In my previous blog “Fair: In Love and War” I discussed the concept of excluded property under the Family Law Act. If you haven’t read that blog – stop. Read it, and come back.
Now that we’re all on the same page – or technically, the same blog – let’s move along. I’m not a personal injury lawyer, so I can’t help you in that area. However, it is all too common that personal injury disputes with ICBC settle and do not proceed to trial. I have been told by friends in the personal injury business, that offers to settle from ICBC often have short windows of acceptance. Accordingly, settlements are finalized in very short order.
Unless your personal injury lawyer is attuned to the world of family law, it is possible your settlement will be unallocated. This means that ICBC cuts you a lump sum cheque without specific discussion or allocation of monies to specific damages you have sustained; past wage loss, future wage loss, loss of amenities of life etc.
If the above occurs, it is possible your soon-to-be ex may be entitled to receive half your personal injury settlement. A simple allocation of the settlement funds to specific heads of damages might allow you to retain significant portions of your “hard earned” money as excluded property.
Recent cases in the BC Supreme Court reiterate, unless a spouse can prove which portions of a personal injury settlement are allocated to specific heads, thereby substantiating a claim for excluded property, the entire settlement is – as a starting point – divisible as family property. The case of Jackson v Jackson, 2015 BCSC 2114, is illustrative.
At paragraph 11 of the above case, the Honourable Justice Burnyeat explains:
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.
Accordingly, it is extremely important for you to obtain family law advice, in addition to your personal injury legal support, before accepting any offer from ICBC. Again, like most areas of the law, there is no black and white rule. Every situation is unique, and laws apply to each situation differently. If you are in the middle of a personal injury dispute, give us a call and we can help protect your settlement before it’s too late.