Future Bleak After Accident? You Could Get Big Compensation

Posted in: ICBC / INJURY- Feb 18, 2016 Comments Off on Future Bleak After Accident? You Could Get Big Compensation

If you’re badly hurt in a car crash and your future income earning ability is a lot less afterwards, you may be entitled to substantial compensation.

Mike (names changed), a 16-year old teenager, was walking around a curve on a roadside shoulder at night, facing oncoming traffic. He was struck from behind by Brenda, who didn’t turn her car at the curve in the road but kept driving straight, crossing the oncoming traffic lane and ramming into Mike at about 60 km/hour.

The court decided Brenda was fully responsible for the car accident – there was no suggestion Mike could have done anything to avoid it. The case was mostly about whether Mike’s future earning potential had been reduced

The defence argued that despite his brain injuries from the car accident, Mike’s future ability to earn income was no less after the accident. They pointed out that Mike’s high school grades afterwards were higher than before, and that he did well academically at university, even though he had to work a lot harder and get special accommodations to get good grades post-accident.

But during the trial, it became clear that there was a real and substantial possibility Mike would never be able to have the engineering career he had planned on before he was injured and still hoped for.

Mike was a very energetic, athletic and achievement-oriented young man before the accident, always striving to excel and “be the best” at whatever he set his mind on. He was an accomplished mountain bike rider, well liked by all, and a quick learner who did very well at school with little effort.

But the car crash changed everything for him. He was still extraordinarily driven to succeed. But the accident had inflicted a moderate to borderline severe brain injury with far reaching consequences.

Mike himself, his family and friends noticed his physical and mental abilities and his personality had changed. Though still highly motivated to succeed, his ability to focus and remember, to organize and carry out tasks was impaired. Studying became hard and took everything out of him, to the exclusion of everything else in his life.

In a real life working environment, Mike had difficulties at his university co-op placement and floundered even when given relatively simple tasks. He had difficulty organizing tasks and made mistakes carrying them out. He became anxious when under stress, which further impaired his ability to function well at work.

Medically, the bulk of his recovery was expected to happen within the first couple of years after the accident. So by the time of the trial some six years later, Mike could expect little if any further progress.

The court decided Mike’s earning potential was reduced. Based on his diminished future earning ability and more limited employability, Mike was awarded $3 million compensation. He was also awarded $220,000 for non-money damages (things like loss of enjoyment of life), some $65,000 for future care costs and reimbursement for medical expenses.

 

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer

Must You Share A Money Gift With Your Ex?

Posted in: FAMILY LAW- Feb 18, 2016 Comments Off on Must You Share A Money Gift With Your Ex?

Your boss gives you a large financial gift. Can your spouse get their hands on it? Normally, no, but you could lose it or a chunk of it.

Our family law has rules for how your property (and debts) are to be divided if you and your spouse split up. For starters, family property (and debts) are to be shared equally – unless the court decides a split down the middle would be significantly unfair.

But some things, like property you each owned before your relationship, and personal inheritances or gifts you get before you separate, don’t count as family property – they’re “excluded property,” which generally isn’t shared (though value increases during the relationship are).

Money or other assets “derived from” excluded property (say, money you get from selling your gift or inheritance) also typically don’t count as family property.

But how you deal with a gift or inheritance that was initially yours alone may (or may not) turn it into family property.

In one recent court case, Henry and Trudy (names changed) started living together in 2003, got married in 2004 and separated nine years later. They lived in Richmond and had three children together.

Henry had been with his employer company since 1997. About two years before he and Trudy separated, he got a large $2 million sum as an inheritance gift from the company’s principal when that wealthy businessman passed away.

Henry was a director of more than 30 companies related to his employer company.

Concerned about his risk as a company director should things go south with any of these companies, he put their Richmond family home in Trudy’s name alone for creditor protection. He agreed in court that this home was family property.

Trudy wanted to move from Richmond to Vancouver. So late 2011 (while still together), the couple used the bulk of Henry’s $2 million inheritance to buy land in Vancouver for a future home. Henry also put that land in Trudy’s name alone, and they started building.

When the couple separated in early 2013, only the new foundation had been constructed. To avoid a $500,000 loss, they completed construction although they were separated. They then sold the Vancouver house essentially at cost, avoiding a loss.

Henry argued the $2 million he’d been gifted, mostly used for the new Vancouver property (and the $2 million from its sale) were excluded property, so shouldn’t be split. But the court decided that when he put the land in Trudy’s name, making it her property for creditor protection, that was a gift to her. It turned the land into family property, so the sale money had to be shared.

Several recent cases have come to different conclusions about what happens after a separation to “excluded property” (or its sale proceeds) transferred between spouses.

This is a tricky area, so see a good family lawyer about who gets what after you and your ex separate.

 

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer

Unequal Division Of Property After You Split

Posted in: FAMILY LAW- Nov 02, 2015 Comments Off on Unequal Division Of Property After You Split

A marriage breakdown is traumatic. And lots of things have to be dealt with after you split – from new living arrangements for you and the kids to the financial fallout.

Speaking of the financial consequences, child support and spousal support may have to be paid.

And then there’s often the thorny question of how you should split your property.

In a recent case, our province’s Supreme Court outlined when an unequal division between ex-spouses may be appropriate. In the process, it also shed light on some of the ways our relatively new family law (in effect since mid-March, 2013) differs from the law before.

In this case, Debbie and Doug (all names changed) lived in a town in the interior of B.C. In the fall of 2005, some six months after they started dating, Debbie moved into Doug’s house with her 8-month-old daughter. From then on, they lived together like married folk, and tied the knot officially in the spring of 2007. In the summer of 2008, they had a son, Josh.

Unfortunately, the marriage didn’t work out. Doug and Debbie separated in January 2010, four years and three months after they started to live together like a married couple.

After first determining Doug’s child support obligations and before turning to spousal support, the court dealt with how the couple’s family property should be split (debts weren’t in dispute).

Under the new family law, the property each of you brings into the relationship is “excluded property.” But if it increases in value during the relationship, the increased value becomes family property.

Here, Doug owned the house when Debbie moved in, and also some company shares. Between the time Debbie moved in and the time she and Doug split up, the house equity went up by some $157,000, and the shares by some $86,000. It was only this increase in value that counted as family property.

The baseline rule now is that you are entitled to a one-half share of all family property (and debts). This is regardless of how these assets are used or your contribution to them.

And under the new law, the court will only move away from the “half-half split” baseline rule if an equal division would be “significantly unfair.” This is a stiffer test than under the previous rules – this unfairness must be compelling or meaningful in light of relevant factors.

Doug argued that his and Debbie’s family property (being the increase in house equity and increase in Doug’s shares) should not be split half-half. He wanted a split of 25% to Debbie and 75% to him.

The court did depart from a half-half split of the family property. A key reason was that the marriage relationship between Doug and Debbie was relatively short – only four years and three months. But it allocated 40% to Debbie and 60% to Doug.

If your marriage ends, you should consult a lawyer if you have questions about financial support and property division.

 

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer