Judges Declare Free Childcare

Each year, numerous Canadians make a decision to limit the size of their families through a voluntary sterilization procedure. Despite this active choice to avoid more children, when the procedure is negligently performed—and leads to another healthy baby—patients are denied the compensation that would be paid to almost anyone else. This is because courts ignore the motives for the procedure and decide that an additional, unplanned child costs nothing, legally speaking.

This valuation would, of course, be disputed by virtually all parents. While the data is unavailable in Canada, we know that an American child born in 2015 will cost their parents an average of  $233,610 (USD) before they reach their 18th birthday. How then, can a judge argue that these costs don’t exist?

The answer requires a quick overview of how legal damages work. Our law of civil compensation is based on the idea that a plaintiff should be remunerated in accordance with the harm they suffered, at least to the extent that money can do so. In other words, courts seek to return the victim of negligence to the position they would have been in had the impugned act or omission never happened. As such, when someone requires unpaid time away from work to recover, courts will order an award for lost wages in the amount that was lost—no more and no less. Similarly, expenses incurred for the costs of treatment (like physiotherapy, a wheelchair or prosthetic limb), and various other losses, will be compensable in a tort claim.

It stands to reason, under that approach, that the costs of raising a child born after a negligently performed sterilization procedure are also covered. It is a quantifiable loss, and an easy one at that. Putting the plaintiff back in their pre-negligence position simply requires the defendant physician’s insurer (the Canadian Medical Protective Association) to pay the costs inflicted by the physician’s error. Unfortunately, our courts have held that a plaintiff must pay for the loving relationship they have with their child. The judiciary has made it clear that they see this situation as one of financial “redistribution”—so no harm has been suffered.

Based on the case law, these parents do invariably love their unexpected children. This does not make it any less expensive to buy diapers, food, or childcare. More significantly, the law suffers from a fairly obvious flaw—it assumes that people have the money to raise a child they took serious steps to avoid having. Courts tell patients that they must account for the joy they experience from their children, but they forget that this joy was imposed on them, despite their responsible efforts toward family planning. Indeed, for many couples, financial struggles are a major factor in their decision to undergo just such a sterilization procedure.

Ultimately, parents in these cases gain profound intangible benefits from unplanned children, but are forced to internalize a massive financial burden due to medical negligence. When someone is injured in a non-maternal tort, nobody asks how their life has improved; the question is simply about addressing their financial hardships. If one becomes injured and can no longer work, the damage award will cover the cost of lost wages—there is no deduction based on the joy derived from staying home all day and enjoying leisure time. Courts continue to make a unique exception for people, predominantly women, who are victims of negligence in a sterilization procedure by changing the rules of recovery. This situation, which forces joy that was actively avoided and likely can’t be afforded, is still the law today.

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