Best Veteran Affairs Pension Support Tips are provided to you today by MacLean Law associate Vanessa Lam.
Have you ever wondered how you or your spouse’s Veteran Affairs Pension (VAC) is used to calculate income for the purpose of paying child support? The simple answer is that while Courts in BC may not include the VAC Benefit as part of a spouse’s or parent’s income in a family law case, it does have an impact on the calculation of a payor’s means, circumstances, and ability to pay support or on their need for support as a recipient.
Vancouver Best Veteran Affairs Pension Support Tips Tel: 604 602 9000
On the current state of the law in BC, it is open to the Court to treat the VAC benefits as part of the appellant’s means but the pesnsion income is not automatically included as income for chil;d or spousal support.. In Boonstra (SCC leave to appeal dismissed) the BCCA held:
D. Did the judge err in his treatment of the VAC Benefits?
[46] On the current state of the law in this province, it was open to the judge to treat the VAC Benefits as he did. Neither the appellant nor the respondent have persuaded me of reversible error in his approach. Indeed, the respondent’s position in the cross-appeal, that VAC Benefits must always be included as “income”, would require that we overrule this Court’s decision in Lozinski v. Lozinski, 2017 BCCA 280. That is something only a five-member division could do.
[47] The appellant in Lozinski challenged a judge’s determination to take VAC Benefits into account in making a child and spousal support order. In light of those Benefits, the judge acceded to a request for spousal support at the higher end of the Guidelines range.
[48] Mr. Lozinski (who was also employed with the RCMP), argued that VAC Benefits do not replace income and should not be treated as such, either directly or indirectly:
[16] Mr. Lozinski submits that the judge effectively treated the VA Pension as income by including it in the calculation of child and spousal support. However, he says, the VA Pension is not income, income replacement or compensation for medical expenditures. It is a non-pecuniary award intended to compensate him for the loss of life amenities and personal limitations arising from disabling injuries suffered in the line of duty. Although the judge acknowledged that the VA Pension is not Guidelines income, he characterized it as part of Mr. Lozinski’s “disposable income” and failed to consider its real purpose: to bring him “back to level” by increasing his quality of life through monetary compensation. In his submission, this failure was a significant legal error.
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[19] Given all of the foregoing, Mr. Lozinski urges this Court to follow a line of cases that holds VA disability pensions are not income and conclude, therefore, that they should not be considered for support purposes in any fashion. In his submission, the cases that have adopted this approach are well-reasoned, persuasive and fully address competing considerations. In contrast, he says, cases that have held otherwise have not had appropriate regard to the compensatory nature and purpose of VA disability pensions, and some are distinguishable because they concern pensions that include elements of income replacement. All things considered, he submits, his support obligations should be determined without regard to the intensely personal VA Pension he receives.
[49] After acknowledging a divergence in Canada’s case law on whether VAC Benefits may be treated as income (see paras. 23–31 of Lozinski), this Court considered it unnecessary to settle the issue.
[50] Consideration of a party’s overall “means” in the context of spousal support has been held to include “… all pecuniary resources, capital assets, income from employment or earning capacity, and other sources from which the person receives gains or benefits”: at para. 44, quoting from Strang v. Strang, [1992] 2 S.C.R. 112 at 119, 1992 CanLII 55 (S.C.C.); Leskun v. Leskun, 2006 SCC 25 at para. 29. Writing for this Court, Justice Dickson found that the approach taken by the trial judge in Lozinski was consistent with the “… broad and flexible [support] analysis …” mandated under the Divorce Act: at para. 46, and given the “… breadth of [a judge’s] discretion …” in conducting that analysis, she was not prepared to find material error: at paras. 47, 51. The first instance judge had examined the overall factual context in which the payor received and used the VAC Benefits and, taking that context into account, he fixed spousal support at the higher end of the applicable range: at para. 47. Doing so was acceptable and did not warrant appellate intervention. Regardless of the purpose of the VAC Benefits, Mr. Lozinski’s receipt of them “… created an increased discrepancy in the parties’ respective standards of living, which [was] a relevant factor for consideration”: at para. 51.
[51] The appellant’s argument in this case is much like the one that failed in Lozinski. He says the judge erred in allowing the VAC Benefits to inform his determination of spousal support at the higher end of the range. In reaching his conclusion, the judge relied on Wallace v. Pichichero, 2021 BCSC 1642, which cited Lozinski and considered Mr. Pichichero’s VAC Benefits as part of his “means”.
Best BC Veteran Affairs Pension Support Tips
Other Cases on point in this area include:
Alberta Tel: 604 602 9000
Storey v. Simmons, 2013 ABQB 168,
The facts of Storey were as follows: After Mr. Storey’s discharge from the army, he began to receive two individual monthly disability payments, one of them a $3,818.88 monthly Canadian Forces pension. This figure represented 75% of what he earned in the military. Mr. Storey acknowledged this pension partially replaced his former employment income and that it should be treated as Guidelines income for child support purposes.
The other, a $4,900 monthly Veteran Affairs disability pension awarded to Mr. Storey (Plaintiff/Respondent in the application) to compensate for a combination of physical injuries and Post-Traumatic Stress Disorder (“PTSD”), all caused by his military service. In addition, because Mr. Storey was the father of two children towards whom he owed support obligations, his basic $4,900 basic disability pension was increased by $573.18 monthly.
The Defendant/Applicant asked the court to treat Mr. Storey’s Veteran Affairs disability pension as Guideline income under the Guidelines.
The Court rejected the mother’s position and determined that a personal award for injuries, such as pain and disability, loss of the amenities of life, and cost of future care, whether used by the recipient to purchase a structured annuity or simply deposited in an interest-bearing savings account, should not be treated as Guidelines income for child support purposes. Such awards were never intended to replace income lost by the recipients of those awards.
The Court decided that Mr. Storey only receives an additional monthly disability pension of $573.18 because he has children whom he is maintaining. The Court concluded that the portion of the pension which Mr. Storey receives because he is the parent of two children whom he is maintaining should be deemed to be income for the purpose of child support calculations. Because the “children’s” portion of the pension is, like the remainder of the pension, awarded tax-free, that portion shall be grossed up in relation to tax before it is added to his line 150 income.
British Columbia Tel: 604 602 9000
In L.F. v. C.G.C., 2014 BCSC 1069, Mr. Justice Brown performed a detailed analysis of the policy reasons to exclude pension revenues from income for support purposes. The Court concluded that the non-pecuniary portions of the Veteran’s Affairs benefits received by the respondent do not become income for the purposes of establishing his Guidelines income.
Mr. Justice Brown stated the following: “In my opinion, Wedge J.’s reasoning aptly applies to a Veteran’s Affairs disability pension. In short, when a payor parent receives income from an annuity originally purchased with the proceeds of personal injury award proceeds, as in non-pecuniary damages, or for cost of future care, such income does not constitute Guidelines “income” for child support purposes. Equally so, the lump sums of court awards for those heads of damages are not a family asset; and income derived from them does not constitute Guidelines “income” for child support purposes. Furthermore, the recipient of a lump sum award for those kinds of personal damages is not obliged to purchase an annuity or to invest it: in my opinion, it would be unreasonable to notionally attribute an income stream to a lump sum award and then go on to treat that stream as “income” for Guidelines purposes.
Best Veteran Affairs Pension Support Tips In Vancouver
In conclusion, a Veterans Affairs disability pension is compensation for loss of amenities of life paid in installments and is not automatically a form of income replacement for the purposes of calculating income for child support. The case law is somewhat opaque in this area, so check with one of our top Best Veteran Affairs Pension Support Tips lawyers.
