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Five Facts about ICBC Claims on Children & Infants

We spend our days tending to their sniffles and coughs, comforting them through playground squabbles and their first break-up. There’s little we wouldn’t do to protect them. And that means there is no worse feeling in the world than when a child under your care comes to harm.

When a child or teen under your care suffers a serious injury during an accident, you want to do everything you can to help them get the settlement they need and to put it all behind them. Read on to learn five facts about ICBC claims for children and teens so that you can make an informed decision about your best possible next step.

1) A Litigation Guardian must represent your child until they are 19 years of age.

A person under the age of 19 is at law considered an infant, even if they are 18 and can vote.  A parent , grandparent or guardian must represent the best interests of the child as a Litigation Guardian, and it is this Litigation Guardian that hires a lawyer to represent the child.  Once the child turns 19, they are an adult and can take over their own claim and instruct a lawyer.  A Litigation Guardian cannot start a court case for a child without using a lawyer.

2) The Office of the Public Guardian and Trustee must be involved.

If your child is under the age of 19 and they have an ICBC claim, the Office of the Public Guardian and Trustee must approve the settlement.  Once the child or teen in your care turns 19, they will receive the settlement funds in full. You can find out more about Public Guardians and Trustee by clicking here.

3) The Manner in which your child’s Claim is settled depends on the amount of damages.

If your child is entitled to non-pecuniary damages — that is, damages that are challenging to quantify, like pain and suffering – or other damages such as cost of future care, or loss of earning capacity, how much is recovered has a significant effect on the process.

Less than $50K

If a settlement is reached between ICBC and the Litigation Guardian, that is not the end of the claim.  Even if the total of the non-pecuniary damages, future cost of care, loss of earning capacity damages, etc.  that is proposed in the agreed settlement is less than $50,000, submissions still must be made to the Public Guardian and Trustee as to why the settlement should be approved.  The Public Guardian and Trustee will either approve or reject the settlement, as they act as an extra line of protection for the child or any person under a disability, but retaining the services of a skilled Vancouver lawyer is the first line of protection.  That lawyer will make sure that the litigation guardian is properly informed of the options and risks, and that the child is not being taken advantage of by an insurance company and forced into an improvident settlement that doesn’t take into account the child’s best interests and their future.

If the settlement is granted, the Litigation Guardian would sign a release that would bind the child, even if they change their mind as an adult, and that release must be sealed by the Public Guardian and Trustee.

More than $50K

After the Public Guardian and Trustee has approved the settlement for over $50,000, the Supreme Court Civil Rules dictate that a Judge of the Supreme Court of British Columbia must also approve the settlement.  Depending on whether a court case has been started, that application for approval can happen either by Notice of Application or by Requisition.  The Court, after hearing submissions by the lawyer for the child, as well as considering the recommendations of the Public Guardian and Trustee, will determine whether the settlement is appropriate.

The Public Guardian and Trustee make comments. With few exceptions, the court will follow the Public Guardian and Trustee’s judgment and approve the settlement. If the court does not approve the settlement, it would likely be that further evidence about the child’s recovery and future are needed, or that negotiations should be revisited with ICBC.  If ICBC is not willing to heed the advice of the judge and provide adequate damages, trial may be necessary.  It is important to get skilled legal advice from the beginning so that all aspects of the child’s injury claim are explored thoroughly.

4) Sometimes, it’s best to wait.

If your child is seventeen or older, sometimes it makes good sense to simply wait until their nineteenth birthday before approaching settlement. This might remove the need for the Office of the Public Guardian and Trustee’s involvement, it may reduce expensive court fees and eliminate problematic issues around consent to an agreement where a child is involved.   It also means that you leave your child to make their own decisions about their life and their future when they are an adult.  The financial risks of litigation are also avoided by the Litigation Guardian, who can be responsible for court costs.

It is possible, however, that the ICBC may file a Notice to Proceed.  In that case, this forces the Litigation Guardian to commence a court case.  Once a Notice to Proceed is served, the time limit to commence the court case starts to run.  Steps to protect the child’s interest must be taken immediately and a lawyer.

5) Hiring the right lawyer can make all the difference.

Legal proceedings can be stressful, and the tangle of legalese can be baffling.  Having the right partner at your side can make all the difference.

If you’re ready to forge ahead in finding a lawyer in the Vancouver metro region, reach out to Becker Lavin & Wessler today. You can call them right now at 604-689-3883 or learn more on their website by visiting https://blwlawyers.com.

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