07 Nov A Child’s Claim Under the Family Compensation Act

Losing a loved one in a motor vehicle accident is not something we like to think about, but it does happen. If a child loses one parent, his damages under the Family Compensation Act, R.S.B.C. 1996, c. 126, relating to that loss will be reduced if the surviving parent remarries and the step-parent adopts the child.  This is because a marriage is not undertaken primarily for the benefit of the children in the first place.

Sometimes children lose both parents. In the case of Trotter-Brons (Guardian ad litem of) v. Corrigan, 2016 BCSC 1891, Wyatt was just eight months old when his parents were killed in a motor vehicle accident. His maternal grandparents were granted sole custody and later adopted Wyatt because they thought it would be in his best interests. They did not know that adopting him might affect his claim for compensation for damages arising from the deaths of his parents.

When Wyatt, through his guardian ad litem, brought on a case under the Family Compensation Act, the Court had to decide whether being adopted by his grandparents reduced his damages for the loss of his biological parents.  The Judge concluded that it did not reduce his damages because the obligation of adoptive parents was gratuitous in spite of the legal obligation imposed on them. This differed from the obligation of a step-parent, which are not gratuitous, because of the legal obligation that follows from the remarriage.

Notwithstanding his conclusion on this main issue, the Judge did consider a further issue: would Wyatt’s damages be reduced by the amount of replacement care legally required from the adoptive parents or by the amount of replacement care actually provided by them? The Judge concluded that Wyatt’s claims would only be reduced by the legal obligation assumed by his grandparents. A Trial Judge would later determine and value, on the evidence, what support and services Wyatt’s natural parents would have provided to him, but for their deaths. This amount would then be deducted from that the value of the support that his grandparents were legally obliged to provide to him. The balance of the value of the care and services which have been and will be provided to Wyatt by his grandparents would form the basis for any award of damages.

%d bloggers like this: