



COURT OF APPEAL FOR ONTARIO

CITATION: Hunks v. Hunks, 2017 ONCA 247

DATE: 20170327

DOCKET: C61093

Gillese, MacFarland and Pepall JJ.A.

BETWEEN

Donna Jean Hunks

Applicant (Appellant)

and

Gary Eugene Hunks

Respondent (Respondent)

Christos Vitsentzatos and Trent Zimmerman, for the
    appellant

P. Alan R. Giles, for the respondent

Heard: December 16, 2016

On appeal from the order of Justice Johanne N. Morissette
    of the Superior Court of Justice, dated September 16, 2015.

Gillese J.A.:


[1]

This family law appeal turns on a single issue.

[2]

During 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.

[3]

The 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)?

[4]

For 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

[5]

Donna 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.

[6]

On 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.

[7]

Ms. 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
[1]
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 monies to purchase a
    structured settlement, in which event the defendant supermarket would pay the
    assignment fee.

[8]

Ms. 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.

[9]

The Letter also set out that Ms. Hunks claim had been settled on the
    following terms:



General damages (pain and suffering)

$  60,000.00



Interest on pain and suffering

$  10,000.00



Future income loss

$302,100.00



Past wage loss

$  82,700.00



Interest on past wage loss

$    6,200.00



Special damages (expenses incurred to date)

$  16,500.00



Future care expenses

$  16,500.00



Garys claim

$    8,000.00



OHIPs subrogated interest

$    1,475.88



Costs

$  67,576.00



Total:

$571,051.88



[10]

An attachment to the Letter showed that Ms. Hunks lawyer had used $302,306
    of the settlement monies 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 $1287.15, increasing by 2% 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.

[11]

Ms. Hunks began receiving the irrevocable SS Annuity payments on December
    15, 1999.

[12]

Mr. Hunks retired in September of 2009.

[13]

The parties separated on October 1, 2011.  At that time, Ms. Hunks was 57
    years old and Mr. Hunks was 62 years old.
[2]
Both parties children are independent adults and were at the date of
    separation.

[14]

At 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.

[15]

Ms. Hunks now receives approximately $1,500 per month from the SS Annuity.
[3]
She also receives a CPP disability payment of approximately $800 per month.  The
    CPP payments will cease when she attains retirement age.

[16]

In 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 NFP purposes depends
    upon whether they are excluded property under s. 4(2)3 of the Act.

[17]

Section 4(2)3 reads as follows:

(2)
The value of the following property that
    a spouse owns on the valuation date does not form part of the spouses net
    family property:

3. 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.

[18]

This 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.

[19]

I will refer to this order as the Trial Assignment Court Order.

THE DECISION BELOW

[20]

The 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 monies had
    been used to buy the SS Annuity.  Ms. Hunks position was that no specified
    head of damages in the settlement monies 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.

[21]

No sworn testimony or evidence was adduced before the trial judge, although
    a book of unsworn documents was placed before her.

[22]

The 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 NFP under s. 5(6) of the Act. 
    Mr. Hunks argued that the whole amount of the settlement monies 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.

[23]

The 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).

[24]

The 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 on-going basis and are not intended to be a form of savings regardless of
    what the future held.

[25]

The 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.

[26]

After 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.

[27]

After 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

[28]

On 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 NFP statement.

Issue #1      Did the trial judge err in deciding the legal
    issue?

The Parties Positions

[29]

Whether the SS Annuity payments are to be considered income for support
    purposes or property for NFP 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 monies
    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.

[30]

Accordingly, 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.

[31]

The 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 monies
    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.

[32]

In 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

[33]

As 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
    appellants 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.

[34]

Having said that,
the force of the appellants
    submission on one aspect of this ground of appeal warrants comment.

[35]

I begin by stating that I do not accept
    the appellants 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.

[36]

However, 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.

[37]

After 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 monies 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
    monies for future income loss.

[38]

In the circumstances, making that Finding raises questions of procedural
    fairness.

[39]

Rule 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)
[4]
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.

[40]

First, t
he 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.

[41]

Second, 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.

[42]

Third, there was a factual dispute
    between the parties on how the settlement monies 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.

[43]

Fourth, the Finding was not made in the
    context of a contested motion.  Rather, it was made at the outset of the
    parties trial.

[44]

In 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.

[45]

Having 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

[46]

The appellant submits that the reasoning
    of this court in
Lowe v. Lowe
(2006), 78 O.R. (3d) 760 (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 monies
    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.

[47]

The 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 monies  which included a
    lump sum for future income loss  during the marriage and used a part of those
    monies 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.

[48]

The 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 monies were
    commingled and lost their identity when the SS Annuity was purchased in 1999,
    at which point the parties were married.

Analysis

[49]

I 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

[50]

The respondent contends that the appellant received all of the
    settlement monies during the marriage and purchased the SS Annuity with a
    portion of those monies.  The fact that the SS Annuity arose from a structured
    settlement is a full answer to this contention.

[51]

A 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
    recipients 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.

[52]

In 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.

[53]

The requirements for a structured settlement can most easily be
    understood by reading para. 5 of the CRAs
Interpretation Bulletin

(IT-365R2),
    published May 8, 1987:

5. 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.  [Emphasis added.]

[54]

There 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.

[55]

As the SS Annuity arose from the structured settlement, it is clear that
    Ms. Hunks never received that part of the settlement monies 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 monies 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 monies used to create it.

[56]

Thus, 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 monies 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.

[5]
However, Ms. Hunks did not receive the balance of the settlement monies. 
    Instead, those monies 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

[57]

The 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.

[58]

At 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.

[59]

Like 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 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.

[60]

Equally clearly, the SS Annuity is not like an employment pension plan,
    where entitlement accrues with service.

[61]

While 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 partys 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%). 
    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.

[62]

Finally, 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 husbands 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.

[63]

For all of these reasons, the SS Annuity payments should be treated as
    income and not property for the purposes of the Act.

DISPOSITION

[64]

Accordingly, 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.

[65]

I 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 10 days of the date of the
    release of these reasons.

Released: March 27, 2017
    (E.E.G.)

Eileen
    E. Gillese J.A.

I
    agree. J. MacFarland J.A.

I
    agree. S.E. Pepall J.A.





[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 $1500 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:

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.


