Hunks v. Hunks
Ontario Reports
Court of Appeal for Ontario
Gillese, MacFarland and Pepall JJ.A.
March 27, 2017
136 O.R. (3d) 641 | 2017 ONCA 247
Case Summary
Family law — Property — Structured settlement — Proceeds of wife's personal injury action used to create structured settlement for her — Structured settlement annuity payments constituting income rather than property for purposes of Family Law Act — Family Law Act, R.S.O. 1990, c. F.3.
During the parties' marriage, a personal injury action by the wife was settled and some of the settlement money was used to purchase a structured settlement for her. The trial judge found that the structured settlement annuity payments to the wife fell within the meaning of property under the Family Law Act and were not excluded property under s. 4(2)3 of the Act. Consequently, the annuity payments were not to be treated as income for the purposes of spousal support. The wife appealed.
Held, the appeal should be allowed.
The structured settlement annuity payments should be considered as income for the purposes of spousal support, and not property under Part 1 of the Act. Unlike other annuities, an individual cannot purchase a structured settlement. The wife never received that part of the settlement funds that were used to buy the structured settlement annuity. Accordingly, while the wife received payments from the structured settlement annuity, she did not own it, nor did she have constructive receipt of the settlement funds used to create it. The structured settlement annuity was more analogous to disability benefits than to a pension. Just as disability benefits are more comparable to a future income stream based on personal service than a retirement pension, so too are the structured settlement annuity payments.
Cases Referred To
Statutes Referred To
Family Law Act, R.S.O. 1990, c. F.3 [as am.], Part I [as am.], ss. 4(2)3, 5(6)
Rules and Regulations Referred To
Family Law Rules, O. Reg. 114/99, rule 2(2), (3)
APPEAL
From the order of Morissette J. of the Superior Court of Justice dated September 16, 2015.
Counsel:
Christos Vitsentzatos and Trent Zimmerman, for appellant.
P. Alan R. Giles, for respondent.
Judgment
The judgment of the court was delivered by
Introduction
1This family law appeal turns on a single issue.
2During the parties' marriage, the wife was injured in an accident. She reached a settlement of her claim. Some of the proceeds of the personal injury settlement were used to create a structured settlement (the "SS annuity") for her. The marriage has ended but the wife continues to receive payments from the SS annuity.
3The issue on appeal is this: are the SS annuity payments to be treated as property or income under the Family Law Act, R.S.O. 1990, c. F.3 (the "Act")?
4For the reasons that follow, in my view, for the purposes of the Act, the SS annuity payments are to be treated as income.
Background in Brief
5Donna Hunks ("Ms. Hunks" or the "appellant") and Gary Hunks ("Mr. Hunks" or the "respondent") were married on December 22, 1995. It was a second marriage for both. Each had children from their prior marriages. They have no children together. At the date of their marriage, Ms. Hunks worked as an office assistant and Mr. Hunks worked as a millwright.
6On August 21, 1996, while Ms. Hunks was shopping in a supermarket, she was hit by either a palette or a loaded grocery cart and suffered significant physical injuries. As a result of those injuries, she lost her job and has been unable to return to work.
7Ms. Hunks sued the supermarket. The action included a claim by Mr. Hunks, under the Act, for damages for loss of care, guidance and companionship. The action was settled. Under minutes of settlement dated October 29, 1999 (the "minutes of settlement"), $571,383 was payable to the Hunks. The minutes of settlement also specified that the Hunks were at liberty to use some or all of the settlement moneys to purchase a structured settlement, in which event the defendant supermarket would pay the assignment fee.
8Ms. Hunks' personal injury lawyer sent her a letter dated November 25, 1999 (the "letter"). In the letter, the lawyer confirmed that after payment of legal fees and disbursements, Ms. Hunks had received the sum of $199,694 from the proceeds of settlement. Ms. Hunks used the almost $200,000 lump sum payment for the benefit of the family, including Mr. Hunks.
9The letter also set out that Ms. Hunks' claim had been settled on the following terms:
| Head of Damages | Amount |
|---|---|
| General damages for pain and suffering | $50,000 |
| Special damages | $19,283 |
| Future income loss | $302,100 |
| Total | $371,383 |
10An attachment to the letter showed that Ms. Hunks' lawyer had used $302,306 of the settlement moneys for a structured settlement (the SS annuity) for Ms. Hunks. The SS annuity was non-commutable, non-assignable and non-transferable. The SS annuity provided for monthly payments of $1,287.15, increasing by 2 per cent per annum, for the duration of Ms. Hunks' life or a minimum guarantee period of 25 years, with her estate as secondary beneficiary. It also guaranteed four equal lump sum payments of $15,000, to be paid to Ms. Hunks once every five years from 2009 to 2024.
11Ms. Hunks began receiving the irrevocable SS annuity payments on December 15, 1999.
12Mr. Hunks retired in September of 2009.
13The parties separated on October 1, 2011. At that time, Ms. Hunks was 57 years old and Mr. Hunks was 62 years old. Both parties' children are independent adults and were at the date of separation.
14At the separation date, there were about 13 years of guaranteed monthly payments and three lump sum payments yet to be made from the SS annuity.
15Ms. Hunks now receives approximately $1,500 per month from the SS annuity. She also receives a CPP disability payment of approximately $800 per month. The CPP payments will cease when she attains retirement age.
16In the family law proceedings that followed the parties' separation, a number of issues arose in respect of equalization. One issue is whether the SS annuity payments that Ms. Hunks receives are to be treated as income or property under the Act. If income, the payments are to be taken into consideration when determining spousal support. If the payments fall within the meaning of property in Part 1 of the Act, their treatment for net family property purposes depends upon whether they are excluded property under s. 4(2)3 of the Act.
17Section 4(2)3 reads as follows:
4(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:
- 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.
18This case was in trial assignment court on September 8, 2015. The presiding judge adjourned it to trial on September 14, 2015 and ordered that:
(1) the first order of business would be legal argument as to whether the SS annuity is property or income;
(2) an agreed statement of facts would be filed; and
(3) it would then be in the discretion of the trial judge to continue with the balance of the trial at that time, or to adjourn it for completion following delivery of her decision on the legal issue.
19I will refer to this order as the "trial assignment court order".
The Decision Below
20The parties, represented by counsel, appeared before the trial judge on September 14, 2015, as ordered. They did not produce an agreed statement of facts. Instead, each party produced its own statement of facts. While the two statements of facts were similar, they differed on how the settlement moneys had been used to buy the SS annuity. Ms. Hunks' position was that no specified head of damages in the settlement moneys had been earmarked to be used to buy the SS annuity. Mr. Hunks' position was that the head of damages representing future income loss in the settlement had been used to purchase the SS annuity.
21No sworn testimony or evidence was adduced before the trial judge, although a book of unsworn documents was placed before her.
22The parties made legal arguments on how the SS annuity payments that Ms. Hunks receives should be treated. Ms. Hunks argued that the payments are either income or, pursuant to s. 4(2)3 of the Act, excluded property. Alternatively, she sought an unequal division of net family property under s. 5(6) of the Act. Mr. Hunks argued that the whole amount of the settlement moneys had been received during the marriage. Thus, he submitted, the SS annuity was property under Part 1 of the Act and, as it represented future income loss, it was not excluded property under s. 4(2)3.
23The trial judge found that the SS annuity was property and not excluded under s. 4(2)3 of the Act. Consequently, it was not to be treated as income for the purposes of spousal support. The trial judge made an order to that effect, dated September 16, 2015 (the "order").
24The trial judge stated that most of the cases to which she had been referred dealt with workers' compensation benefits or other types of disability benefits. She observed that disability benefits are intended to replace income on an ongoing basis and are not intended to be a form of savings regardless of what the future held.
25The trial judge found that the SS annuity was akin to a pension plan because there were no pre-conditions attached to it and the SS annuity was payable for Ms. Hunks' life. Even if Ms. Hunks were able to get employment and receive income in the future, she would still be entitled to the SS annuity. Accordingly, the trial judge said, the SS annuity was a form of savings to replace loss of future earnings for Ms. Hunks. The trial judge concluded that Ms. Hunks had received the SS annuity payments before the parties' separation, and that Ms. Hunks was obligated to share their value post-separation, just like a pension.
26After finding that the SS annuity was property, the trial judge considered whether it ought to be excluded as damages for personal injuries in accordance with s. 4(2)3 of the Act. She noted that the onus of proving the exclusion was on the party claiming it.
27After reviewing several cases, the trial judge concluded that the intent of s. 4(2)3 is to exclude only general damages for pain and suffering together with any special damages that can be attributed directly to the personal injury, as opposed to lost income or other loss to the family. She said that because the only evidence before the court was the breakdown of the heads of damages (set out above, at para. 9), it appeared that the sum used to purchase the SS annuity represented the sum for loss of future income. She found that, on a balance of probabilities, the SS annuity was for future loss of income. Therefore, it was not excluded property under s. 4(2)3 of the Act.
The Issues
28On appeal, Ms. Hunks submits that the trial judge erred in:
(1) deciding whether the SS annuity payments are property or income under the Act (the "legal issue") in the absence of an agreed statement of facts and without an adequate evidentiary record; and
(2) finding that those payments are property that must be included in her net family property statement.
Issue #1: Did the Trial Judge Err in Deciding the Legal Issue?
The Parties' Positions
29Whether the SS annuity payments are to be considered income for support purposes or property for net family property equalization purposes is an important legal issue. The appellant says that important issues of law are normally decided based on a full factual record, which allows the trial judge to make findings that form the basis for his or her legal analysis and conclusions. In this case, in the absence of an agreed statement of facts, the trial judge found that the SS annuity had been purchased with that part of the settlement moneys allocated for future income loss (the "finding"). The appellant says that the finding was unreasonable and not supported by the evidence because (1) there was no agreed statement of facts, as ordered by the trial assignment court judge; (2) there was no sworn testimony on the matter before the trial judge; and (3) the trial judge faced two varying and contradictory statements of fact on the source of funds for the purchase of the SS annuity.
30Accordingly, the appellant argues, unless this court determines that the SS annuity payments are to be treated as income, the order must be set aside and the matter remitted to be tried on a full factual record, including expert actuarial evidence on the nature of the amounts that comprised the $302,306 used to purchase the SS annuity.
31The respondent argues that the parties' respective statements of facts were essentially the same. They agreed on the terms of the minutes of settlement and the amounts awarded for each head of damages within the settlement. They also agreed that part of the settlement moneys had been used to purchase the SS annuity. The trial judge considered the evidence and documents tendered by both parties and the appellant argued the legal issue in the absence of an agreed statement of facts and without objecting to the process.
32In the circumstances, the respondent argues, there is no basis for the appellant to now complain about the process that the trial judge followed in finding that the SS annuity was property within the meaning of the Act and was not excluded property under s. 4(2)3.
Analysis
33As I explain below, in my view, the payments that Ms. Hunks receives from the SS annuity ought properly to be treated as income. In light of the appellant's concession that she would not pursue this ground of appeal if the court so concluded, I would not give effect to this ground of appeal.
34Having said that, the force of the appellant's submission on one aspect of this ground of appeal warrants comment.
35I begin by stating that I do not accept the appellant's complaint about the process followed by the trial judge in deciding the legal issue (i.e., whether the SS annuity is to be treated as income or property under the Act). The legal issue is a question of law and was fully argued by both parties. There was no dispute between the parties on the facts relied on by the trial judge in deciding the legal issue. It would have been preferable for the legal issue to have been decided in the context of an agreed statement of facts, as required by the trial assignment court order. However, in the circumstances of this case, I see no procedural unfairness or prejudice to either party in the legal issue having been decided in its absence.
36However, I do have concerns about the process followed in determining whether the SS annuity, if treated as property, would then qualify as excluded property under s. 4(2)3.
37After finding, as a matter of law, that the SS annuity payments are property for the purposes of Part 1 of the Act, the trial judge went on to decide whether the SS annuity payments were excluded property under s. 4(2)3. The trial judge recognized that the s. 4(2)3 issue required a factual determination as to what part of the settlement moneys had been used to purchase the SS annuity. The trial judge then proceeded to make the finding that the SS annuity had been purchased using the sum included in the settlement moneys for future income loss.
38In the circumstances, making that finding raises questions of procedural fairness.
39Rule 2(2) of the Family Law Rules, O. Reg. 114/99 (the "Rules") provides that the primary objective of the Rules is to "enable the court to deal with cases justly". Rule 2(3) empowers the court, when dealing with a case, to take into consideration saving expense and time. However, Rule 2(3) is clear that dealing with a case justly includes ensuring that the procedure is fair to all parties. While it may have appeared expeditious to decide the s. 4(2)3 issue immediately after having decided the legal issue, the approach taken to deciding the s. 4(2)3 issue in this case raises procedural fairness concerns. I make four points in this regard.
40First, the trial assignment court order provides that the trial was to begin with legal argument on whether the SS annuity is property or income. That order does not go further and provide that if the trial judge found the SS annuity to be property, she was to decide whether it was excluded property under s. 4(2)3. Had it been intended that the s. 4(2)3 issue was to be decided at the outset of the trial, that should have been made clear in the trial assignment court order so that everyone—the parties and the trial judge—could govern themselves accordingly. As it was, it would not have been clear to the appellant that she faced the jeopardy of having the s. 4(2)3 issue decided against her at the outset of trial before evidence had been adduced.
41Second, the finding required the trial judge to make a factual determination but there was no evidence before the court. While the parties did make legal submissions on the s. 4(2)3 issue and there were some unsworn documents before the court in the form of a book of documents, there was no evidence before the court. Nor was there an agreed statement of facts, as required by the trial assignment court order.
42Third, there was a factual dispute between the parties on how the settlement moneys had been used in respect of the purchase of the SS annuity, a matter that went to the heart of the requisite factual determination on the s. 4(2)3 issue. Indeed, that factual dispute was the reason that the parties had been unable to produce the agreed statement of facts. Furthermore, the appellant wished to lead evidence on how the SS annuity had been funded and advised the trial judge of that.
43Fourth, the finding was not made in the context of a contested motion. Rather, it was made at the outset of the parties' trial.
44In these circumstances, given the serious financial implications of the finding for the parties and bearing in mind its complexity and importance, procedural fairness dictates that the question of whether the SS annuity was excluded property under s. 4(2)3 ought to have been left to the trial, so that it could be decided after evidence had been led and the necessary findings of fact had been made.
45Having said that, I would simply reiterate that because I have concluded that the SS annuity payments are properly treated as income, I would not give effect to this ground of appeal.
Issue #2: Did the Trial Judge Err in Finding that the SS Annuity Payments are Property?
The Parties' Positions
46The appellant submits that the reasoning of this court in Lowe v. Lowe (2006), 78 O.R. (3d) 760, [2006] O.J. No. 132 (C.A.) leads to the conclusion that the SS annuity payments should be treated as income and not property. She argues that the SS annuity arose as a result of her having suffered serious injury caused by a third party, an event that was wholly personal to her and independent of the marriage partnership. She also notes that the SS annuity was funded by the personal injury claim settlement moneys and was not acquired through savings. Therefore, she contends, the SS annuity payments are comparable to a future income stream based on personal service and are not property within the meaning of Part 1 of the Act.
47The respondent submits that the SS annuity was property that the appellant owned on the valuation date. He contends that the appellant received the whole of the settlement moneys—which included a lump sum for future income loss—during the marriage and used a part of those moneys to buy the SS annuity. Accordingly, he says, the remaining SS annuity payments are property within the meaning of the Act. He also argues that the SS annuity payments are akin to a pension and therefore property within the meaning of the Act.
48The respondent further argues that, on a balance of probabilities, it is reasonable to infer that the head of damage of "future income loss" of $302,100 in the settlement was used to purchase the SS annuity at a cost of $302,306. Alternatively, he says that the settlement moneys were commingled and lost their identity when the SS annuity was purchased in 1999, at which point the parties were married.
Analysis
49I agree with the appellant that the SS annuity payments should be considered as income for the purposes of spousal support and not property under Part 1 of the Act. I reach this conclusion for two reasons: (1) the SS annuity arises from a structured settlement; and (2) the SS annuity is analogous to disability benefits and not to a pension. As I have concluded that the SS annuity is not property under Part 1 of the Act, the s. 4(2)3 issue does not arise. Consequently, I will say nothing further about that issue.
1. The SS Annuity Arises from a Structured Settlement
50The respondent contends that the appellant received all of the settlement moneys during the marriage and purchased the SS annuity with a portion of those moneys. The fact that the SS annuity arose from a structured settlement is a full answer to this contention.
51A structured settlement is created when some or all of a personal injury settlement is deposited with a life insurance company in exchange for guaranteed tax-free payments for a specific number of years or for the recipient's lifetime. While it is usual to structure the payments so that the recipient receives them monthly, the structure can also include periodic lump sums (as in this case). If so, the lump sums are also received tax-free. The Canada Revenue Agency ("CRA") does not view payments from a structured settlement as income.
52In these reasons, I have referred to the payments received from the structured settlement as an annuity but it will be readily apparent that structured settlements are a very specialized type of annuity. For example, unlike other annuities, an individual cannot purchase a structured settlement.
53The requirements for a structured settlement can most easily be understood by reading para. 5 of the CRA's Interpretation Bulletin (IT-365R2), published May 8, 1987:
- A "structured settlement" is a means of paying or settling a claim for damages, usually against a casualty insurer, in such a way that amounts paid to the claimant as a result of the settlement are free from tax in the claimant's hands. To create such a structured settlement the following conditions must be complied with:
(a) a claim for damages must have been made in respect of personal injury or death,
(b) the claimant and the casualty insurer must have reached an agreement under which the latter is committed to make at least periodic payments to the claimant for either a fixed term or the life of the claimant,
(c) the casualty insurer must
(i) purchase a single premium annuity contract which must be non-assignable, non-commutable, non-transferable and designed to produce payments equal to the amounts, and at the times, specified in the agreement referred to in (b),
(ii) make an irrevocable direction to the issuer of the annuity contract to make all payments thereunder directly to the claimant, and
(iii) remain liable to make the payments as required by the settlement agreement (i.e., the annuity contract payout).
As a consequence of compliance with the foregoing conditions, the casualty insurer is the owner of, and annuitant (beneficiary) under, the annuity contract and must report as income the interest element inherent in the annuity contract while the payments received by the claimant represent, in the Department's view, non-taxable payments for damages.
54There is no dispute between the parties that the SS annuity was the result of a structured settlement that complied with the conditions set out above. The statement of facts that each party provided to the trial judge stated that the balance of the lump sum settlement in the amount of $302,100 was placed into a single premium annuity with Sun Life Assurance that was assigned by CIGNA Insurance Company to Kingsway General Insurance Company, with Ms. Hunks to receive irrevocable payments commencing December 15, 1999, for a minimum guarantee period to December 15, 2024.
55As the SS annuity arose from the structured settlement, it is clear that Ms. Hunks never received that part of the settlement moneys that was used to buy the SS annuity. The casualty insurer purchased the SS annuity and made an irrevocable direction to the issuer of the annuity contract to make all payments directly to Ms. Hunks. If, as the respondent contends, Ms. Hunks received the settlement moneys and then bought the SS annuity, it could not be a structured settlement because an individual cannot purchase a structured settlement. But, as both parties acknowledge, Ms. Hunks is receiving tax-free payments from the SS annuity because it arose from a structured settlement. Accordingly, while Ms. Hunks receives payments from the SS annuity, she does not own it nor did she have constructive receipt of the settlement moneys used to create it.
56Thus, once we understand the process by which a structured settlement is created, it becomes clear that Ms. Hunks did not receive the whole of the settlement moneys during the marriage. She did receive almost $200,000 during the marriage, by way of a lump sum payment from the settlement, and she used that money for the benefit of the family. However, Ms. Hunks did not receive the balance of the settlement moneys. Instead, those moneys were used to create a structured settlement that entitles her to receive the SS annuity payments.
2. The SS Annuity is More Analogous to Disability Benefits than to a Pension
57The fact that the SS annuity payments arise from a structured settlement does not, however, fully answer the question of whether the SS annuity payments should be treated as property or income for the purposes of the Act. In my view, payments received from a structured settlement annuity are analogous to disability benefits and, therefore, should be treated as income.
58At para. 17 of Lowe, Sharpe J.A. said the following about disability benefits:
I agree with Aitken J. [at para. 113 of Hamilton] 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). . . . 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."
59Like the disability benefits in Lowe, the SS annuity payments replace, in whole or in part, the employment income that Ms. Hunks would have earned had she been able to work. The SS annuity payments give her financial support because she cannot work. They are, therefore, of the same nature as the income that she would have earned had she not been injured. Just as disability benefits are more comparable to a future income stream based on personal service than a retirement pension, so too are the SS annuity payments. Annuities are usually purchased with savings. Not so for the structured settlement annuity. As we have seen, an individual cannot purchase a structured settlement annuity. Furthermore, structured settlements can only arise from a settlement for a damages claim based on personal injury or death. Clearly, the SS annuity was not purchased from personal savings nor is it a form of savings. The SS annuity, as a structured settlement, is designed to provide income to Ms. Hunks that she would have been able to earn, had she not been injured.
60Equally clearly, the SS annuity is not like an employment pension plan, where entitlement accrues with service.
61While I have concluded that structured settlement payments received after separation to replace future wages are not shareable as property, I leave for another day whether this analysis would apply in a case where it is found that a significant portion of the funds used to create the structured settlement is attributable to damages for a third party's claim. In the present case, that consideration does not arise. The amount of the settlement attributable to Mr. Hunks' claim was a very small percentage of the total settlement ($8,000 out of a total settlement of $571,383, or approximately 1.4 per cent). Furthermore and in any event, Mr. Hunks has received the benefit of far more than the amount attributable to the damages awarded for his claim. Ms. Hunks used the $200,000 lump sum she received from the settlement for the benefit of the family, including Mr. Hunks. She also used the structured settlement payments that she received for approximately 12 years of the time that she was married to Mr. Hunks for the benefit of the family, including Mr. Hunks.
62Finally, I reject the notion that the SS annuity payments should be treated as property because Ms. Hunks has a fixed entitlement to them. This idea was addressed and rejected, at para. 24 of Lowe. Sharpe J.A. said the following:
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 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.
63For all of these reasons, the SS annuity payments should be treated as income and not property for the purposes of the Act.
Disposition
64Accordingly, I would allow the appeal, set aside the order and make an order declaring that, for the purposes of the Act, the SS annuity payments post-separation are to be treated as income to Ms. Hunks and not as property.
65I would award the appellant costs of the appeal fixed at $10,000, all inclusive. If the parties are unable to agree on the costs below, they may make written submissions on that matter, to a maximum of three pages, such submissions to be filed with the court within ten days of the date of the release of these reasons.
Appeal allowed.
Notes
1 This is the figure shown on the minutes of settlement. A slightly different figure appears elsewhere in the record, including the reporting letter from Ms. Hunks' personal injury lawyer, which is discussed below.
2 Ms. Hunks was born on December 22, 1954 and is now 62 years of age. Mr. Hunks was born on August 11, 1949 and is now 67 years of age.
3 Ms. Hunks asserts, and Mr. Hunks accepts for the purposes of this appeal, that Ms. Hunks receives a monthly payment of $1,500 from the annuity. However, elsewhere in the record, there is an indication that the monthly amount is approximately $1,800.
4 Rule 2(3) reads as follows: 2(3) Dealing with a case justly includes, (a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
5 She also received payments from the SS annuity from December of 1999 to October 2011 (the date of separation). Those payments, too, were used for the benefit of the family.
