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In-trust award to devoted wife

If my spouse devotes a great deal of time to caring for me after I am injured, can the defendant be compelled to pay for those services – even though they didn’t “cost” us any money? What types of services must be provided?

In the recent decision of Parlby v Starr et al  2017 BCSC 2353, the plaintiff was severely injured in an ATV incident. Among other claims, he advanced a claim in-trust on behalf of his wife, for the care and service she provided him. The evidence established that while he was in the hospital, she completely altered her life to be at his side, using many weeks of vacation time to be in Vancouver with him. She was pregnant at the time, and responsible for the care of their other small child. Nonetheless she helped him with basic tasks, and with bathing, attending to personal care (shaving, nail clipping), and cleaned him after bowel movements. She arranged renovations to their home in anticipation of his release from hospital. Once he returned home she assisted him in getting into bed, provided massages, assisted with his exercises, cut his food. At that time she was also responsible for the care of a newborn and their toddler.

In applying the maximum compensation assessment (which is to award for the cost of obtaining care outside the family) Madam Justice Fleming provided the following reasons for a $35,000.00 in-trust award:

[588]     There is no question that the care and service Ms. McLauchlan has provided to Mr. Parlby were made necessary by the injuries caused by the Collision and Rollover. I find that both have been beyond what would be expected from their spousal relationship. After his return home, the care she has provided has been limited but her services with respect to childcare and household management have not been, bearing in mind the role he performed before being injured.

[589]     Although I agree with the Police Defendants that it is unlikely Ms. McLauchlan provided one to two hours of care to Mr. Parlby up to the date of trial, it is clear this significantly underestimates what she provided until his discharge from GFS and I regard one to two hours as a reasonable estimate given those she provided related to childcare and household management.

[590]     The maximum value for the care and services provided by Ms. McLauchlan is the cost of obtaining them outside the family. The opportunity cost in my view would have been significantly lower. Based on an estimated rate of $15 to $20 per hour, I award $35,000 in in-trust damages.

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