an allowance under this Act had been paid for that period and subsequently a pension or an allowance becomes payable or payment of a pension or an allowance may be made under this Act to that person for that period, the Minister may deduct from any retroactive payment of pension or allowance and pay to the government of the province an amount not exceeding the amount of the advance, assistance or welfare payment paid, if that person had, on or before receiving the advance, assistance or welfare payment from the government of the province or the municipal authority, consented in writing to the deduction and payment.
Paragraphs 1 and 1.1 are very powerful statements that are not often understood. In fact the Pension issued pre-NVC for injuries is within Canadian Law the only pensions or awards that are completely beyond the reach of any court and any level in Canada.
Unfortunately most individuals in receipt of a Veteran's Disability Pension are not aware of these facts and do not make it aware to legal representatives when involved in litigation of family court issues.
For Ogilvie and for bigcletus I would make the suggestion that you re-visit the issues with your lawyers. Since I do not know which Province your divorce is taking place you need to talk with local counsel and make them aware of what the Act actually states.
Keep this in mind that under the pre-NVC Pension Act under the heading of Construction at paragraph 2 it states:
2. The provisions of this Act shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled or have died as a result of military service, and to their dependants, may be fulfilled.
If you are in receipt of a Veteran's Disability Pension note that it is awarded under the authority of The Pension Act R.S.C, 1985, c, P-6 . Make special note of the following:
(1) No award shall be assigned, charged, attached, anticipated, commuted or given as security, and the Minister may refuse to recognize any power of attorney granted by a person with reference to the payment of an award.
(1.1) An award is exempt from seizure and execution, either at law or in equity.(My comment: very, very significant wording)
(2) Notwithstanding subsection (1), where any provincial or municipal authority in a province pays a person any advance, assistance or welfare payment for a period that would not be paid if a pension or an allowance under this Act had been paid for that period and subsequently a pension or an allowance becomes payable or payment of a pension or an allowance may be made under this Act to that person for that period, the Minister may deduct from any retroactive payment of pension or allowance and pay to the government of the province an amount not exceeding the amount of the advance, assistance or welfare payment paid, if that person had, on or before receiving the advance, assistance or welfare payment from the government of the province or the municipal authority, consented in writing to the deduction and payment.
Paragraphs 1 and 1.1 are very powerful statements that are not often understood. In fact the Pension issued pre-NVC for injuries is within Canadian Law the only pensions or awards that are completely beyond the reach of any court and any level in Canada.
Unfortunately most individuals in receipt of a Veteran's Disability Pension are not aware of these facts and do not make it aware to legal representatives when involved in litigation of family court issues.
For Ogilvie and for bigcletus I would make the suggestion that you re-visit the issues with your lawyers. Since I do not know which Province your divorce is taking place you need to talk with local counsel and make them aware of what the Act actually states.
Keep this in mind that under the pre-NVC Pension Act under the heading of Construction at paragraph 2 it states:
2. The provisions of this Act shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled or have died as a result of military service, and to their dependants, may be fulfilled.
@OP....Prairefire has given you some wonder feedback references above, with snippets from the cases. By default as soon as Lawyers hear 'Military', the word pension is bound to come out of their gobs within minutes. I got my pension estimate from Ottawa (took less than 4 weeks) at the time, and just waited for the ex to come forward with hers, which wasn't forthcoming for obvious reasons.
DO NOT for one second think it's just you that needs to table financials, the ex/stbx needs to do exactly just that as well. If she is not doing that, then you can expect your matter to drag on forever, as some people can relate to out there. Something that should tale 1yr ends up taking years thanks to lawyers looking to rack up your retainer.
My matter never got to trial before it got resolved i.e. divorce granted and a final order on all matters signed. The Judge lambasted my ex at one point and I quote..."Ms, what did you think was going to happen today, that you just come here to ask for stuff, and I give it to you...where is your pension estimate?"
Lesson learned from my whole experience even though I was lucky to keep my pension, to not have to pay alimony / spousal support.......never hook up with a person who earns significantly less than you (potential disparity in income alimony), and even worse a person who doesn't work (automatic case for alimony). You will be digging your own grave if you do
Pension split is part of the division of asset and will be highlighted in your financials along with joint accounts, credit cards, chequing, RRSPs, etc
DO NOT for one second think it's just you that needs to table financials, the ex/stbx needs to do exactly just that as well. If she is not doing that, then you can expect your matter to drag on forever, as some people can relate to out there. Something that should tale 1yr ends up taking years thanks to lawyers looking to rack up your retainer.
My matter never got to trial before it got resolved i.e. divorce granted and a final order on all matters signed. The Judge lambasted my ex at one point and I quote..."Ms, what did you think was going to happen today, that you just come here to ask for stuff, and I give it to you...where is your pension estimate?"
Lesson learned from my whole experience even though I was lucky to keep my pension, to not have to pay alimony / spousal support.......never hook up with a person who earns significantly less than you (potential disparity in income alimony), and even worse a person who doesn't work (automatic case for alimony). You will be digging your own grave if you do
Pension split is part of the division of asset and will be highlighted in your financials along with joint accounts, credit cards, chequing, RRSPs, etc
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Hindsight is 20-20, but a pre-nup is a wonderful thing...I got burned on the first marriage, won't make the same mistake this time around.
VAC payout money was received about 2 weeks ago, and I'm in the process of getting a divorce. I live in Ontario and the money hit the bank 7 months after the date of marital breakdown. Numerous people I have spoken with have said that it is exempt from asset division and my lawyer has said that she will maintain that it is exempt. I am nervous however that my ex will still try to challenge for half. At this point in time she doesn't know about it and I have told my lawyer that I would rather her not know about it if at all possible.
I would rather talk to someone via PM who has gone down this road who has direct experience and knowledge.
I would rather talk to someone via PM who has gone down this road who has direct experience and knowledge.
I would suggest searching canlii for specific cases regarding this.
Also, http://www.ottawadivorce.com/ has a fantastic forum full of information.
At some point you have to complete the asset/liability information and it will have to be disclosed. Possibly exempt but you can't hide the info.
Also, http://www.ottawadivorce.com/ has a fantastic forum full of information.
At some point you have to complete the asset/liability information and it will have to be disclosed. Possibly exempt but you can't hide the info.
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Please go to this link for some answers: https://army.ca/forums/threads/114479/post-1298446.html#msg1298446
I have previously quoted some case law that affects cases similar to yours. Please read through the whole thread and the references. I also strongly recommend that you bring these references to the attention of your lawyer. It is very important that you provide your lawyer with as much relevant information as is possible. One of the most important arguments to be made to the court is that this is not a marital asset but an award for injuries that affect your quality and quantity of life as a result of service to the nation. It is not as a result of a shared risk but rather a risk that you personally and not jointly undertook as part of the unlimited liability of service.
Good luck with everything, and I wish you well.
I have previously quoted some case law that affects cases similar to yours. Please read through the whole thread and the references. I also strongly recommend that you bring these references to the attention of your lawyer. It is very important that you provide your lawyer with as much relevant information as is possible. One of the most important arguments to be made to the court is that this is not a marital asset but an award for injuries that affect your quality and quantity of life as a result of service to the nation. It is not as a result of a shared risk but rather a risk that you personally and not jointly undertook as part of the unlimited liability of service.
Good luck with everything, and I wish you well.
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