Lowe v. Lowe

  • Document:
  • Date: 2018

Lowe v. Lowe

[Indexed as: Lowe v. Lowe]

78 O.R. (3d) 760

[2006] O.J. No. 132

Docket: C42815

Court of Appeal for Ontario,

Laskin, Sharpe and MacFarland JJ.A.

January 18, 2006

 

 

Family law — Property — Workers’ compensation benefits — Workers’ compensation benefits not to be capitalized and included as family property under Family Law Act — Disability benefits representing income replacement and more appropriately treated on same basis as income from employment for purposes of family property and spousal support — Family Law Act, R.S.O. 1990, c. F.3, s. 4.

The husband injured his back at his workplace in 1985, suffering a partial disability as a result. He was receiving monthly workers’ compensation benefits. On an application pursuant to rule 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the application judge was asked to determine the appropriate treatment of the workers’ compensation benefits. The application judge found that the benefits fell within the definition of “property” in s. 4(1) of the Family Law Act, and rejected the argument that they were excluded as damages for personal injuries pursuant to s. 4(2)3. She concluded that the benefits should be included in the husband’s net family property. The husband appealed.

 

Held, the appeal should be allowed.

 

The purpose of workers’ compensation benefits is to replace in whole or in part the income the person would have earned had he or she been able to work in the normal course. Disability benefits are, for purposes of family property and support, more appropriately treated on the same basis as income from employment than as property. They should be taken into account in relation to spousal support but excluded from consideration in relation to equalization of family property.

 

Hamilton v. Hamilton, [2005] O.J. No. 3050, 18 R.F.L. (6th) 115, 49 C.C.P.B. 91 (S.C.J.), supp. reasons [2005] O.J. No. 5555, 144 A.C.W.S. (3d) 894 (S.C.J.); Mead v. Mead (1990), 2 O.R. (3d) 49, [1990] O.J. No. 2539, 31 R.F.L. (3d) 101 (Gen. Div.); Pallister v. Pallister, [1990] O.J. No. 2091, 29 R.F.L. (3d) 395 (Gen. Div.), apld Birce v. Birce (2001), 56 O.R. (3d) 226, [2001] O.J. No. 3910, 150 O.A.C. 319, 22 R.F.L. (5th) 6, 108 A.C.W.S. (3d) 673 (C.A.), affg [2000] O.J. No. 1561, 7 R.F.L. (5th) 256, 96 A.C.W.S. (3d) 1010 (S.C.J.); Yee v. Yee, [1990] O.J. No. 784, 25 R.F.L. (3d) 366 (C.A.), consd

 

Other cases referred to

 

Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 100 B.C.L.R. (3d) 1, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, 93 C.R.R. (2d) 189, 18 C.P.R. (4th) 289, 2002 SCC 42; Brinkos v. Brinkos (1989), 69 O.R. (2d) 225, [1989] O.J. No. 1140, 33 O.A.C. 295, 60 D.L.R. (4th) 556, 34 E.T.R. 55, 20 R.F.L. (3d) 445 (C.A.), supp. reasons (1989), 69 O.R. (2d) 798, 61 D.L.R. (4th) 766 (C.A.); Buske v. Buske (1988), 63 O.R. (2d) 749, 12 R.F.L. (3d) 388 (Dist. Ct.); Clarke v. Clarke, [1990] 2 S.C.R. 795, [1990] S.C.J. No. 97, 101 N.S.R. (2d) 1, 73 D.L.R. (4th) 1, 113 N.R. 321, 275 A.P.R. 1, 28 R.F.L. (3d) 113; Czemeres v. Czemeres, [1991] S.J. No. 243, 92 Sask. R. 1, 32 R.F.L. (3d) 243, 26 A.C.W.S. (3d) 1303 (Q.B.); Iurincic v. Iurincic, [1998] O.J. No. 2197, 40 R.F.L. (4th) 258 (Gen. Div.); Jeans v. Jeans, [2004] N.J. No. 111, 2004 NLSCUFC 11, 236 Nfld. & P.E.I.R. 82, 5 R.F.L. (6th) 63, 130 A.C.W.S. (3d) 564 (Nfld. S.C.); Lger v. Lger, [1994] N.B.J. No. 30, 143 N.B.R. (2d) 148, 111 D.L.R. (4th) 76, 366 A.P.R. 148, 1 R.F.L. (4th) 294 (C.A.); [page761] McTaggart v. McTaggart, [1993] O.J. No. 2533, 50 R.F.L. (3d) 110 (Gen. Div.); Murray v. Murray, [1994] A.J. No. 762, 119 D.L.R. (4th) 46, 10 R.F.L. (4th) 60 (C.A.); Onofrio v. Onofrio, [2002] O.J. No. 345, [2002] O.T.C. 62, 22 R.F.L. (5th) 379, 111 A.C.W.S. (3d) 542 (S.C.J.)

 

Statutes referred to

 

Family Law Act, R.S.O. 1990, c. F.3, s. 4 [as am.] Workmen’s Compensation Act, R.S.O. 1980, c. 539, s. 43 Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1) Authorities referred to

Burrows, G.E., “Disability Benefits and Other Assets” (2004-2005) 23 C.F.L.Q. 145

McLeod, J., Annotation, Iurincic v. Iurincic (1998), 40 R.F.L. 258

Pask, E.D. & C.A. Hass, Division of Pensions (Toronto: Carswell, 1996)

Patterson, J., Pension Division and Valuation: Family Lawyers’ Guide, 2nd ed. (Aurora: Canada Law Book, 1995)

Sullivan, R., Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002)

 

APPEAL by a husband from the order of Van Melle J., [2004] O.T.C.  1137 (S.C.J.) determining that workers’ compensation benefits were to be included as family property.

 

Morris A. Singer, for appellant.

Suzanne Hillier, for respondent.

 

The judgment of the court was delivered by

 

[1]  SHARPE J.A.:– The sole issue on this appeal is whether entitlement to receive workers’ compensation benefits should be capitalized and included as family property for the purpose of equalization under s. 4 of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”).

 

Facts and Relevant Legislation

 

[2]  The parties were married in 1984 and separated in 2003. They have one son. They were able to resolve most issues, including custody. They were unable to agree on the treatment of the appellant husband’s Workplace Safety and Insurance Board (“WSIB”) benefits and the respondent wife’s Public Service Pension Plan (“PSPP”) benefits. The husband also made a claim for spousal support but that claim was not advanced in the application that gave rise to this appeal.

 

[3]  The husband injured his back at his workplace in 1985. He suffered a partial disability as a result of the injury and he receives two monthly benefits from the WSIB. The first is described by the WSIB as follows: “You are in receipt of a ten per cent pension. The current monthly amount is $221.15 and this award is payable to [page762] you for life.” The second benefit is described as “the Older Worker’s Supplementary benefits”. The WSIB described the second benefit in the following terms: “Your current monthly amount is $227.90 and this is due to your income. This award is payable to you to age 65 only.” The supplementary benefit may be reduced if the husband becomes capable of earning more [than] he presently earns.

 

[4]  The benefits were granted under the pre-1990 Workmen’s Compensation Act, R.S.O. 1980, c. 539. The permanent disability benefit was determined pursuant to s. 43, which fixed the benefit as a “sum proportionate” to the “impairment of earning capacity” in an amount based on the husband’s earnings. This provision was amended in 1990 to provide for compensation for non-economic loss but that amendment was not in force at the relevant time and did not apply to the determination of the husband’s benefit.

 

[5]  The relevant provisions from the FLA are: Definitions 4(1) In this Part,

. . . . .

“net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,

(a)  the spouse’s debts and other liabilities, and

(b)  the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, calculated as of the date of the marriage;

“property” means any interest, present or future, vested or contingent, in real or personal property and includes,

(a)  property over which a spouse has, alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself,

(b)  property disposed of by a spouse but over which the spouse has, alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of the property, and

(c)  in the case of a spouse’s rights under a pension plan that have vested, the spouse’s interest in the plan including contributions made by other persons;

. . . . .

 

Excluded property

 

(2)  The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property:

. . . . . [page763]

3.  Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.

 

Proceedings Before the Application Judge

 

[6]  The case proceeded by way of an application pursuant to rule 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to determine, as a point of law, the appropriate treatment of the appellant husband’s disability pensions and the respondent wife’s PSPP benefits. I will say no more about the wife’s PSPP benefits as no appeal was taken with respect to the application judge’s decision in that regard.

 

[7]  The husband submitted that the WSIB benefits do not qualify as “property” under s. 4(1) as they represent a stream of income replacement. Alternatively, he submitted that if the benefits are caught by the definition of “property”, they are excluded under s. 4(2)3 on the basis that they amount to compensation for reduced earning capacity and are therefore the equivalent of damages for personal injury. The wife submitted that workers’ compensation benefits do fall within the broad definition of property under s. 4(1). Further, she submitted that the benefits represent compensation for loss of income, they are not excluded under s. 4(2)3, which should be interpreted to include only damages for non-economic losses.

 

[8]  With the wife’s consent, the husband led the evidence of a lawyer specializing in the area of workplace safety and insurance law. He testified that a permanent disability pension for a worker injured prior to January 1, 1990 represented a clinical rating assessment of the degree of the injury’s impact upon the injured worker’s daily living activities. He stated that, despite the omission of any reference to compensation for non-economic loss in the pre-1990 Workmen’s Compensation Act, there was an element of compensation for non- economic loss in the permanent pension. As for the supplementary benefits, he stated that such benefits were neither earnings replacement nor did they reflect a clinical assessment of impairment. He stated that the supplementary benefits reflect “that the earnings impairment of the worker due to his social economic position may exceed the quantum of benefits he is obtaining on account of his clinical disability”. As such, he characterized these benefits as “an income a ssistance supplement”.

 

[9]  The application judge found that the WSIB benefits fell within the definition of “property” in s. 4(1) of the FLA and rejected the submission that they were excluded as damages for personal injuries pursuant to s. 4(2)3. The application judge rejected the expert’s opinion that the permanent pension included a non-economic component. Relying upon the fact that the 1990 amendment allowing [page764] for compensation for non- economic losses did not apply, she found that “the benefit is in fact compensation for loss of earnings”.

 

[10]  The application judge concluded that the husband’s WSIB benefits should be included in his net family property and not excluded pursuant to s. 4(2)3.

 

Analysis

 

[11]  The issue to be decided on this appeal is whether the entitlement to a future income stream derived from WSIB disability benefits must be capitalized and included in family property. There appears to be no decision of this court dealing directly with the appropriate treatment of disability benefits pursuant to s. 4 of the FLA. There are, however, many trial level decisions dealing with the issue. This extensive body of case law does not follow a consistent line of analysis.

However, the result in most cases has been to exclude the capitalized value of disability benefits from family property for equalization purposes, in some cases because these benefits are not “property” or, in cases finding that they are property, because they are excluded as damages. I have considered those decisions in the preparation of these reasons, but I do not think it useful to deliver a detailed case-by-case recitation of this conflicting and confusing body of case law. For convenience, I have included as an app endix to these reasons a chart that lists the cases I have considered and indicates, in summary form, the results reached. For the following reasons, I have concluded that the result reached in the majority of the cases is the correct result, and accordingly, I would allow the appeal.

 

[12]  The definition of “property” in the FLA, s. 4 is admittedly broad. It includes, for example, a stream of income derived from a trust: see Brinkos v. Brinkos (1989), 69 O.R. (2d) 225, [1989] O.J. No. 1140 (C.A.). However, the definition of property is not without limits. In Pallister v. Pallister, [1990] O.J. No. 2091, 29 R.F.L. (3d) 395 (Gen. Div.), at pp. 404-05 R.F.L., Misener J. acknowledged the apparently “all-encompassing nature of the definition of ‘property'” but pointed out that as “property in law is simply a right or a collection of rights” identified by “no single criterion, or even a discrete number of criteria”, interpretation is required to contain the category of property within limits appropriate to achieve the purpose and object of the legislation as a whole:

It seems to me, therefore, that when the word appears in legislation defined in the broadest possible way, the limits are to be found through a consideration of the scope of that legislation and the objects it seeks to accomplish. If the definition of the right or rights as property is consistent with the scheme of the legislation and advances its objects, then it should be so defined. If either of those attributes is absent, then, unless the right or rights under [page765] consideration fall within a category that has been legally recognized as property heretofore, it should not be so defined.

 

[13]  I agree with this approach. It is consistent with the “modern approach” to statutory interpretation, set out in R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002) at p. 1 and adopted by the Supreme Court of Canada (see Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, at para. 26):

… the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

 

[14]  As Misener J. put it at p. 406 R.F.L., this purposive and contextual method of statutory interpretation allows “the courts to ensure that the broad definition employed is kept within the bounds of the scope of the Act”. In keeping with the “modern” approach to statutory interpretation, s. 4 should not be read as including any and every interest, even those bearing no relationship to the marriage partnership, simply because that interest is not specifically excluded. While the scheme of the FLA is to give a broad definition to property and then exclude certain specific types of property, I agree with Misener J. that the definition of property itself must be given meaningful content and that meaningful content imposes limits on the definition of property limits apart from the specific exclusions. Misener J. held, at p. 405 R.F.L., that the wife’s monthly benefits from an Armed Forces Disability Pension, found on the facts to amount to a permanent pension, were not “property” within the meanin g of s. 4:

The Family Law Act purposely eschews any attempt to equalize all the assets owned at the date of separation. Rather it seeks only to equalize the assets, the accumulation of which occurred during the marriage, and then only those assets that can fairly be said to bear some relationship to the partnership that the marriage is said to create. Accordingly, there is provision in s. 4(1) for the deduction of the value of property owned on the date of the marriage on the ground that that value was acquired prior to the marriage, and in s. 4(2) for the exclusion of property acquired by gift or inheritance after the date of the marriage and for the exclusion of the right to damages for personal injuries suffered after the date of the marriage, on the ground that the acquisition of that property bears no relationship to the marriage partnership.

 

[15]  The disability pension bore no relationship to the marriage partnership but rather arose because of a disability that impeded the recipient’s capacity to earn a livelihood. It followed, reasoned Misener J., that the stream of benefits to be received post separation should not be capitalized and included as family property for purposes of equalization. The benefits would be taken into [page766] consideration with respect to spousal support, but they fell outside the category of “property” and could be distinguished from a pension earned as part of a spouse’s remuneration during the marriage.

 

[16]  More recently, in Hamilton v. Hamilton, [2005] O.J. No. 3050, 18 R.F.L. (6th) 115 (S.C.J.), Aitken J. reached a similar conclusion with respect to Canada Pension Plan (“CPP”) and private insurance disability pensions after a detailed and comprehensive review of the authorities. I find Aitken J.’s analysis compelling and agree with her conclusion that disability benefits should not be considered family property for equalization purposes.

 

[17]  I agree with Aitken J.’s statement at para. 113 that “the purpose of the disability payments is to replace in whole or in part the income that the person would have earned had he or she been able to work in the normal course”. This makes disability benefits “more comparable to a future income stream based on personal service” than to either a retirement pension plan (explicitly included in family property by s. 4(1)), or to a future stream of payments from a trust (held to constitute property in Brinkos). A retirement pension is, as Wilson J. put it in Clarke v. Clarke, [1990] 2 S.C.R. 795, [1990] S.C.J. No. 97, at p. 814 S.C.R., “analogous” to a savings account and has value even when not in pay, while a disability plan has value only as income protection in the event of accident or illness. It is true that, in some case, disability benefits may be properly categorized as property in that they are “part and parcel of an overall employee pension benefit plan totally funded by the co mpany”: see McTaggart v. McTaggart, [1993] O.J. No. 2533, 50 R.F.L. (3d) 110 (Gen. Div.), at para. 19. Ordinarily, however, disability benefits replace income during the working life of the employee and therefore are appropriately treated as income for purposes of equalization and spousal support. As Aitken J. put it at para. 115, “a disability pension is simply the flip side of employment or self-employment income”. I adopt Aitken J.’s analysis at para. 124:

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 [page767] 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 inability 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.

 

[18]  I also agree with the point made by Lally J. in Mead v. Mead (1990), 2 O.R. (3d) 49, [1990] O.J. No. 2539 (Gen. Div.) (adopted in Hamilton at para. 111) that disability benefits are distinguishable from other pensions in that they cannot realistically be valued if not in pay as of valuation day. It would be anomalous to include as property a disability benefit in pay the day before separation but to exclude a disability benefit not in pay until the day after separation. It seems to me that this serves to reinforce the point that disability benefits are, for purposes of family property and support, more readily dealt with as income rather than as property. They should be taken into account in relation to spousal support but excluded from consideration in relation to equalization of family property.

 

[19]  Disability benefits have been held not to fall within the definition of property in several other cases: Buske v. Buske (1988), 63 O.R. (2d) 749, 12 R.F.L. (3d) 388 (Dist. Ct.); Mead, supra; Onofrio v. Onofrio, [2002] O.J. No. 345, 22 R.F.L. (5th) 379 (S.C.J.).

 

[20]  In cases holding that disability benefits do fall within the definition of property, the proposition has typically been advanced in conclusory terms without analysis and the focus has been on whether disability payments should be excluded as damages under s. 4(2)3. I find nothing in those cases that meets the compelling analysis of Pallister and Hamilton, and as I have already noted, the end result has more often than not been to exclude disability benefits under s. 4(2)3. Academic commentators and writers appear to favour the exclusion of disability benefits from family property: see J. McLeod, Annotation, Iurincic v. Iurincic, [1998] O.J. No. 2197, 40 R.F.L. (4th) 258 (Gen. Div.); E.D. Pask and C.A. Hass, Division of Pensions (Toronto: Carswell, 1996) at II-34 and II-47; J. Patterson, Pension Division and Valuation: Family Lawyers’ Guide, 2nd ed. (Aurora: Canada Law Book, 1995) at 287; compare G.E. Burrows, “Disability Benefits and Other Assets” (2004 -2005) 23 C.F.L.Q. 145 who would include most disability benefits as property, but exclude most as damages for personal injury. [page768] While legislation and case law from other provinces is far from uniform, I note that that there are several non-Ontario decisions holding that entitlement to disability benefits is not to be considered as property to be divided upon marriage breakdown: see Czemeres v. Czemeres, [1991] S.J. No. 243, 32 R.F.L. (3d) 243 (Q.B.); Lger v. Lger, [1994] N.B.J. No. 30, 111 D.L.R. (4th) 76 (C.A.); Murray v. Murray, [1994] A.J. No. 762, 119 D.L.R. (4th) 46 (C.A.); Jeans v. Jeans, [2004] N.J. No. 111, 5 R.F.L. (6th) 63 (Nfld. S.C.).

 

[21]  In my view, this court’s brief endorsement in Yee v. Yee, [1990] O.J. No. 784, 25 R.F.L. (3d) 366 (C.A.) did not decide that disability benefits do constitute property. This is all that the court said about workers’ compensation benefits: Workmen’s Compensation Clai

The portion of the Workmen’s Compensation claim which accrued to the husband before marriage ($1,676), but which was paid after the marriage, was a contingent asset of the husband at the time of marriage and therefore deductible by him from net family property pursuant to s. 4(1) of the Family Law Act: (see Mittler v. Mittler, 17 R.F.L. (3d) 113).

 

[22]  The endorsement in Yee indicates that nothing for post- valuation date worker’s compensation benefits was included in family property. Mittler dealt with a claim for reparations against the German government that arose prior to marriage but was determined and paid after marriage. The reparations were excluded from family property, inter alia, as property owned prior to marriage. Plainly, the point at issue in the case at bar was not considered by the court in Yee. I agree with Aitken J.’s assessment of Yee in Hamilton at para. 43:

The case is not helpful to the analysis required in this case because it provides simply a conclusion and leaves unanswered the question of how Workers’ Compensation benefits relating to the period following separation might be handled.

 

[23] Birce v. Birce, [2000] O.J. No. 1561, 7 R.F.L. (5th) 256 (S.C.J.) held a Canada Pension Plan disability benefit to be property under s. 4 where it was established on the evidence that the disability was likely to be permanent. An appeal from that judgment was dismissed: (2001), 56 O.R. (3d) 226, [2001] O.J. No. 3910 (C.A.). There was no appeal on the issue of the Canada Pension Plan disability benefit. Accordingly, this court’s judgment in Birce did not determine the point at issue here.

 

[24]  It might be argued that the husband’s permanent disability pension, payable for life, should be included as property as it is a fixed entitlement, apparently not contingent on the husband establishing disability on an ongoing basis. I would reject this argument. It seems to me preferable from the perspective of clarity [page769] and predictability to treat all disability benefits the same whether they are calculated strictly in terms of lost income or as compensation for impairment to earning capacity. However, as I have already indicated, disability payments that form part and parcel of an employee pension benefit plan may be on a different footing. In the end, the central point is that disability benefits represent income replacement and, from the perspective of family property and spousal support, are more appropriately treated on the same basis as income for employment.

 

[25]  Finally, in fairness to the application judge, I should note that she did not have the benefit of Hamilton, a case decided after she rendered her decision.

 

Conclusion

 

[26]  Accordingly, I would allow the appeal, set aside para. 1 of the order of the application judge and in its place substitute:

(1) The respondent/husband’s WSIB pensions are not included property under the Family Law Act.

 

[27]  The appellant is entitled to his costs of the appeal fixed in the amount agreed to by the parties, $5,000 inclusive of disbursements and GST.

 

Appeal allowed.

 

APPENDIX

 

Cases considering whether disability benefits should be included in family property for equalization purposes

 

Name of Case

1. Kelly v. Kelly (1987), 8 R.F.L. (3d) 212 (Ont. H.C.J.)

Type of benefits

Workers’ compensation benefits (pre-1990)

Are the benefits property under s. 4(1)? Yes

If so, should they be excluded under s. 4(2)3? Yes

Result

Not included

 

Name of Case

2. Buske v. Buske (1988), 63 O.R. (2d) 749, 12 R.F.L. (3d) 388 (Dist. Ct.)

Type of benefits

Workers’ compensation benefits (pre-1990)

Are the benefits property under s. 4(1)? No

If so, should they be excluded under s. 4(2)3? Yes (assuming the benefits were property)

Result

Not included [page770]

 

Name of Case

3. Yee v. Yee, [1990] O.J. No. 784, 25 R.F.L. (3d) 366 (C.A.)

Type of benefits

Workers’ Compensation benefits

Are the benefits property under s. 4(1)? Yes

If so, should they be excluded under s. 4(2)3? N/A

Result

Not included (property owed at the date of marriage)

 

Name of Case

4.  Pallister v. Pallister, [1990] O.J. No. 2091, 29 R.F.L. (3d) 395 (Gen. Div.)

Type of benefits

Armed Forces Disability Pension

Are the benefits property under s. 4(1)? No

If so, should they be excluded under s. 4(2)3? N/A

Result

Not included

 

Name of Case

5. Mead v. Mead (1990), 2 O.R. (3d) 49, [1990] O.J. No. 2539 (Gen. Div.)

Type of benefits

Benefits paid under long-term disability insurance policy.

Are the benefits property under s. 4(1)? No

If so, should they be excluded under s. 4(2)3? N/A

Result

Not included

 

Name of Case

6.  Balcombe v. Balcombe (1990), 30 R.F.L. (3d) 177 (Ont. Div. Ct.)

Type of benefits

Disability pension plan benefits

Are the benefits property under s. 4(1)? Yes

If so, should they be excluded under s. 4(2)3? Yes

Result

Not included

 

Name of Case

7.  McTaggart v. McTaggart, [1993] O.J. No. 2533, 50 R.F.L. (3d) 110 (Gen. Div.)

Type of benefits

Disability benefits from employee pension plan

Are the benefits property under s. 4(1)? Yes

If so, should they be excluded under s. 4(2)3? No

Result Included

 

Name of Case

8.  Fahner v. Fahner, [1994] O.J. No. 233 (Gen. Div.) Type of benefits

Lump sum C.P.P. disability benefit

Are the benefits property under s. 4(1)? Yes

If so, should they be excluded under s. 4(2)3? Yes

Result

Not included

 

Name of Case

9.  Vanderaa v. Vanderaa (1995), 18 R.F.L. (4th) 393 (Ont. Gen. Div.)

Type of benefits

Long-term benefits under employee disability plan Are the benefits property under s. 4(1)? Yes

If so, should they be excluded under s. 4(2)3? Yes

Result

Not included

 

Name of Case

10.  Smith v. Smith (1996), 22 R.F.L. (4th) 228 (Ont. Gen. Div.)

Type of benefits

Workers’ compensation benefits (pre-1990) Are the benefits property under s. 4(1)? Yes

If so, should they be excluded under s. 4(2)3? Partially. General damages were excluded, as was lost income accruing after the separation date.

Result

Post-separation benefits not included. [page771]

 

Name of Case

11.  Arvelin v. Arvelin (1996), 20 R.F.L. (4th) 87 (Ont. Gen. Div.)

Type of benefits

Workers’ compensation benefits

Are the benefits property under s. 4(1)? Yes

If so, should they be excluded under s. 4(2)3? No

Result Included

 

Name of Case

12.  Brignolio v. Brignolio, [1997] O.J. No. 1075 (Gen. Div.)

Type of benefits

Disability benefits from employee pension plan

Are the benefits property under s. 4(1)? Yes

If so, should they be excluded under s. 4(2)3? Yes

Result

Not included

 

Name of Case

13.  West v. West (1997), 33 R.F.L. (4th) 56 (Ont. Gen. Div.)

Type of benefits

Lump sum C.P.P. disability benefit

Are the benefits property under s. 4(1)? Yes

If so, should they be excluded under s. 4(2)3? Yes

Result

Ordinarily not included, but included in this case because the money was placed in a joint bank account

 

Name of Case

14.  Iurincic v. Iurincic, [1998] O.J. No. 2197, 40 R.F.L. (4th) 258 (Gen. Div.)

Type of benefits

Ontario Municipal Employees Retirement System disability pension

Are the benefits property under s. 4(1)? Yes

If so, should they be excluded under s. 4(2)3? No

Result Included

 

Name of Case

15.  Snjaric v. Snjaric, [1999] O.J. 1339 (Gen. Div.)

Type of benefits

Workers’ compensation benefits

Are the benefits property under s. 4(1)? Yes

If so, should they be excluded under s. 4(2)3? Yes

Result

Not included

 

Name of Case

16. Birce v. Birce, [2000] O.J. No. 1561, 7 R.F.L. (5th) 256 (S.C.J.); affirmed (2001), 56 O.R. (3d) 226, [2001] O.J. No. 3910, R.F.L. (5th) 6 (C.A.)

Type of benefits

C.P.P. disability benefits

Are the benefits property under s. 4(1)? Yes

If so, should they be excluded under s. 4(2)3? No

Result Included

 

Name of Case

17. Stewart v. Stewart (2001), 23 R.F.L. (5th) 372 (Ont. S.C.J.)

Type of benefits

Private insurance disability benefits and C.P.P. disability pension

Are the benefits property under s. 4(1)? Yes

If so, should they be excluded under s. 4(2)3? No

Result Included[page772]

 

Name of Case

18. Onofrio v. Onofrio, [2002] O.J. No. 345, 22 R.F.L. (5th) 379 (S.C.J.)

Type of benefits

Workers’ compensation benefits

Are the benefits property under s. 4(1)? Partially. The benefits received up to the valuation date were property; future benefits were not.

If so, should they be excluded under s. 4(2)3? No

Result

Future compensation benefits not included

 

Name of Case

19.  McKenzie v. McKenzie (2002), 30 R.F.L. (5th) 351 (Ont. S.C.J.)

Type of benefits

Disability benefits from employee pension plan and C.P.P. disability entitlement

Are the benefits property under s. 4(1)? Yes

If so, should they be excluded under s. 4(2)3? No

Result Included

 

Name of Case

20.  Hamilton v. Hamilton, [2005] O.J. No. 3050, 18 R.F.L. (6th) 115 (S.C.J.)

Type of benefits

Private disability benefits and C.P.P. disability benefits Are the benefits property under s. 4(1)? No

If so, should they be excluded under s. 4(2)3? N/A

Result

Not included