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Digest of the Week | What Constitutes Property

What Constitutes Property

Hunks v Hunks | 2017 ONCA 247 | Ontario Court of Appeal

Parties married in 1995 and separated in 2011 — Wife worked as office assistant and husband worked as millwright — In 1996, wife suffered significant injuries when she was struck by grocer palette while shopping — Wife sued supermarket and action included claim by husband for loss of care, guidance and companionship — In 1999, settlement was reached and payment of $571,383 was made to parties — Wife used $200,000 for family purposes and approximately $300,000 was used to purchase structured settlement annuity which was non-commutable, non-assignable and non-transferable — Structured settlement provided for monthly payments of duration of wife's life or minimum guarantee period of 25 years, plus four equal lump-sum payments every five years — Approximately 13 years of payments remained due under annuity following separation and trial judge determined payments to wife fell within meaning of property rather than income and was not excluded from equalization — Wife appealed — Appeal allowed — Payments that wife received from annuity were properly treated as income for purpose of spousal support rather than family property — Annuity arose from structured settlement purchased by casualty insurer rather than wife — Wife neither owned structured settlement, nor had constructive receipt of settlement monies used to create it — Further, annuity was more analogous to disability income replacement benefits rather than pension — Amount of settlement used immediately for family purposes encompassed husband's claim for loss of companionship — Structured settlement payments received post-separation to replace wife's future wages were not shareable as property.
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