Krangle (Guardian ad litem of) v. Brisco

2000 BCCA 147 Citation: Krangle (Guardian ad litem of) v. Brisco Date: 20000306 2000 BCCA 147 Docket: CA024083 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN: MERVYN DUDLEY KRANGLE, an infant by his mother and Guardian ad Litem, Phapphim Krangle, the said PHAPPHIM KRANGLE, and MURRAY JOHN KRANGLE PLAINTIFFS (APPELLANTS) AND: DR. ELLIE BERTHA BRISCO DR. STANLEY FRED MORRILL DEFENDANTS (RESPONDENTS) Before: The Honourable Chief Justice McEachern The Honourable Mr. Justice Hollinrake The Honourable Mr. Justice Mackenzie John N. Laxton, Q.C. and Robert D. Gibbens Counsel for the Appellants C.E. Hinkson, Q.C. and Raj Samtani Counsel for the Respondents Place and Date of Hearing: Vancouver, British Columbia May 27 & 28, 1999 Place and Date of Judgment: Vancouver, British Columbia March 6, 2000 Written Reasons by: The Honourable Mr. Justice Mackenzie Concurred in by: The Honourable Mr. Justice Hollinrake Dissenting in Part by: The Honourable Chief Justice McEachern (Page 24, Paragraph 36) Reasons for Judgment of the Honourable Mr. Justice Mackenzie: [1] This appeal raises issues of assessment of damages for future cost of care in a case of "wrongful birth". Mervyn Krangle was born on 30 September 1991 with Down syndrome, a result of a chromosomal abnormality. His disability will preclude him from ever living independently. While he has loving, caring and attentive parents, it will not be practical for him to continue to live with them in his adult years. He will eventually move to a group home for persons with similar disabilities. Age nineteen, the age of majority in British Columbia, has been accepted as the approximate time of the transition. The main issue is whether Mervyn's parents can recover damages for the cost of caring for Mervyn in a group home after he reaches age nineteen. The trial judge refused to award damages for Mervyn's cost of care after age nineteen, except for a contingency allowance. [2] The trial resolved all issues of liability. The respondent doctor was found to have been negligent in failing to inform Mervyn's parents, the plaintiff's Phapphim and Murray Krangle, of the availability of an amniocentesis test during Mrs. Krangle's pregnancy. That test would have extracted a sample of amniotic fluid. Genetic analysis of the sample would have diagnosed Down syndrome in the fetus and permitted termination of the pregnancy. It was conceded that Mrs. Krangle would have elected to terminate the pregnancy if she had been informed of the fetal abnormality in time. [3] The trial judge held that the respondent was liable to the parents for the damages they have sustained and will in future sustain as a result of Mervyn's disability. Mervyn himself has no cause of action for his birth. There is no appeal from those conclusions. Cost of care after age nineteen [4] The parents have appealed the conclusion of the trial judge that Mervyn's group home cost of after age nineteen will be paid from public funds and not by his parents. The appellants contend that government benefits are payable under a means tested "welfare" scheme which are only available if the recipient has no other source of income or assets. They argue that in principle damages payable by a tortfeasor should not be reduced by the "collateral benefit" available from such a social welfare scheme. [5] The trial judge concluded that Mervyn's parents did not have a legal obligation to support him after age nineteen but they did have a moral obligation sufficient to support a claim for damages. He then went on to conclude, for reasons discussed more fully below, that there was a five per cent contingency that there would not be publicly funded care available after Mervyn reaches age nineteen. He awarded damages for that five per cent contingency. [6] The trial judge concluded that at age nineteen Mervyn would be eligible for cost of care benefits under the Guaranteed Income for Need Act, now the BC Benefits (Income Assistance) Act, R.S.B.C. 1996, c. 27,(hereinafter referred to as "BC Benefits") and the parents would cease to be responsible for those costs at that time. He summarized the position in these terms: At age nineteen Mervyn will qualify for benefits under the Guaranteed Income for Need Act, commonly referred to as "GAIN". (That statute has been replaced by the BC Benefits [Income Assistance] Act but the benefits by transition appear to be the same so I will refer to them as GAIN benefits.) If he turned nineteen today, Mervyn would qualify to receive GAIN benefits of $654 per month. That would meet his group living home expenses. Under the social safety net he would be able to support himself. There is little reason to be concerned that he will not be in an identical position thirteen years from now when he does turn nineteen. The expert evidence in this case is consistent in recommending that it will be in Mervyn's best interests as an adult that he live in a group home. There is no expert evidence to the contrary. The Krangles want what is best for Mervyn and they want him to have as much independence as possible. Mrs. Krangle expressed a wish, expressed by all realistic parents, for their own independence at the appropriate time. There is nothing in the case as presented by the plaintiffs inconsistent with this expectation. In his report, Dr. Armstrong said: Mr. Krangle expressed the desire that Mervyn would have the knowledge, skills and behaviours to function within a group home setting as an adult. His expectations were that this transition to a group home would occur at a time that was typical for normal children leaving home. I conclude that it is unlikely that there will be any cost to the adult plaintiffs for the care of Mervyn after age nineteen. The social safety net is likely to be in place at that time to provide the same benefits he would be eligible to receive today. This case is indistinguishable from Wipfli v. Britten (1984) 56 B.C.L.R. 273 (B.C.C.A.) and similar cases. This is not a collateral benefits situation as argued on behalf of the plaintiffs. Contingencies must be considered. There is some possibility that the benefits under the legislation will not be fully available thirteen years from now, although if that had to be expressed in percentage terms I would be hard pressed to go above five per cent. There might be some extra benefits and comforts that it would be reasonable for the Krangles to purchase for their son. It might be advisable to keep Mervyn at home for a period of time after his nineteenth birthday or to make the transition gradual thereby extending the need for in-home services. Dr. Joschko mentioned a small risk of psychological difficulties requiring professional attention and there might be some cost associated with that contingency. There was some evidence as to the possibility of Mervyn ageing prematurely and that might give rise to some costs not yet foreseen. There might be other unforeseen costs. For these contingencies, I award the sum of $80,000. The trial judge's reasons have been overtaken by later amendments to the Family Relations Act, R.S.B.C. 1996, c. 128. [7] The trial judge relied on the definition of "child" in the Family Relations Act, as limited to a person under the age of nineteen. After the trial, the Act was amended by 1997 S.B.C. c. 20, ss. 16 and 17 to extend the definition of child to include adult children incapacitated by illness or disability for the purpose of support obligations. The pertinent provisions are now as follows: 87. In this Part: "child" includes a person who is 19 years or older and, in relation to the parents of the person, is unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; . . . . 88. (1) Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child. [8] According to the explanatory notes that accompanied the bill, the amendment to s. 87 was intended to make the definition of child in the Family Relations Act consistent with the definition in the Divorce Act (Canada), R.S.C. 1985, c. 3. The note to the s. 88(1) amendment explained that it "simplifies section 88(1) of the Act so that the general obligation of all parents to support their children is not open to confusion with the criteria under child support guidelines applicable if a child maintenance order is to be made." [9] The Attorney General expanded on this point during the legislative debate: . . . Under the old scheme, parents who were separated had more obligations than the parents who were together. For instance, this would now allow a child or children who are over 19 and in full-time attendance, or disabled or ill, to be able to sue the parents for support and maintenance if the parents could afford that support and maintenance. Later in the debate he added: I think, philosophically, what we're saying is that if you . . . I really shouldn't extend it to this, but philosophically one could argue that what we're saying is that if you have the means to support your children or your parents, it is your first obligation rather than the state's obligation to support your children or your parents. [10] In my view the explanatory notes and the remarks of the Attorney General simply confirm the plain and obvious meaning of the words of the amendments. As the Attorney General stated, the parental obligation extends beyond the purview of the Divorce Act to parents who are not divorced or separated. [11] Mervyn will never be able to live independently. He will never be able to voluntarily withdraw from his parents charge or independently obtain the necessaries of life. The stark reality is that he will have to be supported for the rest of his life either by his parents or by the state. Section 88(1) states unambiguously that the parents are "liable for the reasonable and necessary support of" Mervyn. Section 91(3) of the Family Relations Act authorizes "any person" to apply for an order for maintenance on behalf of Mervyn if the parents do not discharge their obligation, and the parents could not prevent an application on Mervyn's behalf. "Any person" would include the Public Trustee, who could represent an adult child lacking legal capacity. [12] The Supreme Court of Canada recently has recognized the shift of obligations from the state to family members as a legitimate object of family relations legislation. In M. v. H. (1999), 171 D.L.R.(4th) 577, Iacobucci J. observed in the context of Part III of the Ontario Family Relations Act (at para. 93): As I see the matter, the objectives of the impugned spousal support provisions were accurately identified by Charron J.A. in the court below. Relying in part on the OLRC description of the goal of the FLA set out above, she identified the objectives of the Part III provisions as both a means to provide "for the equitable resolution of economic disputes that arise when intimate relationships between individuals who have been financially interdependent break down" and to "alleviate the burden on the public purse by shifting the obligation to provide support for needy persons to those parents and spouses who have the capacity to provide support to these individuals"(p. 450). I find support for this position in the legislative debates, the terms of the provisions, as well as the jurisprudence of this Court. [Emphasis added.] [13] Section 91(5) of the Family Relations Act authorizes the appropriate minister to apply for an order for maintenance where the right to apply for an order has been assigned to the minister under s. 24.1 of the BC Benefits (Income Assistance) Act. Section 24.1 is an enabling provision: 24.1 (1) The Lieutenant Governor in Council may make regulations governing the assignment of maintenance rights and the recovery of the amount of income assistance provided in place of maintenance including the following regulations: . . . . . (b) specifying maintenance rights that are to be assigned to the minister, including, but not limited to, any of the following rights: (i) to make an application under an enactment of British Columbia for a maintenance order; . . . [14] The current regulations made under s. 24.1 do not extend to the assignment of rights of an adult child under s. 88(1) to maintenance from parents who are not divorced or separated. Thus at present the government has not chosen to enforce the s. 88(1) obligation through a compulsory assignment to the minister of Mervyn's rights to maintenance by his parents. Nonetheless, the parental obligation has been imposed by the amendments to ss. 87 and 88(1), and the legislation enabling enforcement of the obligation by the minister administering the BC Benefits scheme is in place. Thus the legislation imposing the parental obligation is clear - only the will of the government to enforce it remains in doubt. The philosophy underlying the amendments is that the parents' obligation to support adult disabled children is the primary obligation and the state's obligation is secondary. [15] We invited submissions from counsel on the question whether the 1997 Family Relations Act amendments extending the definition of "child" could be considered by this court inasmuch as the amendments were passed after the date the cause of action arose and the trial. In my opinion the issue of the change in the statutory definition is not one which lends itself to the traditional analysis of retroactive or retrospective legislation. The damages in issue involve future costs not the past. I think the change in legislation has to be regarded as a fact now before the court. It is a fact relevant to the assessment of damages for future costs in the same way that the death of the female plaintiff after the trial in Cory v. Marsh (1993), 77 B.C.L.R.(2d) 248 (B.C.C.A.) was a fact before this court on that assessment of damages. To use the language of this court in Cory v. Marsh this amendment to the definition of "child" results in the award before us of $80,000 for contingencies "no longer [having] any basis in reality. If the change in legislation had been the other way and reduced the parents' liability for cost of future care could it seriously have been contended that the respondent would not be entitled to the benefit of that future cost reduction? In my opinion, it must be a two way street. [16] The argument against awarded damages to the parents for the cost of care of Mervyn after age 19 is that the government will pay for Mervyn's cost of care in a group home under the BC Benefits scheme and will not enforce the parents obligation under the amendments to ss. 87 and 88(1). To date the government has not promulgated the regulatory machinery to do so. The critical moment will be 30 September, 2010, when Mervyn reaches age 19. Can the court confidently assume that at that time, despite the statutory obligation and the underlying philosophy that the obligation of parents to support children should take precedence over the state's support obligation, the parental obligation will not be enforced? In my respectful view, there is no reliable basis for such an assumption and the court is required to take the parents' statutory obligation at face value. The parents are entitled to be indemnified against that obligation by the defendant. [17] I do not think that there is any foundation for a contingency discount from the full present value of the cost of care for the possibility of continued government non-enforcement. No policy statements of ministers responsible for enforcement have been brought to our attention and in the absence of any authoritative statement of the government's position on enforcement, judicial speculation on the intentions of government would be perilous. [18] The trial judge relied on Wipfli v. Britten (1984), 56 B.C.L.R. 273 for the proposition that benefits paid as part of a universal benefits scheme were to taken into account in assessing damages for future cost of care. In my opinion, the benefits under the BC Benefits scheme cannot be equated with benefits payable under a universal hospitalization scheme at issue in Wipfli. That case involved a child negligently injured during birth. The brain injury was so catastrophic that the child would be confined to bed and wheelchair for life. The child was the plaintiff and the damages claimed included over $1 million for future costs of hospitalization. Taggart J.A. for the majority in this Court held that the claim should be limited to the per diem coinsurance cost of hospitalization in British Columbia, capitalized at a figure of $70,000. Taggart J.A. stressed that, apart from coinsurance, the cost of hospitalization was paid under a universal scheme covering all residents of the province requiring hospital care and services. This entitlement meant that most of the cost of hospitalization would be paid by this universal plan. The plaintiff was entitled to the benefits of the plan, irrespective of any other funds the plaintiff might have available to pay them. Any award for damages above the coinsurance cost would provide double recovery of those costs by the plaintiff. He therefore concluded that the cost of future care did not result in a loss to the plaintiff for which he should be compensated. [19] The critical difference in the case at bar is that the BC Benefits scheme is not universal. It is means tested, available only to those who are not self supporting in accordance with the income and asset criteria established by the regulations. The BC Benefits scheme is complex but I think it allows the government to treat the parents' obligation under s. 88(1) of the Family Relations Act as the primary obligation and either refuse BC Benefits assistance to Mervyn or, alternatively, claim indemnity from the parents under an assignment of Mervyn's s. 88(1) right to maintenance. The plaintiffs are characterized financially by their counsel as upper middle class and it is unlikely that they would be able to resist an application under s. 88(1) on grounds of economic hardship. [20] The respondent contended that an award of damages to the parents would not affect Mervyn's eligibility for BC Benefits because the damages would be the parents' money, to do with as they saw fit, and not Mervyn's. That ignores the parents' s. 88(1) obligation. Nor is there any reason to doubt the parents' commitment to use the funds only for Mervyn's benefit. We have not been directed to anything in the BC Benefits regulations that would ignore the existence of a fund in the parents hands intended to cover the cost of care in determining Mervyn's eligibility. The administration of BC Benefits would expect the parents to discharge that obligation and Mervyn would be ineligible for BC Benefits or the government would seek reimbursement from the parents. The position will be even stronger if the fund is impressed with a trust, as discussed below. BC Benefits is a welfare scheme for persons who need its benefits and who are otherwise unable to pay the cost of their care. In the result, the problem in Wipfli of a double recovery of the cost of future care is unlikely to arise. The judgment of this Court in Semenoff v. Kokan (1991), 59 B.C.L.R.(2d) 195 dealing with medical services benefits is similarly distinguishable. Accordingly, in my opinion damages for cost of future care should be assessed without reference to BC Benefits. [21] It follows that the collateral benefits cases, concerned with the question of when overlapping benefits should be taken into account or ignored in the assessment of damages, are of no assistance. It is unnecessary to enter on the controversy over where the line should be drawn in those cases. [22] The trial judge did not determine the quantum of the post age nineteen cost of future care. His contingency figure of $80,000 included five per cent of the cost, but as part of a lump sum which included other contingencies. It is not clear how much of the $80,000 represented the five per cent contingency. Counsel for the parties extrapolated widely divergent totals for the capitalized costs. I do not think we are able to determine the amount on the basis of counsels' submissions and the reasons of the trial judge. Accordingly I would refer the assessment of the post age nineteen cost of care back to the Supreme Court for determination. Should the damages for cost of future care be impressed with a trust for the benefit of Mervyn Krangle? [23] During the course of oral argument we raised with counsel the question whether any award of damages for post age nineteen cost of future care of Mervyn Krangle should be impressed with a trust for his benefit. Written submissions were submitted after the hearing by the parties and the Public Trustee also submitted comment at the Court's invitation. [24] If the damages claimed had been based on a catastrophic birth injury, the cause of action would have been Mervyn's and the damages would routinely be held in trust for his benefit. Here, however, the child has no cause of action for his "wrongful birth" and the damages are awarded to the parents to compensate them for the cost of discharging their obligation to support him over his lifetime. The damages awarded are therefore tightly linked to Mervyn's cost of care, and intended for no other purpose. [25] The parents recognize the link between the damages awarded and the obligation to pay the cost of care. They have volunteered by way of an undertaking to the court to place the damages awarded for cost of care in trust for Mervyn. Counsel for the parents, however, opposes a trust imposed by the court. The respondent contends that no trust should be imposed because it would circumvent the fact that Mervyn has no cause of action. [26] The parents offer of a voluntary undertaking to place the damage award in trust is commendable and their good faith is unquestioned. Notwithstanding, I think the question whether these are circumstances in which the court should impose a trust is a question of principle which should be determined independently of the parents offer. [27] The use of a court imposed trust is not unknown in damage actions. In personal injury cases, damages for voluntary services are impressed with a trust routinely in favour of the third party who has supplied the services to the plaintiff: [see the cases summarized in Cooper-Stephenson, Personal Injury Damages in Canada, 2nd ed., 187-88]. The present case would represent an extension of that concept. It arises because of advances in medicine which allow fetal detection of Down syndrome and create the circumstances that have led to this litigation. The law should respond to changing circumstances where existing remedies can be adapted to meet new exigencies. The trust remedy is flexible and well-suited to the circumstances of this case. The sole purpose of the damages awarded for cost of future care of Mervyn is to pay his cost of care. The imposition of a trust would insure that the damages awarded for cost of care are dedicated to the purpose for which they are intended. The trust would protect the funds from dissipation or imprudent investment, insulate them from potential creditors of the parents and ensure that the portion of the funds remaining on the death of the parents would remain available for his care if he survives them. [28] In Ratych v. Bloomer (1990), 9 D.L.R.(4th) 25, at 54 (S.C.C.) McLachlin J. approved the use of a trust for voluntary services and contemplated the extension of the concept when the court is satisfied that it "is both necessary and appropriate in the interests of justice." Here the damages are awarded to satisfy a particular obligation to Mervyn who will be dependent upon his parents for the rest of his life to fulfill that obligation. If the award was lost or dissipated for whatever reason and the parents were unable to discharge their obligation Mervyn would have to be cared for at public expense. There is a public interest in maintaining the award through prudent investment for Mervyn's benefit. In my opinion it is necessary that the damages awarded be dedicated to that purpose and a trust in his favour is the most appropriate mechanism to achieve that objective. Accordingly I would direct that the damages to be awarded for cost of future care after age nineteen be held by the parents in trust for Mervyn. [29] Trust funds will be invested by the parents as trustees in investments authorized by the Trustee Act, R.S.B.C 1996, c. 464. The parents as trustees should have the power to apply the income from the funds so invested and portions of the capital as required from time to time for the care and benefit of Mervyn. The parents should be directed to submit an accounting to the Public Trustee every two years, in sufficient detail to permit the Public Trustee to review investments for compliance with the Trustee Act and to confirm expenditures made provide a direct benefit to Mervyn. Other terms of the trust may be addressed before the trial judge. Special education and in-home services issues [30] The appellants submit that the trial judge erred in determining certain items of the cost of care to age nineteen, related to special education assistance and in-home services. [31] The appellants contend that the award of only $10,000 as a contingency fund for special education assistance is inadequate. The appellants claimed for the cost of privately paid services to supplement the services generally available for special needs children in the public school. The appellants do not contest the finding by the trial judge that partial removal of Mervyn from the classroom for at-home tutoring would not be in his best interest. The claim is for privately paid assistance while Mervyn is in the classroom, on the premise that funding restrictions will impair the ability of the school to provide adequate assistance. The trial judge concluded that the parents would not be permitted to hire an educator to manage and teach Mervyn in the school. The appellants called evidence from a union representative to the effect that the union representing special education assistants would not object to privately funded assistants in the classroom provided they were employed within the collective agreement. However, the witness agreed that the issue was one for the employer not the union and there was no evidence that the school board would agree to a two-tier system where some students received privately paid services while others in the same classroom with similar special needs did not. In addition, safety is an important factor in the supervision of special needs students and the school authorities would be obliged to provide sufficient assistance to maintain adequate safety standards for special needs students. In my opinion, the appellants have not demonstrated any error in the conclusion of the trial judge on this issue. [32] The appellants submit that the trial judge erred in not including a GST allowance in the hourly rate determined for in-home services. It is submitted that he also erred in failing to account for Mervyn's attention deficit hyperactivity disorder ("ADHD") in estimating the amount of in home services required to assist the parents in caring for Mervyn. [33] The trial judge had before him evidence of hourly rates for in-home services ranging from $10 to $15.40 plus GST. He concluded that $12 per hour was an appropriate rate. The figure is an estimate within the range of hourly rates presented and I cannot infer that the trial judge overlooked GST in determining the $12 rate. I would not vary the estimate. [34] The trial judge referred to Mervyn's ADHD in his assessment of the parents need for in-home services to relieve the strain of caring for Mervyn. I am not satisfied that the trial judge made any error in his assessment of the medical evidence with respect to Mervyn's ADHD prognosis, or otherwise underestimated ADHD as a factor in determining the need for in-home services. I would dismiss the appeal on this issue. [35] In the result I would allow the appeal on the issue of the cost of care for Mervyn Krangle after age nineteen and remit the matter to the trial judge to determine that amount. The award will be impressed with a trust as outlined above. As the appellants have been successful on the dominant issue in this appeal they should have their costs of the appeal in full. "The Honourable Mr. Justice Mackenzie" I AGREE: "The Honourable Mr. Justice Hollinrake" Reasons for Judgment of the Honourable Chief Justice McEachern: Introduction. [36] I have had an opportunity to read the Reasons for Judgment of Mr. Justice Mackenzie on this appeal. He and the learned trial judge have adequately set out the facts of this most unfortunate case and there is no need for me to repeat what they have said in that connection. [37] With respect, I agree with Mr. Justice Mackenzie on the grounds of appeal argued with respect to the plaintiffs' damage award for the additional cost of care of their son Mervyn during his minority, that is until he reaches the age of 19 years. [38] I regret that I am unable to agree with Mr. Justice Mackenzie about the defendant's liability to the plaintiffs for Mervyn's cost of future care such as for group home living after he attains his majority. Instead, I have concluded that, because Mervyn has no cause of action of his own (because in law the defendant did him no harm), his post-19 years cost of future care may be recoverable from the defendant by his parents only if they have a legal obligation to support him after he attains his majority and if it is probable, subject to contingencies (the civil standard of proof for future events), that they will be required to do so. With respect, I do not believe that a moral obligation or a willingness on the part of the parents to be responsible for these expenses is sufficient to impose liability upon the defendant as found by the learned trial judge. As will be seen, the nature of the parent's obligation to support Mervyn after he attains his majority is central to this appeal. [39] As already indicated, the trial judge did make a damage award to the parents for the extra cost they will incur in supporting Mervyn until age 19 because of his disabilities. Then, after finding that the parents had a moral obligation to support Mervyn after he reaches 19 years of age, the trial judge found it was "...unlikely, subject to a 5% contingency, that there would be any cost to the parents for Mervyn's care after age nineteen." With respect, upon a consideration of the relevant law, I conclude that the parents will have no legal obligation to support Mervyn after he reaches 19 years of age, and that, in any event, it will not be necessary for them to do so. [40] In such circumstances, it is unnecessary for me to pronounce finally on the question of imposing a trust upon the parents with respect to this part of their claim. Nevertheless I shall have a few things to say about that interesting suggestion. The claim for post age 19 cost of care. [41] The quantum of this claim was seriously disputed both at trial and on the appeal. However, in view of the conclusions I have reached on this part of the appeal, it will not be necessary for me to review that aspect of this claim. [42] The trial judge found: [100] At age nineteen Mervyn will qualify for benefits under the Guaranteed Income for Need Act, commonly referred to as "GAIN". (That statute has been replaced by the B.C. Benefits [Income Assistance] Act but the benefits by transition appear to be the same so I will refer to them as GAIN benefits.) If he turned nineteen today, Mervyn would qualify to receive GAIN benefits of $654 per month. That would meet his group living home expenses. Under the social safety net he would be able to support himself. There is little reason to be concerned that he will not be in an identical position thirteen years from now when he does turn nineteen. [101] The expert evidence in this case is consistent in recommending that it will be in Mervyn's best interests as an adult that he live in a group home. There is no expert evidence to the contrary. The Krangles want what is best for Mervyn and they want him to have as much independence as possible. Mrs. Krangle expressed a wish, expressed by all realistic parents, for their own independence at the appropriate time. There is nothing in the case as presented by the plaintiffs inconsistent with this expectation. In his report, Dr. Armstrong said: Mr. Krangle expressed the desire that Mervyn would have the knowledge, skills and behaviours to function within a group home setting as an adult. His expectations were that this transition to a group home would occur at a time that was typical for normal children leaving home. [102] I conclude that it is unlikely that there will be any cost to the adult plaintiffs for the care of Mervyn after age nineteen. The social safety net is likely to be in place at that time to provide the same benefits he would be eligible to receive today. (Emphasis added.) [43] The trial judge went on to consider contingencies and concluded that the likelihood of such benefits not being available in Mervyn's case, together with other contingencies, was in the range of 5%. He therefore made an award for these contingencies in the sum of $80,000, which represents approximately 5% of the present value of the amount claimed for future costs. The Respondents have not appealed against this allowance and I would not interfere with it. [44] In reaching this conclusion, the trial judge found this case indistinguishable from Wipfli v. Britten, [1984] 56 B.C.L.R 273 (B.C.C.A.). With respect, I am not persuaded that is precisely correct. Wipfli was a case concerning British Columbia Hospital Insurance, a universal care program. The benefits under GAIN, however, are means tested and, as such, are not available to persons who have sufficient funds to maintain themselves. In my view, however, this is not a distinction of any importance in this case. The evidence is very clear that Mervyn will never be able to support himself. Thus, he will qualify for GAIN benefits, the present value of which is what the plaintiffs seek in this part of their claim. A distinction between universal plan coverage such as hospital insurance and plans like GAIN is not a useful one in the context of this case. [45] As there is no question on the findings of the trial judge that Mervyn will qualify for GAIN benefits when he reaches his majority, the conclusions of the majority make it necessary to consider whether any relevant legislation or regulations impose a liability upon the parents to underwrite this social cost. This requires a careful examination of the relevant legislation because, generally speaking, parents in British Columbia were not historically required by law to support their adult children i.e., beyond the age of 19. There have been some exceptions to this, particularly under matrimonial law, which allocates responsibility between parents for costs such as for the education of adult children of a marriage. In this respect, the general rule is stated in the Family Relations Act, R.S.B.C. 1996, c. 128, which defines "child" as a person under the age of 19 years. [46] There have, however, been a number of recent changes to the Family Relations Act, particularly sections 87 and 88(1), which were amended after the commencement of these proceedings. Those sections provide: 87. In this Part: "child" includes a person who is 19 years of age or older and, in relation to the parents of the person, is unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; . . . . 88. (1) Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child. (Emphasis added.) [47] As these sections of the Act are found in Part 7 - Maintenance and Support Obligations - they are obviously aimed at family law problems. Nonetheless, the language is probably broad enough, subject to what I shall say below, to cover cases such as this one. Retroactivity, Retrospectivity and Vested Rights [48] As mentioned, these new sections of the Family Relations Act were enacted after the commencement of this action. Indeed, they were enacted after the delivery of the trial judgment and before the appeal hearing. In light of this, the question arises whether these provisions can have any application to proceedings that were pending at the time of enactment. As should be expected, the law in this area has become terribly complicated and nice distinctions have been drawn between the three principles mentioned in the heading to this part of my Reasons. I propose to deal with this problem by considering each principle separately. Retroactivity [49] In Driedger on the Construction of Statutes, 3d ed. (Toronto: Butterworths, 1994) ("Driedger, 3d ed."), at 511, the present editor, Professor Sullivan, describes retroactive legislation as that which "changes the past legal consequences of completed transactions". Retrospective legislation, on the other hand, is described as that which "changes the future consequences of completed transactions by imposing new liabilities or obligations." [50] Ordinary retroactivity, it is stated, can usually be recognized by simply reading the statute. A retroactive statute will contain a provision that "changes the law as of a time prior to its enactment": C.A. Driedger, the Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983), ("Driedger, 2d ed.") at 186. There is nothing in ss. 86 and 87 that purports to accomplish such an effect. Retrospectivity [51] Retrospectivity refers to the effect a statutory provision has on existing circumstances. In Driedger, 2d ed., at 186 it is stated: "A retrospective statute...changes the law only for the future, but it looks to the past and attaches new prejudicial consequences to a completed transaction" or, as in this case, to a tort. [52] The issue of retrospective application was clarified by this Court in MacKenzie v. B.C. (Commr. of Teachers' Pensions) (1992), 94 D.L.R. (4th) 532 (B.C.C.A.). In this case, a widow claimed she was entitled to certain benefits pursuant to an amendment to the Pension (Teachers) Act. In 1978, under the old legislation, her husband, upon his retirement, elected to take his pension under the "single life" plan. The effect of this plan was to maximize his benefits during his lifetime, however, nothing would be provided for his widow on his death. In 1988, s. 14(1.1) was added to the Act. It read: 14(1.1) Where an employee is married on the date he elects a plan under sub-section (1), he shall be deemed to have elected that 60% of his superannuation allowance be paid on the joint life and last survivor plan... On her husband's death in 1989, the widow claimed to be entitled to 60% of her husband's allowance pursuant to s. 14(1.1). [53] After some analysis, it was determined that the amendment dealt with the actual act of electing a plan. To apply the amendment to the husband's 1978 election would have the effect of altering the legal character of a past occurrence, clearly a retrospective application. [54] There is a prima facie presumption against the retrospective operations of statutes. In Phillips v. Eyre (1870), L.R. 6 Q.B. 1 at 23 Willis J. stated: Retrospective laws are, no doubt, prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law ... Accordingly, the Court will not ascribe retrospective force to new laws affecting rights, unless by express words or necessary implication it appears that such was the intention of the legislature. [55] This accords with the views of the Supreme Court of Canada as expressed by Dickson J. (later C.J.C.) in the case of Gustavson Drilling (1964) Ltd. v. M.N.R., [1977] 1 S.C.R. 271 at 279 where he said: The general rule is that statutes are not to be construed as having retrospective operation unless such a construction is expressly or by necessary implication required by the language of the Act. [56] Although it is not particularly difficult to define the concept of retrospectivity, it is often a great deal more difficult to recognize when legislation is being given retrospective application. Consider the case of A.G. Quebec v. Expropriation Tribunal, [1986] 1 S.C.R. 732 where the provisions for abandoning an expropriation were changed after the commencement of an expropriation. It was held that the amendments did not operate retrospectively as they did not seek to affect any completed past transactions, but instead applied only to the ongoing expropriation process. In essence, if the relevant facts with which a provision is concerned are not all in the past, the application of the provision, when it is enacted, is "immediate" as opposed to "retrospective". [57] Considering the above example, I must say that I doubt whether the legislation under consideration can be said to operate retrospectively in the circumstances of this case as it does not actually alter the legal character of a completed past event. [58] Instead, the effect of the new legislation, if at all, is engaged by "present" or "ongoing" or "future facts", or "facts in progress". These facts relate to the determination of the kinds of damages being considered. Although they are consequent upon a past tort, these facts will arise when Mervyn reaches 19 years, subsequent to the enactment of the new sections. [59] Considering the application of the new provisions of the Family Relations Act I am not persuaded they can be said to operate retrospectively in the circumstances of this case. Interference with Existing Rights [60] The general principle is described by Lord Denning M.R. in his decision in Attorney General v. Vernazza, [1960] A.C. 965 (C.A.) where he stated at 978 that it is "clear that in the ordinary way the Court of Appeal cannot take into account a statute which has been passed in the interval since the case was decided at first instance, because the rights of litigants are generally to be determined according to the law in force at the date of the earlier proceedings." In fact, it appears from the cases that the relevant date is not the date of the trial judgment but rather the date the proceedings are commenced by issuing a Writ of Summons or Petition: Hampton Lumber Mills Ltd. v. Joy Logging Ltd., [1977] 2 W.W.W. 289 (B.C.S.C.). [61] The general presumption with respect to this principle is that "...a new statute does not apply to pending actions, in the absence of a contrary intention in the statute...": Driedger, 2d ed., p. 191. Driedger notes that this presumption arises not because the application of the newly enacted legislation would give it retrospective effect but, rather, because its application would affect existing rights. [62] There is a great deal of jurisprudence supporting this principle. It was explained in the following terms by Duff C.J.C. in Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, [1933] S.C.R. 629 at 638: A legislative enactment is not to be read as prejudicially affecting accrued rights, or "an existing status" (Main v. Stark), unless the language in which it is expressed requires such a construction. The rule is described by Coke as a "law of Parliament" (2 Inst. 292), meaning, no doubt, that it is a rule based on the practice of Parliament; the underlying assumption being that, when Parliament intends prejudicially to affect such rights or such a status, it declares its intention expressly, unless, at all events, that intention is plainly manifested by unavoidable inference. [63] In Gustavson, (supra) Dickson J. at p. 282 wrote: The rule is that a statute should not be given a construction that would impair existing rights as regards person or property unless the language in which it is couched requires such a construction: Spooner Oils Ltd. v. Turner Valley Gas Conservation Board at p. 638. The presumption that vested rights are not affected unless the intention of the legislature is clear applies whether the legislation is retrospective or prospective in operation... (Emphasis added.) Dreidger, 3d ed., at 530 explains the principle as follows: To deprive individuals of existing interests or expectations that have economic value is akin to expropriation without compensation, which has never been favoured by law. To worsen the position of individuals by changing the legal rules on which they relied in arranging their affairs is arbitrary and unfair. Where the application of new legislation creates special prejudice for some, or windfalls for others, the burdens and benefits of the new law are not rationally or fairly distributed. These effects may be hard on the individuals involved and they undermine the general security and stability of the law. For these reasons interference with vested rights is avoided in the absence of a clear legislative directive. [64] The principle itself seems clear enough. The difficulty, however, is in identifying the kinds of rights that will be protected by the principle. Academics and others have debated this requirement in various writings but I find much more assistance in the decided cases, many of which recognize immunity from suit as a vested right. [65] In Martin v. Perrie, [1986] 1 S.C.R. 41, the defendant physician had performed a medical procedure on the plaintiff in 1969. At that time, the limitation period for actions against physicians was one year from the termination of medical services. In 1974, legislation amended the limitation period to one year from the date the plaintiff knew or ought to have known of the facts giving rise to a cause of action. The plaintiff learned of these facts in 1979 and immediately brought an action. Writing for the Court, Chouinard J. adopted the dissenting Reasons for Judgement of Thorson J.A. in the court below which may be found at: Perrie v. Martin, (1983), 148 D.L.R. (3d) 193 (Ont. C.A.). Thorson J.A. decided the application of the amended provision would affect the defendant's right to order his affairs based on the reasonable belief that he no longer faced any potential liability. He stated at 204 that the defendant's "accrued legal right to order his affairs on the above basis is, in my opinion, the single most telling argument against any construction of the new legislation which either ignores, or treats as a matter of no significance," the importance to a medical practitioner of ordering his affairs at the expiration of the limitation period. [66] To the same effect was Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256 where the plaintiff was injured in a motor vehicle accident caused by the negligence of her husband. At that time, the law of Ontario barred individuals from bringing actions in tort against their spouse. Two months after the accident, an amendment effectively repealed this prohibition. The plaintiff then brought an action against her husband. LaForest J., writing for the Court, applied the presumption against the application of the amendment because it would substantially affect the "vested rights" of the husband. He said at 266 that "...the removal of the defence entirely ... is in essence an interference with a vested right." [67] There are a number of other authorities to the same effect, although many rely upon the preservation of pre-existing rights (often defences) only as support for the presumption against retrospectivity. In a number of these cases, the legislation clearly did not operate retrospectively and the court ought to have considered only the presumption against interference with vested rights; however, the confusion is understandable in such a complex area of law. Regardless, it seems clear to me that in the absence of express statutory language (as in this case), there is a presumption that pre-existing causes of action or defences are preserved against legislation enacted after litigation has been commenced: Stephenson v. Parkdale Motors (1924), 55 O.L.R. 680 (Ont. C.A.); Kearley v. Wiley, [1931] 2 D.L.R. 68; (Ont. C.A.); Foy v. Foy (1978), 20 O.R. (2d) 747 (Ont. C.A.); and Canada (A.G.) v. Lavery (1991), 76 D.L.R. (4th) 97 (B.C.C.A.); Karras v. Richter, [1995] 7 W.W.R. 406 (Sask. Q.B.). [68] This is not a case like Western Minerals Ltd. et al. v. Gaumont et al., [1953] 1 S.C.R. 345, where it was held that courts should apply recently enacted legislation that declares what the law has always been. The law in this case was quite different before the enactment of these sections of the Family Relations Act. [69] The question then arises whether this protection extends not just to the transaction (or tort) in question, but also to the consequences, in this case a head of damages for a pre-existing tort. According to S.M. Waddams, The Law of Damages (Toronto: Canada Law Book Company, 1983) at par. 1100: One area in which the general rule of early crystallization does not apply is the field of personal injury compensation, where all events right up to the date of assessment are taken into account. Thus, changes in the plaintiff's medical condition, increases in the cost of medical services and increases in rates of remuneration occurring between the injury and the trial are all relevant. (Emphasis added.) [70] The same would also apply to the period pending appeal as fresh evidence may often be admitted to prove that the scope of damages has been altered between trial and appeal. It must be recognized, however, that Professor Waddams states that all "events" leading up to the date of final assessment, such as changes in the condition of the plaintiff, may be taken into account. Such a contention is probably not seriously open to question. In my view, however, a legislated change affecting the rights of either party is quite a different thing, amounting, in this case, to an increased liability on the part of the defendant in the order of several hundred thousands of dollars. [71] It has been noted that it is often difficult to identify a vested right and determine when it will be protected against the operation of a particular statute. Fortunately, this issue has attracted the attention of a number of scholars. In her recent book, Statutory Interpretation, (Concord Ontario: Irwin Law, 1997), Professor Sullivan at 191 draws a distinction between abstract rights (those interests and expectations that are recognized and protected by the courts), and vested rights (protected interests or expectations that are actually held by a particular person). While legislation often and quite legitimately interferes with abstract rights there is a strong presumption that it does not interfere with vested rights. [72] In Driedger, 3d ed. At p. 530, Professor Sullivan suggests that in every case a court must decide "whether the particular interest or expectation for which protection is sought is sufficiently important to be recognized as a right and sufficiently defined and in the control of the claimant to be recognized as vested or accrued." She also notes that property and contractual rights, rights to [existing] damages or other common law remedies, and defences and immunities from suit are all easily recognized rights. She says that such common law "private" rights are generally considered to be of significant importance. [73] Some judges have suggested the classification of an interest or right as a vested right depends on whether the denial of the right would cause a grave injustice: Syndics des Ecoles Protestantes d'Outremont v. Outremont, [1952] 2 S.C.R. 506, or whether the right in question has been "personalized" in the sense that the claimant stands in a legal position different from that of other members of society in relation to the right: Scott v. College of Physicians & Surgeons (Saskatchewan), [1993] 95 D.L.R. (4th) 706 (Sask. C.A.). [74] In my view, by analogy to immunity from suit, there is no difference in principle between an enactment materially affecting a cause of action and one which materially affects a pre-existing defence to an identifiable claim arising out of a cause of action. In this case, at the time proceedings were commenced, the defendant was not subject to claims by the plaintiffs for future cost of care after Mervyn attained the age of 19 years. This defence, in my view, satisfies most of the tests that have been suggested for determining whether to classify this immunity as a "vested" right. Therefore, it follows that to apply the recently amended provisions to this case would deprive the defendant of a vested right. [75] A similar case involving an amendment to the quantum of damages pending suit is Garnham v. Tessier and Winter (1959), 27 W.W.R. 682 (Man. C.A.). In that case, at the time the proceedings were commenced, the monetary jurisdiction of the County Court was limited to $800. Later, before the trial began, this jurisdiction was amended by legislation to a maximum of $1,000. Even though the plaintiff's claim was amended accordingly, the trial judge, affirmed by the Court of Appeal, held that the statute should not be applied to cases pending at the time of the amendment. The Manitoba courts relied in part on a provision in the Manitoba Interpretation Act that created a statutory presumption against the application of enactments to pending litigation unless expressly stated otherwise. In my view, however, the provision relied upon in that case only re-states the common law and the same presumption should be applied here. [76] Garnham is also important in another way. It might be argued that by not applying these amendments the Courts would prejudice the plaintiffs by imposing upon them the possibility of responsibility for cost of future care. While I doubt that such will come about in this case, I note that in his concurring judgement, Adamson C.J.M. stated that there is no authority for the proposition that a statute should be applied in order to enlarge the rights of a party. [77] Finally, I should mention the case of Coward v. Comex Houlder Diving Ltd. (1988), Kemp Vol. 3, 172-232 C.A. a fatal accident case in which the English Court of Appeal had to consider the applicability of amendments to the tax law which were enacted after damages had been assessed at trial. While recognizing that events occurring during litigation could affect the assessment of future loss, usually by the admission of fresh evidence, the Court declined to consider the changed tax rates more as a matter of discretion than of law. In doing this, the Court relied heavily on the principle that "for better or worse, the assessment at the trial is once and for all". As I read the judgment, it seems that the Court treated the tax changes more as an "event" which could be changed again and again. Although the result in this case is similar, it cannot be regarded as a considered judgement respecting interference with vested rights by subsequently enacted legislation. [78] In view of the foregoing, and in light of the fact that there is no express or implied language in the legislation indicating that it was intended to apply to pending litigation, I would hold that the newly enacted provisions of the Family Relations Act may not be considered in this case. Alternatively, the Construction of these Amendments [79] Because these new sections are found in Part 7 of the Family Relations Act, headed "Maintenance and Support Objectives", they are obviously intended to reflect the modern trend in family law to require family members to support their less fortunate members in some circumstances. Section 87 has extended the definition of "child" to include a person who "is unable, because of illness, disability or other cause, to withdraw from their [parents'] charge or to obtain the necessaries of life." I take the word "charge" in s. 87 to be equivalent to "care". In the context of this case, however, subject to what follows, I conclude that these sections have no application to this case because the evidence is clear that Mervyn will be able to, and should, in his best interests, withdraw from the "charge" of his parents and live in a group home, at which point he will be able to "obtain the necessaries of life" under GAIN. Section 88 imposes liability upon parents with respect to children over the age of 19 years only when those conditions cannot be satisfied. [80] It thus becomes necessary to examine the GAIN legislation. Section 24.1(1) of the Act provides that Regulations may be made: ...governing the assignment of maintenance rights and the recovery of the amount of income assistance provided in place of maintenance... [81] While the meaning of the underlined words is not entirely clear, I believe they refer to benefits that are provided because some form of "maintenance" is not being paid. [82] Section 24 also provides authority to make regulations prescribing categories of persons who are not eligible for income assistance unless they assign their maintenance rights to the Minister. It is apparent that the intention of this provision is to authorize regulations that will permit the plan to obtain from a person receiving GAIN benefits the assignment of maintenance rights in exchange for those benefits. [83] Part 7 of B.C. Regulation 75/97 seems to be a regulation made pursuant to s. 24.1(1). Section 77 (which is in Part 7) provides a number of definitions, most of which relate to matrimonial situations. Section 78, headed "Categories of persons who must assign" provides that persons in the enumerated categories who have a maintenance right specified in s. 79 must assign that right to the Minister. The enumerated categories include spouses, spouses with dependent children, single persons with dependent children, and "(d) a person under 19 years of age who is not residing with his or her parents." Persons over the age of 19 who are neither spouses nor persons with dependent children are not included in s. 78, and they need not assign their maintenance rights, if any, to the Minister. [84] The categories of maintenance rights specified in s. 79 that must be assigned to the Minister are very broad and include "(a) the right to make an application under an enactment of British Columbia for a maintenance order". However, I consider that this section is controlled by s. 78 which specifically provides the classes of persons who must assign maintenance rights. [85] I conclude, therefore, that under current legislation, Mervyn would qualify for GAIN benefits upon attaining his majority and there would be no authority to require him to assign any maintenance rights he might have under sections 87 and 88 of the Family Relations Act. Upon attaining the age of 19 years, Mervyn would withdraw from the charge of his parents and he would not be unable "to obtain the necessaries of life". Therefore, he would have no maintenance claims against his parents under the above-quoted sections of the Family Relations Act that he could assign to the Minister even if he were then requested to do so. [86] Thus, in my view, the only contingency is whether GAIN benefits will still be available when Mervyn reaches the age of 19 and beyond. If they are not, then the parents may have a continuing maintenance liability under the Family Relations Act. If and when that question arises, it would have to be considered in terms of a retrospective analysis which I need not undertake in this case. It goes without saying that the parents are in a different position from the defendant. [87] As already mentioned, the trial judge has found that GAIN benefits are "likely" to be available, subject only to a 5% contingency, when Mervyn reaches 19 years of age and beyond. This finding is fully justified both by the history of this kind of legislation in this province, and by ample evidence adduced at trial. I cite the following examples: 1. Dr. Joschko, on behalf of the defendant stated in his report: Mervyn should be eligible for government funded income assistance and benefits such as those obtained through Guaranteed Available Income based on Need (GAIN) funding and, more importantly, support services through the Ministry of Children and Family Services to Person With Mental Disabilities division. Down syndrome is a very common form of intellectual disability and Ministry staff will be familiar with Mervyn's special needs and the available programs to meet those needs... 2. Dr. Drywaniuk, the plaintiff's consulting psychologist agreed with Dr. Joschko's opinion just quoted. 3. Ms. MacLean, an occupational therapist called by the Plaintiffs gave this answer: Q. --at the present time there is no user fee to the individual or his family for group home living. For semi-independent living, the individual pays $22 per day and this money comes out of their GAIN... A. That's correct. [88] As already mentioned, there is always a possibility that circumstances will change at some point after the date of trial until Mervyn's majority, or thereafter, for better or worse. However, in practical terms, it is so unlikely that disabled persons like Mervyn will not be looked after by the state in a province like British Columbia, that the trial judge was entitled to conclude on the evidence that the plaintiffs will not be required to maintain Mervyn after he reaches his majority. We should not disregard that finding: Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114. [89] The parents argue that the result of the trial judgment is that Mervyn will be kept in poverty so that he will qualify for benefits. With respect, that is not a correct characterization of the trial judgment. In the first place, it is unlikely that he will ever have any assets or that his individual economic prospects will be prejudiced in any way by the outcome of these proceedings. Second, and in any event, the scheme of the GAIN legislation is such that beneficial interests in assets of up to $100,000 (or possibly more), would not disqualify him from GAIN benefits. [90] Last, I wish to say a few words about collateral benefits. This is not a collateral benefits case, of which there are so many. Those cases deal with circumstances where a question arises whether the victim of a tort, such as in Cherry (Guardian ad litem of) v. Borsman, [1992] 6 W.W.R. 701 (B.C.C.A.), must suffer a reduction in damages otherwise payable by a tortfeasor because the victim is entitled to benefits payable under an insurance, pension or income maintenance scheme or arrangement. The law in this area has become far too subtle and complicated, but we need not deal with it because in this case, unlike the collateral benefits cases, it is conceded that Mervyn, the person who will receive benefits under welfare legislation, has no entitlement to damages. The only question is whether his parents can recover damages they will not likely be called upon to pay. I have already answered that question and I do not find it necessary to say anything further about collateral benefits. [91] For these reasons, I agree with the trial judge that the plaintiff-parents are not entitled to recover damages representing the cost of future group home accommodation and income maintenance because funding for such necessaries will likely be furnished directly to Mervyn under GAIN. The allowance of $80,000 as a contingency has not been shown to be wrong or inadequate in the circumstances nor has it been contested. The Trust Question. [92] On the Court's motion, counsel and the Public Trustee were requested to furnish submissions about the idea of impressing the parents' recovery for future cost of care, if any, with a trust in favour of Mervyn. Although I have concluded that there should be no recovery on this head of damages, I offer the following comments. [93] In my judgment, there is no authority justifying the imposition of such a trust in a case such as this. It must be remembered that Mervyn (the proposed beneficiary of the trust) has no claim to damages. If the parents have a claim, it is to assist them to discharge their legal obligation to support their child after he attains the age of 19 years under legislation that does not affect the defendant. But as already mentioned, Mervyn is not likely to need that assistance from the plaintiffs. Thus, the creation of a trust in these circumstances would serve only to protect a fund that will not likely be needed. In fact, if Mervyn were to be the beneficiary of a substantial trust, the effect might be to deprive him of benefits to which he would otherwise be entitled. Finally, as mentioned earlier, it is conceivable that when Mervyn reaches the age of 19 years or thereafter, the benefits payable under GAIN could even be greater than they are now. I need not go further and discuss the problems that might arise by reason of the likely reduction in actuarially calculated damages for the payment of legal fees. [94] Because Mervyn does not have a cause of action, there is no parallel between this case and the so-called "in trust" claims for housekeeping and other assistance. Those claims are paid in trust for replacement services required while a parent looks after an injured spouse, parent or child who themselves have a cause of action. [95] It cannot be disputed, in view of Ratych v. Bloomer, [1990] 1 S.C.R. 940 at 978-983 that the trust concept may be used to provide compensation for voluntary services when necessary and appropriate in the interests of justice. The purpose of the trust here, however, is to impose an unnecessary liability upon the defendant for the benefit of a person who has no claim against him. It has been said, wisely, I think, that new equitable rights should be created only with the greatest possible care. [96] I have no doubt that occasions will arise when it may be necessary for equity, as a part of the growing tree of the law, to create new remedies. I doubt, however, if it is necessary to establish a rule of equity that a plaintiff's damage award can be impressed with a trust in favour of a third person who has no claim to the money. Any extension of this branch of the law should, in my view, be left to the Legislature. [97] Last, I wish to observe that, if there is to be a judicially-created trust, I would think the Public Trustee should be a trustee. Further, the order creating such a trust should specify what is to happen to the corpus of the trust if, unhappily, Mervyn does not survive long enough to exhaust the fund. Presumably it would devolve to the parents as a windfall. Conclusion. [98] I would dismiss this appeal. "The Honourable Chief Justice McEachern"