IS THE DISABILITY AWARD AN INCOME REPLACEMENT OR PROVIDED FOR PAIN AND SUFFERING

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IS THE DISABILITY AWARD AN INCOME REPLACEMENT OR PROVIDED FOR PAIN AND SUFFERING

Post by loggie on Wed 04 Feb 2015, 15:14

Good day everyone I have been a way for a while trying to get my head unwrapped. If only my massage therapist could get in there and work on the knots!!!
Just when I thought I was making progress along comes my ex. Typical she wants more since I was awarded money from the MacInnis case as well as receiving an increase to my Disability award and being awarded ELB.
I am seeking your help please.
I am trying to find out whether-or-not our Disability Award (not ELB or PIA) but the actual medical pension in provided for pain and suffering OR is it an income supplement?
Any references that can be provided would be greatly appreciated.
Thanking you all in advance for everything you do, whether it be informative insights or little diddies like from Mr Royal.

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Re: IS THE DISABILITY AWARD AN INCOME REPLACEMENT OR PROVIDED FOR PAIN AND SUFFERING

Post by RobbieRoyal on Wed 04 Feb 2015, 17:14

If any monies you receive are considered earn able income and you receive a T4 slip for them then that be it but as far as anyone taking anything from you ie your retro then I would advise you to seek legal counsel brother. I went through that crap but during the 10 year period I claimed the ex was already gone so it sucked to be her. Hope that helps some
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Re: IS THE DISABILITY AWARD AN INCOME REPLACEMENT OR PROVIDED FOR PAIN AND SUFFERING

Post by Guest on Wed 04 Feb 2015, 18:20

Loggie, my understanding is that the disability award from DVA is not intended to be an income replacement but rather compensation for pain and suffering et al, a point confirmed in the lawsuit and the reason it could not be deducted as an earning by Manulife. Again, anyone please confirm.

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Re: IS THE DISABILITY AWARD AN INCOME REPLACEMENT OR PROVIDED FOR PAIN AND SUFFERING

Post by Trooper on Wed 04 Feb 2015, 18:27

Hi loggie,

Really don't know if this helps - or even comes close to answering your question, but since your talking about your EX seeking more support I will pass the following on to you.

This I do know, when calculating for support with respect to DVA and only the tax free portions of what you are receiving from DVA - " ONLY THE PENSION PORTION OF YOUR PENSION IS CONSIDERED IN DETERMINING YOUR INCOME FOR THE PURPOSE OF CALCULATING AMOUNTS PAID FOR SUPPORT "

In English - If you would look at your DVA pay statement, you would see different awards, IE: pension amount / clothing allowance / incapacitated and so on.

The only one that is to be used in the calculation of support is the pension amount, the rest is money allotted to you, and only you, it cannot be used in calculating for support payments.

NOTE: Many lawyers are not familiar with this - as they do not deal with these types of tax free pensions - but I will guarantee you the courts do - I use to have the fact case on this, as I have used it in the past for child support - so it is fact.

And of course any taxed income can be used in calculating support.
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Re: IS THE DISABILITY AWARD AN INCOME REPLACEMENT OR PROVIDED FOR PAIN AND SUFFERING

Post by Guest on Wed 04 Feb 2015, 19:30

it is not an income replacement . it is in fact an award for pain and suffering.

propat

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Re: IS THE DISABILITY AWARD AN INCOME REPLACEMENT OR PROVIDED FOR PAIN AND SUFFERING

Post by bigrex on Wed 04 Feb 2015, 21:29

Well, after sitting through the SISIP hearing, I can attest that the courts do use PA pensions when calculating child support. Since the child support guidelines were the only legal example used by the GOC lawyers of when the PA could be considered as income. So if you do not have any children under the age of 18, or still in school, your ex should have no claim towards your actual PA pension. The only problem would be that the settlement from the lawsuit was for LTD income replacement, and not Pain and Suffering, so she legally is entitled to half of any money paid for years that you were still together. Your settlement worksheet will detail how much money had been deducted for each year.
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Re: IS THE DISABILITY AWARD AN INCOME REPLACEMENT OR PROVIDED FOR PAIN AND SUFFERING

Post by loggie on Thu 05 Feb 2015, 09:06

Thanks for the help my brothers and sisters however I am looking for a specific quote/reference that I can hand to the other side and then say, go away.
Any ideas on where to look?
As always thank you and keep well.

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Re: IS THE DISABILITY AWARD AN INCOME REPLACEMENT OR PROVIDED FOR PAIN AND SUFFERING

Post by bigrex on Thu 05 Feb 2015, 18:06

The Pension Act had clear instructions that a disability pension was untouchable.

"30. (1) No award shall be assigned, charged, attached, anticipated, commuted or given as security, and the Minister may refuse to recognize any power of attorney granted by a person with reference to the payment of an award.
Marginal note:Exemption from seizure and execution

(1.1) An award is exempt from seizure and execution, either at law or in equity."

Unfortunately, I could not find any such wording in the the "Canadian Forces Members and Veterans Re-establishment and Compensation Act". It may be there, but I just couldn't find it.
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Re: IS THE DISABILITY AWARD AN INCOME REPLACEMENT OR PROVIDED FOR PAIN AND SUFFERING

Post by Trooper on Thu 05 Feb 2015, 19:14

Rex,

That is correct but that has to do with untouchable in the event of Garnishment for instance - or if you were to be sued - the disability pension is untouchable.

What I think loggie is talking about is support payments - support payments be it child, or spousal is touchable for either of these supports.

However, the only good news here if you can call it that, is that only the disability pension portion of the DVA income can be attributed towards the calculation of any such payments.

Here is the ref case fact;

Hart v. Hart, {2003} 0.J. No. 2836 (S.C.J), O'Neill J, considered whether the husband's disability pension from Veterans Affairs, which $1,351.99 per Month should be considered for the purpose of child support. In that case, the pension allowance contained an allocation of $511.26 as an "attendance allowance" and $16.07 as a "clothing allowance"

In O'Neill J. reason he quotes from Mackenzie J. in Elliot v. Elliot {1997] A.J. NO.80 at para 10 of those reasons: The attendance allowance has a purpose. That purpose is highly personal to the recipient. It is paid for very special needs and will cease should those needs disappear. It is not intended to provide for the ordinary livelihood of the recipient as is the pension and disability pension. it is Intended only to assist in extraordinary needs of the recipient. In the case of pension payments which are intended to provide livelihood part of those can be assigned to or ordered paid to the opposite spouse because the recipient can change his or her standard of living. In other words, at least to some extent, the recipient can reduce his or her need for those payments. However, in the case of attendance allowance and clothing allowance the recipient cannot change the need for the payment.

Justice O'Neill concluded that the disability pension was income for child support purposes but that the attendance allowance and clothing allowance were not.

So bottom line here is that for support payments from your tax free disability pension from DVA is by law subject to be used in calculating support payments - only the pension portion of your tax free pension should be used - like I have already said - no Lawyers know this - so you can be your own Lawyer and use these case facts to your benefit.
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Re: IS THE DISABILITY AWARD AN INCOME REPLACEMENT OR PROVIDED FOR PAIN AND SUFFERING

Post by loggie on Fri 06 Feb 2015, 09:25

I hear what everyone is saying but we are digressing.
I know that the Disability pension is used for calculating spousal and child support. What I do NOT like is the fact that they take a non-taxable benefit and gross it up for the purposes of determining the amounts to be paid.
My lawyer asked, "Is the disability pension awarded for pain and suffering endured during service or is it simply an income replacement or supplement"?
Thus I am looking for the reference that defines that specific question.
To all those who have already replied, THANK YOU, all of your input is being collated for my use.
I wish one and all a great day.

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Re: IS THE DISABILITY AWARD AN INCOME REPLACEMENT OR PROVIDED FOR PAIN AND SUFFERING

Post by teentitan on Fri 06 Feb 2015, 11:28

loggie this is where the problem lies and it is extrememly difficult to get an answer.

VAC likes to call a PA payment a "disability pension" where initially it was deemed a "gratuity".

VAC calls it a disability pension because it's government jargon to make it look like the GoC is taking care of veterans. But ask them how many disability pensions are tax-free in Canada they will go silent.

I made the mistake of calling my PA pension a disability pension when the Liberals were in power and Minister Albino Guarnierri ripped me a new one by say "It's not a disability pension it is a gratuity from the people of Canada for the loss of your quality of life".

So it depends on who is in charge on what you can call it.

So I suggest that you tell your lawyer it is NOT an income replacement it is a pain and suffering payment.

Make your ex prove it is a disability pension/income replacement.
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Re: IS THE DISABILITY AWARD AN INCOME REPLACEMENT OR PROVIDED FOR PAIN AND SUFFERING

Post by RobbieRoyal on Fri 06 Feb 2015, 12:24

Good one Teen absolute GAME ON with that Loggie
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Re: IS THE DISABILITY AWARD AN INCOME REPLACEMENT OR PROVIDED FOR PAIN AND SUFFERING

Post by loggie on Fri 06 Feb 2015, 12:57

Good point Teen unfortunately the grenade was launched by them first, telling us to prove it.
I would even settle for something official that says it is a gratuity for loss of Quality of Life but I am at a loss as to finding something.
And FYI, her lawyers nickname is Kibbles and Bits and not for her looks but for the way she locks on to a point and will not let go.

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Re: IS THE DISABILITY AWARD AN INCOME REPLACEMENT OR PROVIDED FOR PAIN AND SUFFERING

Post by teentitan on Fri 06 Feb 2015, 13:01

Use the SISIP LTD lawsuit as proof it is not income replacement then. The judge candidly pointed out that the PA is not an income replacement and you know as well as everyone else if the government did consider it income replacement the lawsuit would still be in the courts being argued.

So using this you can consider you caught the grenade and had enough time to throw it right back in her foxhole! LOL
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Re: IS THE DISABILITY AWARD AN INCOME REPLACEMENT OR PROVIDED FOR PAIN AND SUFFERING

Post by Trooper on Fri 06 Feb 2015, 13:52

loggie,

I am with you my friend in not liking the fact that they take a non - taxable benefit and gross it up for the purpose of determining the amount to be paid.
This is Bxxx Sxxx.

This is what happen to me and I totally lost it both in and out of court, and you know what the Judge even gave me the impression that it was Bxxx Sxxx.
It's not enough they get portions of your CF pension, CPPD, SISIP, and any other taxable income you have - No that's not enough they go after the tax free DVA pension - They will go after every penny they can get their hands on - to me it's more of a cash grab then anything else.

Don't get me wrong I do not mind paying my fair share of support - By fair share I mean taxable income - not tax free income.
To gross this up in my mind puts the disable Veteran at a disadvantage over the rest of the Country's population who are going through a divorce/separation.


Is this fair ? In my mind and many others absolutely not ! I can say to you I did everything possible to keep my tax free pension out of court with no success.
It is very difficult to obtain a Lawyer who is familiar with tax free pensions from Veterans Affairs.
The only real chance one has is to obtain one outside the Family Law services, even the ones outside Family Law would be hard to find with respect to the degree of knowledge one would have in the matter, not to mention the cost associated with.
Not trying to discourage you - just passing on what I have experienced in the matter.

In closing,

I hear and understand your frustration as I have been through this and experienced it first hand.
In my own opinion the only way to see change in this tax free pension matter would be either it to be challenged in court, and be successful in the challenge which would be very costly and lengthy.
The other would have to come from a change in the pension act.
Again not trying to discourage you, my intention is simply to share what I have experienced in this matter.

Best of luck to you, and try not to let this get the best of you.
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