BC Personal Injury Settlement Excluded Property lawyers and MacLean Law, summer law student Fraser MacLean, have a passion for helping people move forward with their lives. Our BC Personal Injury Settlement Excluded Property lawyers understand that going through a family separation or suffering a personal injury in a BC vehicle accident are amongst life’s most stressful events. Our Vancouver, BC family law lawyers are top rated* and we are focused on helping our family law clients move forward.
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Many Vancouver family law clients wonder what happens to a settlement or award of damages when parties separate. Will the settlement or award of damages be excluded property with only the gain if any on the monies shared or family property to be divided equally?
BC Personal Injury Settlement Excluded Property Lawyers Explain How Injury Settlements Are Dealt With On Separation
Section 85 of the Family Law Act sets out what is excluded property. Excluded property is not shared like family property so how your personal injury award fits into family or excluded property really has an impact on how division of this asset will work.
BC Personal Injury Settlement Excluded Property Section 85 Law
BC Personal Injury Settlement Excluded Property explain to our clients that the division of a personal injury award depends on what parts of the award are at issue in a separation.
Section 85(1)(c) tells us the following about settlement awards being excluded property.
Section 85- Excluded Property.
1.c. A settlement or award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for (i) loss to both spouses or (ii) lost income of a spouse
Fraser MacLean, Summer Law Student Explains How It Works
Does this mean your settlement or award of damages will automatically be excluded property? Not so fast. In the case of Jackson v Jackson, 2015 BCSC 2114 the parties were married and had lived together for almost 40 years. The Husband who we will refer to as the Claimant, was involved in a major motor vehicle accident in 1997 suffering a traumatic brain injury along with injuries to his neck and back. The Claimant’s lawsuit was settled in 2001 and he was awarded $365,000 in damages. The Claimant did not have a breakdown of the total settlement proceeds of $365,000 as he was provided a lump sum cheque from ICBC without mention of awards for the specific damages sustained.
That same year in June 2001 the ‘Family Home’ was purchased. The home was purchased from settlement proceeds the Claimant received. The remainder of the settlement money was used for living and travel expenses. When the parties separated the Husband applied for an order that the house be sold, and that $100,000 be considered excluded property. The Claimant, who did not have a breakdown of the total settlement proceeds of $365,000 argued that part of the settlement “probably related to damages other than from lost wages or income”. Counsel for the Claimant had been unsuccessful in finding the information about what part of the settlement related to the claimed damages for loss of earnings.
BC Personal Injury Settlement Excluded Property Does Not Include Lost Income
In finding equal division of the family home the trial judge provided the following reasons:
11 I am satisfied that, if a spouse cannot show what portion of “compensation or injury or loss” relates to “lost income”, the entire portion “settlement” or “damages” should not be excluded from what will be considered as “family property”. In this regard, P. (A.A.) v. F. (G.T.), 2015 BCSC 662 (B.C. S.C.) dealt with a settlement in relation to a motor vehicle accident where a lump sum payment had been received. The conclusion reached was that the claimant had not demonstrated that a portion of the settlement money received was excluded property.
15 The parties have lived together for almost 40 years and the Settlement proceeds were received 14 years ago and have subsequently been spent by the parties to pay family debts and expenses. I am satisfied that it would actually be a significant unfairness if there was as splitting of the family assets on other than an equal basis. As well, I cannot conclude that there should be an unequal division of family property merely because of the inability of the Claimant to show that part of the Settlement probably relates to damages other than compensation for “lost income”. He may well have received favourable tax treatment because of a global settlement amount. I cannot conclude that the alleged unfairness is compelling or meaningful. Accordingly, there will be an equal division of any net sale proceeds flowing from the sale of the Family Residence.
Speak to one of our BC Family Lawyers today about how you can best protect your settlement or award.
