IN THE
SUPREME COURT OF BRITISH COLUMBIA

Date: 20110624

Docket: M075392

Registry:
Vancouver

Between:

Roy
James, Administrator of the Estate of Secret Sandi James (deceased), Sandi
James, Devin Michael Treis, an infant by his Litigation Guardian, Michael
(Mike) Treis, Larissa Alexis Law, an infant by her Litigation Guardian, Weston
Law, Klay Richard Roy Cornet, an infant by his Litigation Guardian, Gary Cornet
and the said Roy James

Plaintiffs

And

Baylen Gillis

Defendant

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Madam Justice Watchuk

Reasons for Judgment

Introduction

[1]            
This is an action for damages arising out of the death of Secret Sandi
James. It is brought pursuant to the Family Compensation Act, R.S.B.C.
1996, c. 126. Secret James died in a motor vehicle accident on August 24,
2006. Liability for the accident was not in issue in this trial. The Defendant
was not present or represented. ICBC defended the action pursuant to the
provisions of the Insurance (Motor Vehicle) Act, RSBC 1996 c. 231.

[2]            
There are three remaining plaintiffs in the action: Gary Cornet, Ms. James’
common-law spouse; Roy James, Ms. James’ father; and Sandi James, Ms. James’
mother.

[3]            
The claims brought for the benefit of Ms. James’ three children
Devin Treis, Larissa Law, and Klay Richard Roy Cornet have been or are in the
process of being settled. Accordingly, no determination is required of the
Court regarding those individuals.

Issues

[4]            
Ms. James’ entire family suffered a tragic loss. Her children
were young, 15, 4 and 2, at the time their mother died. Her parents’ lives were
changed forever by the accident. Mr. Cornet lost his partner. The law does
not attempt to compensate her family for their immeasurable loss. It does however
attempt to provide fair and adequate monetary compensation for their pecuniary
losses.

[5]            
The issues in this matter are:

a.     Does Gary
Cornet qualify as a “spouse” within the definition in the Family
Compensation Act;

b.     If Gary
Cornet is a spouse as defined, what compensation is he entitled to receive; and

c.     What
compensation, if any, are Roy and Sandi James entitled to receive?

Facts

Secret James

[6]            
Ms. James was 36 years old at the time of her death. She was born
on July 15, 1970. Her parents, Roy and Sandi James, have been married 41 years.
Their daughters were Secret and Chanel, who is three and a half years younger
than Secret. The sisters grew up in Merritt, British Columbia where the family
lived until Mr. and Mrs. James moved from Merritt to Wyndel, ten
minutes north of Creston, in 1999 when Mr. James retired.

[7]            
Ms. James moved out of the family home in Merritt at age 17 and
lived with a girlfriend. She did not graduate from high school as she quit
halfway through grade twelve.

[8]            
Her first child, Devin Michael Treis, was born on May 15, 1991. His
father, Michael Treis, continued to be in his life after the separation, and
Devin went to live with him after his mother’s death in 2006.

[9]            
From 1990 to 2001 Ms. James worked at five different jobs in
Merritt. She worked at the MacLeod’s True-Value for four months in 1990
assembling displays and stocking shelves. For eight months from September 1995
she did reception and bookkeeping and was a chamber-maid at the Sportsman
Hotel. After that job ended in May 1996 she worked as a server at the Homestead
Diner until December 1996. From December 1996 until November 1998 she was a
server and bartender at the Grasslands Cantina. Again from 1999 to 2001 she
worked as a cashier and in customer service at the MacLeod’s True-Value.

[10]        
Ms. James enrolled in a computer program at the Academy of Learning
starting January 2, 2002, but withdrew from that program on January 28, 2002.

[11]        
Ms. James’ second child, Larissa Law, was born on August 13, 2002.
Her relationship with Larissa’s father, Weston Law, ended in the summer of
2003.

[12]        
Ms. James’ last job was at Extra Foods in Merritt in the first few
months of 2006.

Relationship of Secret
James and Gary Cornet

[13]        
Some of the facts regarding the relationship are not in issue. In
addition to Mr. Cornet, the witnesses who testified about the relationship
were:  Laurie August, a close friend of the family who lived in Merritt; Mr. and
Mrs. James, the parents of Secret; Tina Cornet, the sister of Mr. Cornet;
and Robert Davey, a good friend of Mr. Cornet. Each of them was a credible
and well-intentioned witness. Ms. August had the best opportunity to
observe since she lived in Merritt and was a frequent visitor to the family
home. Mr. Cornet was descriptive of events and history generally but had
limited recall of dates. Mrs. Sandi James spoke frequently to her daughter
by telephone but was not often in Merritt.

[14]        
From the evidence of these witnesses I make the following findings of
fact. In a later section I will return to these facts and review them with
regard to the issues that must be determined. One of the issues is the date
that Mr. Cornet commenced living with Ms. James.

[15]        
Ms. James met Gary Cornet in 2002 when she was living with Weston
Law. They started an affair a few months after they met. In the summer of 2003
they became a couple and Ms. James ended her relationship with Mr. Law.

[16]        
When Mr. Cornet moved in with Ms. James she was living with
Larissa, then one year old, and Devin, who was then 12.

[17]        
In September 2003 Ms. James became pregnant with their son Klay.

[18]        
After Mr. Cornet moved in with Ms. James, Larissa, and Devin,
he viewed the four of them as a family and treated her children as his
children. He often went hunting and fishing with Devin, and saw himself as more
or less Larissa’s dad as Mr. Law was no longer actively involved in
parenting. Mr. Cornet is described as being a good father to Ms. James’
children.

[19]        
Mr. Cornet described his relationship with Ms. James as “a
couple” and referred to her in public as his wife or “my old lady”. He loved
her and he never fell out of love. Ms. James told her mother that he was
“the one”.

[20]        
Their social life was together in Merritt and the surrounding area as a
couple and a family. They often went to the lake, river, and swimming holes
with friends, their families and children. Family photos show events including
the family with baby Klay at their Auntie Tina’s, Klay’s first birthday, Klay
as a baby with his father at Petite Creek, and the parents with Larissa and
Klay at their home.

[21]        
Mr. Cornet’s only vacations without Ms. James were on hunting
and fishing trips with his good friend, Robert Davey. Ms. James went with
the children approximately twice a summer to visit her parents in the Kootenays.
She would drive with her father when he went home between his relief shifts at
the mine near Merritt. Mr. Cornet, who worked during the summers, did not
accompany her and the children on these trips.

[22]        
Mr. Cornet and Ms. James slept in the same bed. He did not
have a physical relationship with any other person and he did not know of her
having any physical relationship with any other person in the years they were
together as a couple.

[23]        
Ms. James and Mr. Cornet had plans to marry. The evidence with
regard to the date of the engagement is not clear. Mr. Cornet testified
that he asked Ms. James to marry him when Klay was small, in 2003 or the
winter of 2004, although he was not sure of the dates. He asked Robert Davey to
be his best man. Ms. James’ mother testified that the engagement occurred
in December 2003, as she had made a computer “Congratulations” card for Secret
and Gary dated December 25, 2003. In February of 2004 Mrs. Sandi James
purchased a wedding dress, anklet and sandals for Secret. I find that the
engagement occurred in December 2003.

[24]        
Mr. Cornet gave Ms. James his mother’s engagement ring. She
continued to wear the ring until her death.

[25]        
Mrs. Sandi James also made wedding invitations on her computer for
her daughter. However, the wedding was postponed two or three times and did not
take place largely due to financial reasons or Mr. Cornet’s work schedule.

[26]        
The arrangements for taking care of the home and children were
traditional. Ms. James did not work outside the home, and took care of
most of the domestic chores including laundry and grocery shopping for the
family. When Mr. Cornet was not away working, he assisted with the chores
and cooking and did the outside maintenance.

[27]        
With regard to the financial arrangements in the family, Mr. Cornet
testified that everything was combined. He paid the bills from his income as Ms. James
was not working. He brought his earnings to the house and it was distributed
according to the needs of the family. Although they kept separate bank
accounts, Ms. James had the full use of Mr. Cornet’s bank card
without restriction.

[28]        
Mr. Cornet worked for two employers between 2003 and 2006:
Craigmont Mines and Cortes Construction. At both of the jobs his work was
seasonal, from early spring to late fall. During the work season he was home
primarily on his days off, often sleeping at the work sites. He was laid off
during the winter months and received Employment Insurance benefits.

[29]        
Ms. James was in receipt of Social Assistance benefits from August
to November, 2003; in November and December, 2004; and from January to March
and June to August, 2005. Mr. Cornet did not know of the Social Assistance
payments made to Ms. James. She also had Court Orders for child support
payments for Devin from February 2004, and for Larissa from November, 2003. Mr. Cornet
was not aware of which child support payments were received by Ms. James.

[30]        
Klay was born a month early, on May 27, 2004. Mr. Cornet was
present at the birth.

[31]        
The relationship became rocky in the months following Klay’s birth.

[32]        
On October 22, 2004, Mr. Cornet was charged criminally with
threatening Secret James, Devin James, and other persons; with the unlawful use
of a rifle; and with causing suffering by choking to a cat. He was released on
bail with terms which included that he was to have no contact with Secret James
and Devin James; that he was not to be within 100 metres of the residence at
1698 Douglas Street, Merritt, or any other place where Secret James resided;
and that he must reside with his sister, Tina Cornet, in Lower Nicola.

[33]        
Mr. Cornet did not abide by the bail term of no contact with Secret
and Devin or with the term that he not go to the residence on Douglas Street. Mr. Cornet
continued to have contact with Ms. James and the family, continued to
spend nights at their residence on Douglas Street, and continued to provide
financial support to Ms. James and the children. He did not move his
household possessions from the Douglas Street residence.

[34]        
 Throughout the period of the no contact order in the bail recognizance
from October 27, 2004 to January 4, 2005, Mr. Cornet and Ms. James
spent most of their time together. On December 6, 2004, he applied to vary his
bail by removing the no contact condition with Secret James, his “common-law
partner”, but the application was denied.

[35]        
He pled guilty to the three charges and was sentenced on January 4, 2005,
to two years’ probation. The probation order included the term that he was to
leave Ms. James’ presence on her request, but did not include a no contact
order or an order prohibiting him from going to the residence. They resumed
living together without restriction.

[36]        
The pre-sentence report prepared for the court at that time describes Ms. James
as Mr. Cornet’s common-law partner, and indicates his hope to reconcile
with her as soon as possible. Ms. James told the writer of the report that
she would like Mr. Cornet to return home. The report indicates that Mr. Cornet
and Ms. James have a five month old son, Klay, and that they commenced
their common-law relationship “approximately one year ago”.

[37]        
On June 23, 2005, Ms. James was placed on Mr. Cornet’s Great
West Life benefits coverage with his employer, Craigmont Mines.

[38]        
In July of 2005 they separated and then reconciled in the fall of 2005. Mrs. Sandi
James described the separation as arising from a “little tiff”. In August 2005 Ms. James
obtained an order from family court that Mr. Cornet pay child support for
Klay. Her mother advised her to “get it on paper” and counsel representing Ms. James
on that application was counsel for the Ministry of Human Resources. Ms. James
received Social Assistance in June, July, and August of 2005.

[39]        
After their reconciliation in the fall of 2005 they remained together
until January 2006. During that time, in October, Mr. Cornet applied for
MSP coverage for Ms. James, Larissa and Klay.

[40]        
In January 2006 Ms. James moved out of the family residence with
the children and took all of her personal possessions. She obtained her own
residence in Merritt and worked at Extra Foods in Merritt.

[41]        
On February 1, 2006, Ms. James and Larissa were removed from Mr. Cornet’s
Great West Life benefit plan at Craigmont Mines at his request.

[42]        
Ms. James moved to Salmon Arm with the children to live with her
sister in the spring of 2006. She took all of her possessions with her. Mr. Cornet
visited occasionally to see Klay and remained on cordial terms with Ms. James.
During the visits they discussed reconciliation.

[43]        
In March 2006 Mr. Cornet purchased the property at Mamette Lake in
his own name. He testified that Ms. James saw the property before he
completed the purchase.

[44]        
Three weeks before Ms. James’ death on August 24, 2006, she and the
children moved in with Mr. Cornet at the Mamette Lake trailer.

Positions of the
Parties

[45]        
On behalf of the plaintiffs it is submitted that Ms. James and Mr. Cornet
were in a marriage-like relationship from August or September of 2003 until her
death in August 2006. The separations were mere cooling off periods and did not
bring an end to their relationship.

[46]        
The third party submits that the marriage-like relationship between Ms. James
and Mr. Cornet did not begin until December 2003 at the earliest. The
separation in October 2004 was not a cooling off period. The separation
beginning in July 2005 was also not a cooling off period, but ended the
relationship. The new relationship, which was attempted in the fall of 2005,
ended in January 2006. The requirement that the relationship must have been in
existence for a period of not less than two years is therefore not met.

[47]        
In addition, the third party submits that the requirement that the
relationship be a “marriage-like relationship” is not met. Mr. Cornet
therefore does not meet the definition of spouse.

The Law

[48]        
The relevant provision of the Family Compensation Act is the
definition of spouse. It is as follows:

"spouse" means a person who

(a) was married to the deceased at the time of death,
or

(b) lived and cohabited with the deceased in a
marriage-like relationship, including a marriage-like relationship between
persons of the same gender, for a period of at least 2 years ending no earlier
than one year before the death;

[49]        
In Roach v. Dutra, 2009 BCSC 229, the court considered the
definition of spouse in the Family Relations Act, R.S.B.C. 1996,
c. 128. Under s. 1(1) of the Family Relations Act, spouse is
defined as:

"spouse" means a person who

(a) is married to another person,

(b) except under Parts 5 and 6, lived with another
person in a marriage-like relationship for a period of at least 2 years if
the application under this Act is made within one year after they ceased to
live together and, for the purposes of this Act, the marriage-like relationship
may be between persons of the same gender,

(c) applies for an order under this Act within
2 years of the making of an order

(i)  for dissolution of the person’s marriage,

(ii)  for judicial separation, or

(iii)  declaring the person’s marriage to be null and
void, or

(d) is a former spouse for the purpose of proceedings
to enforce or vary an order.

[50]        
The requirement in the Family Relations Act of “lived with
another person in a marriage-like relationship for a period of at least two
years” is substantially the same as the definition under the Family
Compensation Act of “lived and cohabited with the deceased in a
marriage-like relationship … for a period of at least 2 years ending no
earlier than one year before the death”. They are distinct only in that the Family
Compensation Act has added the specific requirement of cohabitation. As
discussed below, since cohabitation is already one of the factors to consider
under the Family Relations Act, and since there were long periods of
cohabitation in the present case, I find that the two sections are analogous
for the purposes of this case. Accordingly I can take guidance from the courts
treatment of the definition of spouse in the former when interpreting the
latter.

[51]        
In Roach, Mr. Justice Pearlman summarizes and discusses the
relevant law at paras. 62-66 as follows:

[62] In Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264
at 267-68, 1 R.F.L. (3d) 448 (C.A.), Lambert J.A. stated the test for
determining whether a couple are living together as man and wife, and are
therefore subject to the spousal support obligations of the FRA, in the
following terms:

So I would ask whether the unmarried couple’s relationship
was like the relationship of the married couple in that the unmarried couple
have shown that they have voluntarily embraced the permanent support
obligations of s. 57. If each partner had been asked, at any time during
the relevant period of more than two years, whether, if their partner were to
be suddenly disabled for life, would they consider themselves committed to
life-long financial and moral support of that partner, and the answer of both
of them would have been “Yes”, then they are living together as husband and
wife. If the answer would have been “No”, then they may be living together, but
not as husband and wife.

Of course, in the particular circumstances of any case, the
answer to that question may prove elusive. If that is so, then other, more
objective indicators may show the way. Did the couple refer to themselves, when
talking to their friends, as husband and wife, or as spouses, or in some
equivalent way that recognized a long-term commitment? Did they share the legal
rights to their living accommodation? Did they share their property? Did they
share their finances and their bank accounts? Did they share their vacations?
In short, did they share their lives? And, perhaps most important of all, did
one of them surrender financial independence and become economically dependent
on the other, in accordance with a mutual arrangement.

[63] The plaintiff submits that the court should determine
whether the parties were in a marriage-like relationship primarily by reference
to objective factors. She refers to Takacs v. Gallo (1998), 157 D.L.R.
(4^th) 623, 48 B.C.L.R. (3d) 265 (C.A.), leave to appeal to S.C.C.
dismissed, 26657 (October 22, 1998), where Huddart J.A., in her dissenting
reasons for judgment, at para. 40, commented on the test in Gostlin:

…However, the emphasis on a mutual intention to provide
life-long financial and moral support for each other overlooked a practical
basis upon which many would agree support obligations should be premised: the
fact that over the course of cohabitation finances become intertwined and
financial dependency may emerge by the way the parties structure their
relationship so that at its termination, one party is in need of support even
in circumstances where neither party intended a lifetime commitment.

[64] Madam Justice Huddart then referred with approval to the
objective test for determining whether a couple were cohabiting as man and wife
first stated in Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont.
Dist. Ct.):

[46] A more comprehensive list of
criteria was set out in Molodowich v. Penttinen…Trial Judges in two
British Columbia cases found these criteria to be helpful in structuring their
analysis of the facts: Aktary v. Dobroslavic et al. (1983), 48 B.C.L.R.
26 (S.C.) (under the Family Relations Act) and Munro v.
Rasmussen,(Administrator of the Estate of), [1993] B.C.D. Civ. 4151-01
(under the Estate Administration Act). The Molodowich test for
cohabitation has seven parts:

1. Shelter:

(a) Did the parties live under the same roof?

(b) What were the sleeping arrangements?

(c) Did anyone else occupy or share the available
accommodation?

2. Sexual and Personal
Behaviour:

(a) Did the parties have sexual relations? If not, why not?

(b) Did they maintain an attitude of fidelity to each other?

(c) What were their feelings towards each other?

(d) Did they communicate on a personal level?

(e) Did they eat their meals together?

(f) What, if anything, did they do to assist each other with
problems or during illness?

(g) Did they buy gifts for each other on special occasions?

3. Services:

What was the conduct and habit of
the parties in relation to:

(a) preparation of meals;

(b) washing and mending clothes;

(c) shopping;

(d) household maintenance; and

(e) any other domestic services?

4. Social:

(a) Did they participate together or separately in
neighbourhood and community activities?

(b) What was the relationship and conduct of each of them
toward members of their respective families and how did such families behave
towards the parties?

5. Societal

What was the attitude and conduct
of the community toward each of them and as a couple?

6. Support (economic):

(a) What were the financial arrangements between the parties
regarding the provision of or contribution toward the necessaries of life
(food, clothing, shelter, recreation, etc.)?

(b) What were the arrangements concerning the acquisition
and ownership of property?

(c) Was there any special financial arrangement between them
which both agreed would be determinant of their overall relationship?

7. Children:

What was the attitude and conduct
of the parties concerning children?

[47] These organizing questions
permit a trial judge to view the relationship as a whole in order to determine
whether the parties lived together as spouses. Reference to them will prevent
an inappropriate emphasis on one factor to the exclusion of others and ensure
that all relevant factors are considered. The importance of viewing a
relationship as a whole was stressed by Madam Justice Prowse in Wepruk
(Guardian ad litem of) v.McMillan Estate (1993), 77 B.C.L.R. (2d) 273
(C.A.).

[65] However, the majority in Takacs stressed the
importance of the parties’ intentions, stating:

[53] The starting point in this province for the analysis
required in cases of this kind is the judgment of this court in Gostlin v.
Kergin (1986), 3 B.C.L.R. (2d) 264, and in particular, the comments of
Lambert J.A. at 267-8 which are quoted in Madam Justice Huddart’s judgment. I
read those comments as focussing first on the intentions of the parties to live
“as husband and wife”, or in a marriage-like relationship. Such an intention
may or may not include financial dependence. The various “objective indicators”
referred to in Gostlin were advanced as a means of divining those
subjective intentions where the latter “prove elusive”. By the same token, of
course, subjective or conscious intentions may be overtaken by conduct such
that whilst a person living with another might not say he or she was living in
a marriage-like relationship, the reality is that the relationship has become
such.

[55] In both Gostlin and Fitton, the question
of whether persons were living together as spouses notwithstanding that they
were not legally married involved the court in an examination of their
intentions and not simply an objective assessment of whether their financial
and living arrangements were “intertwined”.

[66] The court must be satisfied
that the parties intended to live together in a marriage-like relationship. The
objective factors identified in Gostlin and Molodowich will often
assist the court in determining the parties’ intentions, but may not be
conclusive in themselves.

[52]        
The law with regard to the effect of separations on the determination of
the continuity of a relationship is set out in Kirk v. Hackl, 2006 SKQB
526 at paras. 29-30:

[29] The law is well settled
that the word "continuously" is not [to] be interpreted as without
interruption. That is, a relationship can be interrupted by separations that do
not necessarily amount to withdrawal from the relationship or termination of
consortium for the purposes of the statutory definitions. To bring cohabitation
to an end, there must be a physical withdrawal with intent to end the
relationship. A brief cooling off period may not convincingly show a settled
state of mind that cohabitation has terminated. However, where there is
separation, the onus is on the applicant to prove that neither party intended
that the separation be permanent. In the end, the Court must assess the effects
of temporary separation by identifying the intention of the parties at the
time. See Bryant v. Bryant, 2005 SKQB 298, 266
Sask.R. 98; Taman v. Taman, supra; and McDonald v. Stone, 2004 SKQB 69, 246 Sask.R. 310.

[30]      The decision of Boothe v. Gore (1996), 20 O.T.C. 207 (Ont. Gen. Div.),
(followed by McIntyre J. in Bryant v. Bryant, supra)
is instructive. Desmarais J. stated:

[10] The law in Ontario recognizes that a man and a woman are
considered to have continuously cohabited, despite that while living together,
there might have been separations for varying periods of time before
reconciling. Cohabitation does not terminate until either party regards it as
being at an end, and, demonstrate convincingly that this is the party’s intent.
A brief cooling off period does not convincingly show a settled state of mind
that cohabitation has terminated.

[11] "Cohabit" means to live in a "marriage
like" relationship and, in order to bring it to an end, there must be a
physical withdrawal together with an intention to end the relationship. When a
temporary separation is no more than a period of reflection and reassessment,
and there is no termination of the "consortium", the cohabitation is
considered to be continuous.

[12] In an application for support by an unmarried
"spouse", the onus is on the applicant to establish the existence of
cohabitation over the requisite period of time and, if there is a break in
continuity due to separation, the burden remains on the applicant to prove that
there was no intention that the separation be permanent.

[13] The
effects of temporary separations depends on the intention of the parties. When
one party leaves the other and provides an objective basis to believe that they
do not intend to resume cohabitation and the separation lasts for a meaningful
period of time, the period of cohabitation could well have been interrupted.

Discussion

[53]        
In order to determine whether Mr. Cornet is a spouse within the
meaning of the Family Compensation Act, it must be determined when the
relationship commenced, whether it was a marriage-like relationship, whether
the separations ended the relationship, and if so, when the relationship ended. 

Commencement of
Relationship

[54]        
The witnesses Gary Cornet, Sandi James, Lauri August, and Robert Davey
all testified with regard to their recollections of the date that Mr. Cornet
and Ms. James began to live together.

[55]        
Mrs. Sandi James testified that her daughter Secret lived with
Weston Law until around the time of Larissa’s first birthday, which was August
13, 2003. She had already been dating Mr. Cornet while she was living with
Mr. Law. Very soon after she left Mr. Law, Mrs. Sandi James
recalls that Secret moved in with Mr. Cornet briefly until they got a
place together. She testified that Secret was living with Gary Cornet before
she became pregnant with Klay. As Mrs. Sandi James was not living in
Merritt during this time, her understanding of the timing comes from her
frequent telephone conversations with her daughter once or twice a week.

[56]        
Lauri August has been friends with Gary Cornet for 26 years, as he is a
friend of her brother. Ms. August testified that Ms. James and Mr. Cornet,
who had met in 2002, got together in the summer of 2003. The relationship moved
quickly and before the fall of 2003 Mr. Cornet was living with Secret and
her two children Devin and Larissa. For the first month they lived in a small
trailer in Lower Nicola and then moved across the highway to a house, and then
moved to Merritt. Ms. August testified that they moved in together before
the new school year in September, and before Ms. James became pregnant.

[57]        
Ms. August visited both at the trailer, where Secret’s belongings
had been moved in, and then later at the Merritt house. She recalls Secret’s
favourite possession, a huge china cabinet, in their joint residence.

[58]        
Mr. Cornet testified that his relationship with Secret James
started in 2002 as a physical relationship and became something more a couple
of months after that, while she was still living with Weston Law. They became a
couple in the summer of 2003. He moved in with Secret three to four months
before she became pregnant with Klay.

[59]        
Tina Cornet, Gary Cornet’s sister, was not living in Merritt in 2003.
She met Secret James in 2003 before Secret was pregnant and when Secret and
Gary had just started residing together at a townhouse in Merritt. Ms. Cornet
recalls that as being in October or November of 2003. She also recalls the
family get-together at their joint home during Thanksgiving in 2003, where she
met Secret’s parents and sister. This would therefore place Ms. Cornet’s
recollections of Secret and Gary living together prior to Thanksgiving, 2003.

[60]        
Robert Davey is an old friend of Gary Cornet who describes Gary as being
“like my brother”. His evidence was that Secret and Gary started to live
together not long after they got together as a couple.

[61]        
Other than Mr. Cornet and Ms. James, Ms. August had the
best opportunity to observe the relationship. Her evidence is that they started
to live together before Ms. James became pregnant and before the new
school year. Mrs. Sandi James and Mr. Cornet testified that Gary and
Secret became a couple in August 2003, around the time of Larissa’s first
birthday, when Ms. James left Mr. Law to be with Mr. Cornet. With
the exception of Mr. James, who places the date months earlier and was not
as involved with his daughter at that time, most of the witnesses recall that
Secret and Gary lived together shortly after they became a couple.

[62]        
In addition, the witnesses Sandy James, Tina Cornet and Lauri August
recall being at the home of Secret James and Gary Cornet with the children
Devin and Larissa for a family Thanksgiving celebration in October 2003. By
that date they had established a joint household.

[63]        
I conclude on the evidence of all of the witnesses that Secret and Gary
commenced cohabitation after Larissa’s first birthday and before Secret was
pregnant with Klay, which is understood to be September 2003. I therefore find
that Secret James and Gary Cornet commenced cohabitation on or about September
1, 2003.

[64]        
In making this finding I have considered the evidence relied upon by the
third party that Ms. James was in receipt of Social Assistance benefits in
2003 for August, September, October, and November. As will be discussed in
further detail below, I do not find her receipt of Social Assistance benefits
determinative of whether or not she was living with Mr. Cornet at the time
of receipt.

[65]        
I have also considered the evidence that the writer of the pre-sentence
report included the information that Mr. Cornet had commenced a common-law
relationship with Secret James “approximately one year ago”. The report was
written between November 17 and December 16, 2004 when Klay was five months old
as the writer states. However, the writer of the report obtained information
for the report from Gary Cornet, Richard Jackson, a substance abuse counsellor,
Secret James, and Tina Cornet. The source of the information as to the time of
commencement of the common-law relationship is not known. As this was not a
factor on which the pre-sentence report relied, I place little weight on this approximate
time reference in the pre-sentence report in the context of the evidence as a
whole.

Marriage-Like
Relationship

[66]        
In order to determine whether Ms. James and Mr. Cornet lived
in a marriage-like relationship, the Court must consider whether the parties
intended to live together in a marriage-like relationship with reference to
objective factors. In so doing I will have reference to the factors identified
in Gostlin and Molodowich.

[67]        
Ms. James and Mr. Cornet lived under the same roof. They moved
their residence a number of times but from September 1, 2003 as determined
above, their residence was joint. The presence of Ms. James’ favourite possession,
the china cabinet, in Mr. Cornet’s home as described by Ms. August is
descriptive of their joint residence. When Mr. Cornet was away working
during the summer months he returned to his home with Ms. James and the
children on his days off. They shared the same bed.

[68]        
Mr. Cornet testified that they were faithful to each other and did
not have sexual relationships with others. There was no evidence that either
was seen to have other relationships in the relevant time period. Mr. Cornet
confided in Ms. James. That they bought gifts for each other on special
occasions is demonstrated by Mr. Cornet’s evidence and his giving his
mother’s ring to Ms. James.

[69]        
Domestically they were a traditional family. When Mr. Cornet was
not away working, they shared meals. Ms. James usually did the cooking and
cleaning. Mr. Cornet did the yard work and helped with the cooking. They
shared parenting duties with Mr. Cornet taking on the role of father to
Larissa and step-father to Devin and then becoming an involved father to Klay.

[70]        
There is evidence from Mr. Cornet, Ms. August and Mr. Davey
that they participated together as a couple in Merritt activities. Mr. Cornet
referred to Ms. James as “my old lady” which means his wife. Both families
were involved in their lives as evidenced by family photos, cards sent on
special occasions and the Thanksgiving dinner in 2003. Their friends and family
saw them as a couple and as a family.

[71]        
With regard to the economic arrangements, Mr. Cornet assumed the
traditional role of breadwinner for the family while Ms. James stayed home
with two and then three children. Although they did not share a bank account, Ms. James
had unrestricted use of his debit card and his bank account. Her receipt of
Social Assistance payments was not known to Mr. Cornet and there is no
evidence of how she used those funds. He was aware that there were Court Orders
for the fathers of Larissa and Devin to pay child support but there is no
evidence of what payments were made pursuant to those orders. Ms. James
and the children were covered by his employer’s benefit plan until February
2006. Ms. James was financially dependent on Mr. Cornet who had the
intention of supporting her and the children.

[72]        
The Gostlin factors are included in the seven part test in Molodowich.
Having examined that seven part test, the answer to the question put in Gostlin,
“did they share their lives?”, is in the affirmative. Ms. James and Mr. Cornet
shared their lives in Merritt as a couple, within their immediate and broader
families and in the community.

[73]        
The evidence on which I rely above was uncontroverted at trial. The
third party referred to additional evidence that Ms. James and Mr. Cornet
had different mailing addresses and that they each declared themselves as being
single in their income tax returns for the 2003 to 2005 taxation years. While
some documents show different addresses for each, it is not clear how and when
those addresses were obtained or used. Mr. Cornet did not know if Ms. James
had kept her previous mailing address or obtained a new one after they moved in
together. Mrs. Sandi James testified that some of Mr. Cornet’s mail
went to her daughter’s mailbox. With regard to the income tax filing on a
“single” basis, Mr. Cornet thought there was a tax advantage. There is no
evidence as to Ms. James’ reason for so filing. Consideration of these circumstances
does not alter the conclusion that Mr. Cornet and Ms. James shared
their lives.

[74]        
I am satisfied on the evidence that Ms. James and Mr. Cornet intended
to and did live in a marriage-like relationship. The issue remaining for
determination is the date it ended, whether on her death in August 2006 or at a
date earlier than that.

Times of Living Apart –
Separations – End of Relationship

[75]        
There are three periods of separation:  October, 2004 to January, 2005
while there was a bail order; from approximately July to August, 2005; and from
January to August 2006.

[76]        
The bail order following the criminal charges of October 22, 2004, had a
term that Mr. Cornet not go to the family residence and that he have no
contact with Ms. James or Devin. It was in place until the sentencing on
January 4, 2005. During this time Mr. Cornet was to be living with his
sister Tina.

[77]        
The evidence of Tina Cornet and Mr. Cornet is that he did not
comply with the terms of the bail order with regard to the no contact, the no
go and the residence provisions. He had continuing contact including sexual
relations with Ms. James, he visited the family residence, and he did not
continually reside at his sister’s. Their evidence is consistent with the
Pre-Sentence Report which states that Mr. Cornet wanted to reconcile with Ms. James
and that she wanted him to return home.

[78]        
I find that there was no intent to end the relationship during the
period of the bail order.

[79]        
The next separation was from approximately July to the early fall of
2005. This is the time frame that Mrs. Sandi James referred to as a
cooling off period as a result of a “little tiff”. There is evidence of some
rocky periods in the relationship and this is one of them.

[80]        
It was during this separation that Ms. James obtained the Family
Court Order that Mr. Cornet pay support for Klay effective July 1, 2005. Counsel
for the Ministry of Human Resources acted for her at a time that she was
receiving Social Assistance. Mrs. Sandi James told her daughter to obtain
the child support order because it was better for her to have a Court Order.

[81]        
Mr. Cornet’s evidence regarding this separation is lacking in
detail but clear in his statement that the relationship was not over. They were
always still seeing each other. He did not move his possessions from the family
home. He continued to support Ms. James and the children.

[82]        
Again I find that there was no intent to end the relationship in the
months from July to the early fall of 2005.

[83]        
Ms. James and Mr. Cornet separated in January, 2006. I find
that this separation was intended to and did end the relationship between them.
The reconciliation in August, 2006 was the commencement of a new relationship.

[84]        
Ms. James and the children moved out of the family home to a new
residence in Merritt in January 2006. She took all of her possessions. Ms. James
began work at Extra Foods in an attempt to become self-sufficient. In February
2006, Mr. Cornet requested of his employer that Ms. James and Larissa
be removed from his benefit plan. Mr. Cornet described the relationship as
in a “little break-up”. The actions of both he and Ms. James indicate a
break-up.

[85]        
A few months later Ms. James moved with the children to her
sister’s home in Salmon Arm. She sought work there and prepared a résumé and
covering letter for potential employers.

[86]        
She and Mr. Cornet continued to communicate and visited when he
came to visit Klay. She went with him to look at the Mamette Lake trailer park
where he subsequently purchased property in his own name. However, the nature
of the relationship substantially changed after January, 2006. It was no longer
a marriage-like relationship.

[87]        
When Ms. James moved in with Mr. Cornet at the Mamette Lake
trailer in early August 2006, she took about 75% of her possessions. Her death occurred
later that month when she was driving with Klay and Larissa on the Coquihalla
Highway home from a visit with Mr. Cornet at his work site.

[88]        
With regard to the Social Assistance payments received by Ms. James,
they are not consistent with the time periods that she and Mr. Cornet were
cohabiting. As there was no evidence with regard to her application or
statements to the Ministry with regard to her living circumstances it is not
possible to draw conclusions with regard to the accuracy of any representations
made.

[89]        
 Ms. James received Social Assistance from August to November, 2003.
It is not known if she had received such payments prior to that date. As the
preponderance of the evidence indicates that cohabitation had commenced by
September 1, 2003, Ms. James continued to receive Social Assistance while
living with Mr. Cornet. In November and December 2004 she received Social
Assistance during part of the period covered by the bail order.

[90]        
In 2005, Ms. James received payments for Social Assistance in the
first three months of the year while she and Mr. Cornet were living
together. I note that in these months Mr. Cornet was not employed but
receiving Employment Insurance. Again in June, July and August Ms. James
received Social Assistance although they were together in June as indicated by
his placing her on a benefit plan on June 23, 2005. The reconciliation had not
taken place by September, but she did not receive Social Assistance for that
month. There is no evidence that she received Social Assistance in 2006 when
she had moved out of the family home and was living alone with the children or
with her sister.

[91]        
The Social Assistance payments are not determinative of the times when Ms. James
was living or cohabiting with Mr. Cornet. There are times that they were
together as spouses and she was receiving the payments; there are also times
that they were apart and she did not receive Social Assistance.

Conclusion – Mr. Cornet
as spouse

[92]        
Ms. James and Mr. Cornet commenced cohabitation or living
together in a marriage-like relationship on or about September 1, 2003. Their
separations in October, 2004 and July, 2005 did not end the relationship. The
relationship ended when they separated in January, 2006. At that time they both
had an intent to end the relationship. I therefore find that the test in the Family
Compensation Act is met as Mr. Cornet was a spouse within that definition
for two years, from September 2003 to January 2006, and the relationship ended
not earlier than one year prior to Ms. James’ death.

Assessment of Damages

[93]        
The law with regard to the assessment of damages in cases of this nature
is set out in Ruiz v. Mount Saint Joseph Hospital, 2001 BCCA 207, as
follows:

[53] Skelding supports the proposition that the
normal tort measure of damages is to apply to fatal accident cases as it does
to non-fatal accident cases. The basic principle is that the injured person is
to be compensated for the full amount of his actual loss and no more, as Gibbs
J.A explained at para. 18:

… Whereas, when the injured party does not survive, the
loss for which the claimants are entitled to be compensated is, as Dickson J.
said in Keizer v. Hanna the amount which will provide at least the equal
of what might have been expected to have been provided by the deceased person
but for the accident. The assessment of the appropriate amount is to be
"neither punitive nor influenced by sentimentality. It is largely an
exercise of business judgment."

[54]      In summary, in a family compensation claim, family
members may claim damages proportioned to the pecuniary loss they suffered as a
result of the loss of a relationship with a loved one. The loss of anticipated
benefit that must be compensated has been called globally "dependency"
and it must be assessed by the exercise of "business judgment."

[55]      A precise formula for exercising that business
judgment has proven elusive. Innumerable authorities have considered how to
approach the assessment of the loss of dependency. Many were cited to us. One
of the most succinct statements of the basis for awarding compensation under
fatal accident legislation is that of Cartwright J. in Proctor v. Dyck,
[1953] 1 S.C.R. 244 at 249:

To entitle a claimant to damages under the Fatal
Accidents Act it is not essential that he should have been financially
dependent upon the deceased or that the deceased should have been under any
legal liability to provide for him or that he should have enjoyed any benefits
from the deceased in his lifetime. It is sufficient if it is shown that the
claimant had a reasonable expectation of deriving pecuniary advantage from the
deceased’s remaining alive which has been disappointed by his death.

[56]      The legal goal, then,
is to ascertain the true value of the pecuniary advantage each claimant lost
because Mrs. Ruiz did not remain alive. …

Claims of Gary Cornet

[94]        
Gary Cornet claims damages under two headings: loss of financial
support, both past and future; and loss of household services, both past and
future. Damages under these headings are the subject of two reports prepared by
economists to assist the Court. Mr. Cornet also claims for a loss of
inheritance which will be dealt with separately below.

Financial Support and
Household Services

[95]        
Mr. Cornet claims that he has suffered and will continue to suffer
economic loss as a result of the death of Ms. James. Based on the report
of Mr. Daren Benning, the economist relied upon by the plaintiffs, he
claims the following amounts:

[96]        
Mr. Benning stated that in preparing his report he made the
following assumptions in assessing the loss to Mr. Cornet for financial
support and household services.

1.     In the
absence of the accident Ms. James would have otherwise earned $10,000 per
year through to September 2009, at which time she would have commenced
employment as a care-aid. Ms. James would have then earned employment
earnings commensurate with those experienced by the average B.C. female seeking
employment as a care-aid [between $27,000 and $43,000 per year];

2.     Mr. Cornet
would have otherwise realized ongoing employment income commensurate with his
average earnings over the 2004-2009 period [which was $45,763 per year in 2010
dollars]; and

3.     In the
absence of the accident Ms. James and Mr. Cornet would have otherwise
performed household services commensurate with the amount of such services
performed by the average Canadian female and male in their employment and
domestic situations.

[97]        
The only assumption which is an issue in the reports is the estimate of
the future income of Ms. James.

[98]        
The economist, Mr. Douglas Hildebrand, who provided a report on
behalf of the third party, based his estimates on a lower earnings projection
for Ms. James. He estimated her gross earnings to be $19,005 as the result
of an assumption of employment as a retail sales person, sales clerk, food and
beverage server or cashier. Child support payments for the two older children
were included as income to Ms. James.

[99]        
It is necessary to estimate the future income of Ms. James. Her
past income was:

[100]     As set out
above, Ms. James’ work history was as a retail clerk and cashier, and as a
server, bartender and chamber maid. Her résumé from early 2006 indicates an
objective of employment in the customer service industry.

[101]     It is
likely that when her children were older she would have gone back to work. At
the time of her death, she had some materials indicating an interest in
completing her GED and a volunteer package from Victim Services. Her mother
describes her as being good with people and liking to help people. Mr. Cornet
said that she was thinking of home care work but she had not set up any plans. There
is no evidence that when she died in August 2006 she had any immediate plans to
return to school or any job prospects.

[102]     I find it
unlikely given her past history of education, earnings and employment together
with her circumstances at the time of her death that she would have pursued
education and training to the level of becoming a care-aid, which Mr. Benning
described as a designation of a Licensed Practical Nurse with a salary from
$27,000 to $43,000 per year.

[103]     Based on
my findings that the likelihood of future employment and earning capacity of Ms. James
is not in accord with the assumption provided to Mr. Benning, I accept Mr. Hildebrand’s
estimate of $19,000 per year as the most reliable base from which to assess the
impact of future economic loss.

[104]     Mr. Benning
agreed that a 12% reduction should be applied to his estimates of past and
future financial support due to the inclusion of two factors: that Ms. James
had been in receipt of child support from the two fathers of her oldest
children prior to her death, and that after her death those two children no
longer reside with Mr. Cornet, thus leaving more income for himself as a
result of the reduced family expenses.

Separation Contingency

[105]     In
calculating the estimates of past and future losses of financial support and
household services, Mr. Benning applied four contingencies. The scenario
of most relevance and applicability to the circumstances is the fourth
contingency, which is an estimate subsequent to divorce and remarriage. This
contingency assumes that Mr. Cornet and Ms. James would separate and Mr. Cornet
would remarry.

[106]     Both
economists state that the remarriage and divorce contingencies, in their
estimates, are based on legal marriages and divorces only. They agreed that including
common-law relationships and separations would increase the contingencies. The
statistical contingency should therefore be increased due to the fact that Ms. James
and Mr. Cornet were in a common-law relationship.

[107]    
Neither economist was aware of the volatile nature of the relationship
of Mr. Cornet and Ms. James, the circumstances of their relationship
at the time of her death, or of Mr. Cornet’s common-law relationship with Ms. Rachel
Cammidge since May 2010. Thus in addition to the general contingency accounted
for in the table amounts and the statistical increase for common-law
relationships, the circumstances of the Cornet-James relationship and the
present relationship of Mr. Cornet present specific contingencies. The Court
must consider the specific circumstances of the parties. As Madam Justice
Bennett wrote in the recent decision of Hussack v. Chilliwack School
District No. 33, 2011 BCCA 258 at para. 92:

[92]         In
assessing past wage loss and loss of future income-earning capacity, a trial
judge must take into consideration any contingencies which affect the loss. General
contingencies may be positive, such as the possibility of promotion, or
negative, such as the possibility of lay-off. Additionally, there may be
specific contingencies that arise on the particular facts of the case.

[Emphasis added].

[108]     At the
time of Ms. James’ death in August 2006, she and Mr. Cornet had been
living together again for three weeks after the separation from January, 2006. On
the limited evidence available regarding this period I cannot come to the
conclusion that they had then commenced a new marriage-like relationship. Although
this does not impact on the finding that Mr. Cornet is a spouse, it is of
considerable significance in determining the economic losses to Mr. Cornet.

[109]     I am
satisfied that Mr. Cornet is entitled to an award of damages. The amounts
estimated for the general contingency for future losses in the “Subsequent to
Divorce and Remarriage Contingencies” in the Benning report are applicable with
increased specific contingencies for the present circumstances of Mr. Cornet.

[110]     It is
possible that Mr. Cornet may have resumed the previous marriage-like
relationship with Ms. James and he would have suffered the losses claimed.
However, the projections of the economists must be discounted to take these
facts into account. It is not possible to deal with these matters with
precision. In the circumstances I will discount past and future losses by 50%
to take into account common-law relationships generally, the volatile
common-law relationship of Mr. Cornet and Ms. James from 2003 to 2006,
and the fact that at the time of her death they had recently reconciled and it
is not known if the relationship at that time was a marriage-like relationship.

New Relationship Contingency

[111]    
It is the submission of the third party that, due to the relationship
with Ms. Cammidge, no amount should be awarded for future loss of
financial support or future loss of household services. The case of Skelding
v. Skelding, (1994), 95 B.C.L.R. (2d) 201 (C.A.), is cited in support. As Mr. Justice
Gibbs wrote at para. 20:

As to the first head, there is no
evidence that the housekeeping services provided to the children since the
remarriage on April 7, 1990 are or will be any less, by any standard of measurement,
than those provided prior to the death of the mother. Accordingly there is no
factual foundation for the future loss award. It must be set aside.

At para. 24 he added that “[w]here the court can
proceed on the footing of reality rather than speculation it should prefer the
former”. Here, in the third party’s submission, the reality is that Mr. Cornet
has effectively replaced the contributions he would have received in this area
from Ms. James with his new common-law partner.

[112]     Given his
history of separations from Ms. James and the number of relationships in
the past 5 years, it cannot be said with statistical certainty that Mr. Cornet
will remain in any marriage or common-law relationship indefinitely. In
deriving the remarriage contingency the Benning report assumed that the
probability that Mr. Cornet will remarry or enter into another common-law
relationship is equivalent to the average contingency or remarriage applicable
to B.C. males as derived from the Statistics Canada Remarriage Tables. As
Mr. Cornet exceeded the statistical probability for remarriage a higher
contingency should be applied. Statistically, he will also likely exceed the
probability for divorce so that some loss will occur in the future.

[113]     Since the
death of Ms. James in August, 2006, Mr. Cornet has had three
relationships, including the common-law relationship with Ms. Cammidge who
is separated from her husband. She stays home with the children and takes care
of the house and domestic duties of the family. They live with her seven year
old son and Klay, who is now six years old. Ms. Cammidge has no plans to
divorce her husband and she and Mr. Cornet have no plans to marry. At the present
time however Mr. Cornet has no financial loss.

[114]     The
assessment of damages for future losses of household services is reduced by a
further amount of 25% for this contingency to reflect the present reality of Mr. Cornet’s
new relationship.

[115]     The
remarriage contingency also assumes that the new partner will provide the same
level of support as the deceased. If the new partner provides more or less
support an adjustment would be required. The evidence indicates that Mr. Cornet’s
present relationship with Ms. Cammidge provides a similar level of support
in that she has assumed the role of caregiver for the children and does not
earn income or work outside the family home. No adjustment is therefore
required in this regard.

Assessment

[116]     With
regard to the assessment of past loss of financial support, Mr. Benning
estimates $6,521. Although the assumption that Ms. James would earn
$10,000 per year until September 2009 is reasonable, the amounts attributed to
her for the balance of 2009 and for 2010 are based on the assumption that she would
earn the salary of a care-aid which is not an assumption which is reasonable in
the circumstances set out above. It is agreed that the 12% reduction should be
applied. The 50% reduction is also applied. I therefore assess damages for Mr. Cornet’s
past loss of financial support at $2,800.

[117]     Past loss
of household services is estimated by Mr. Benning at $39,715. From this
amount the 50% reduction is applied. I assess damages for Mr. Cornet’s
past loss of household services at $20,000.

[118]     Future
loss of financial support must take into account the 12% reduction as agreed,
the reduction of Ms. James’ future income from that which was assumed as a
care-aid, and must also take into account the 50% reduction. The amount claimed
was $36,378. Ms. James future earnings are estimated at two thirds of the
amounts based on the assumption in the plaintiff’s report. From that, 12% and
50% is to be deducted. $11,000 is assessed under this heading.

[119]     Future
loss of household services is estimated at $101,539. From this there will be
reductions of 50% and 25% as set out above. I assess damages under this heading
at $38,000.

Loss of Inheritance

[120]     Ms. James
had accumulated very little in assets during her life. With her future
employment prospects and the needs of a family it is unlikely that there would
be a significant inheritance to be left in the future. The contingency for the
nature of their relationship is also to be applied here. I assess a nominal
amount of $3,500 to Mr. Cornet for loss of inheritance.

Loss of Love, Guidance, and Affection – Mrs. Sandi
James

[121]     In order
to award damages under this heading there must be guidance which was provided
and is now lost.

[122]     Mrs. Sandi
James testified that she relied on her eldest daughter Secret for guidance in
their frequent telephone calls and in their visits. Although it is clear that
Secret relied more on her mother, I accept the evidence of Mrs. Sandi James
that she received guidance from Secret James on an ongoing basis. I assess
damages for Mrs. Sandi James in the amount of $7,500.

Parents’ Claim for
Economic Loss

[123]     The
parents of Ms. James claim losses of $20,000 each for their economic loss
as a result of their daughter’s death.

[124]     Mr. and
Mrs. James both testified they expected that Secret as their eldest
daughter would be the one who would take care of them if needed as they aged. Their
expectation in this regard is a reasonable one based on their conversations
with Secret, although the reality of reliance on a daughter who was also a
mother of three children living in a different area of the province may have
limited her ability to assist her parents.

[125]     Mr. James
worked during the summer at Island Valley Copper in Logan Lake. When he was
there, he lived with Ms. James and would eat meals with her and the family.
This was a financial benefit to him which was lost on her death.

[126]     I conclude
that a nominal award to each of the parents is justified. I assess the loss to Mrs. Sandi
James at $5,000 and to Mr. James at $7,500.

Special Damages

[127]     There will
also be an award for expenses incurred in the immediate aftermath of the
accident and the costs associated with the funeral services and burial. The
costs for Mr. and Mrs. James to attend the various court proceedings
involving the Defendant Mr. Baylen Gillis are not appropriate damages in
this action.

[128]     There is
therefore an award of $2,075.59 for special damages.

Conclusion

[129]     In summary,
I award the following amounts of damages:

[130]     The awards
for past loss of financial support and past loss of household services are
prior to an allowance for court ordered interest.

[131]     The Family
Compensation Act provides in s. 3 that the total award must be assessed and
then, once any costs not recovered from the Defendant have been subtracted,
distributed among the parties as the court directs. As this was not addressed
by counsel, if further orders are required the matter can be brought back
before me.

[132]    
Unless there are matters of which I am not aware, the Plaintiffs are
entitled to costs on Scale B.

“Watchuk J.”