Tan v. Mintzler and Miller, 2016 BCSC 1183 (CanLII) discusses in-trust claims:
The court awarded the Plaintiff a total award of $736,493 for injuries sustained while struck by a vehicle in Richmond, BC. In regards to the claim for in-trust claims, however, in which the Plaintiff advanced for housekeeping services provided by the husband and daughter, the Court referenced the Court of Appeal decision in Kroeker v. Jansen, 1995 CanLII 761 (BCCA) which states:
“housekeeping and other spousal services have economic value…even where those services are replaced gratuitously from within the family”. In trust awards are generally limited to support services beyond those normally expected in a marital or familial relationship: Ellis v. Star, 2008 BCCA 164 at paras. 18-21. An in-trust award may also be made where a family member providing services experiences a direct economic loss or where their efforts result in replacing expenses that would otherwise have been incurred by hiring a third party to perform those duties: Pololos at para. 152.
The Court was of the opinion that the Plaintiff did not adequately prove that the husband or daughter provided “care significantly over and above what would be expected of a loving spouse or child, other than for a brief period after the Accident.” Therefore, the Court awarded 5,000 for the husband and $1,000 for the Daughter.
This case was referenced recently in Wright v. Mistry, 2017 BCSC 239 (CanLII) in which the court stated the following:
“Mr. Wright makes an “in trust” claim for housekeeping services which Ms. Lau had to provide because of his injuries. While Ms. Lau moved to Toronto following her retirement in 2014, she testified that she had to shoulder much of the housework before that time. Mr. Wright submits that $65,000 is an appropriate award to compensate for this work.
In Bradley v. Bath, 2010 BCCA 10 (CanLII) at para. 56, Mr. Justice Tysoe set out the basis for an in-trust award:
An in-trust award is one made to a plaintiff in trust for one or more of his or her family members, who are not named as parties to the action, as compensation to the family members for additional work done by them as a result of the impaired capacity of the plaintiff to perform housekeeping chores or to care for themselves. It was affirmed as a recoverable award by this Court in Kroeker v. Jansen (1995), 1995 CanLII 761 (BC CA), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178 (C.A.).
In-trust awards are available for pre-trial losses. These awards are usually made to a plaintiff without conditions: Dykeman v. Porohowski, 2010 BCCA 36 (CanLII) at para. 28.
There are, however, limits on these awards. A spouse cannot recover for care or housekeeping services unless they are “beyond those normally expected in a marital or familial relationship”: Tan v. Mintzler and Miller, 2016 BCSC 1183 (CanLII), citing Ellis v. Star, 2008 BCCA 164 (CanLII).
To guide courts when assessing in-trust claims, the court in Frankson v. Myre, 2008 BCSC 124 (CanLII) at para. 51 summarised the relevant factors:
(a) the services provided must replace services necessary for the care of the plaintiff as a result of a plaintiff’s injuries;
(b) if the services are rendered by a family member, they must be over and above what would be expected from the family relationship;
(c) the maximum value of such services is the cost of obtaining the services outside the family;
(d) where the opportunity cost to the care-giving family member is lower than the cost of obtaining the services independently, the court will award the lower amount;
(e) quantification should reflect the true and reasonable value of the services performed taking into account the time, quality and nature of those services;
(f) the family members providing the services need not forego other income and there need not be payment for the services rendered.
I accept the evidence from Mr. Wright and Ms. Lau that she did have to take on the majority of the housework and responsibility for Mr. Wright’s injuries, especially in the year following the accident. Since Mr. Wright stopped driving in 2010, she was responsible for driving him as well. Ms. Lau assisted him with moving residences. Even though she moved to Toronto, she has returned regularly to assist with shopping and preparing meals which she freezes. During these visits, she also stocks his apartment with household necessities that he can use in her absence.
Considering the level of care and assistance Ms. Lau provided over the ten years before the accident, I find that $65,000 is an appropriate compensation for the loss.”
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