Warren Berg: 0:00

Good morning and welcome to the February edition of Ask the Lawyer Across Alberta on the Windspeaker Radio Network, CFWE and CJWE. I'm your host, Warren Berg, and joining us again this month are Cynthia Carels and Caitlin Gerstel of Weir Bowen LLP in Edmonton.

Cynthia Carels: 0:14

Thanks for having us back, Warren.

Caitlin Gerstel: 0:16

Yes, thanks very much, Warren. It's good to be here.

Warren Berg: 0:17

Weir Bowen LLP is an Edmonton-based law firm. However, their lawyers have represented clients across Alberta, BC, Saskatchewan, and the Northwest Territories, and have been counsel in precedent-setting cases all the way up to the Supreme Court of Canada. And over the course of the last four years or so, we've covered a lot of ground on well, all kinds of work that you do at Weir Bowen, everything from motor vehicle accidents to medical malpractice claims. So what are we going to be focusing on today?

Cynthia Carels: 0:43

Yeah, you're right, Warren. We we have covered a lot of topics since our first show with Weir Bowen back in January of 2022. But we thought we would use this month's episode to do a deeper dive into the many challenging issues that we face involving injury claims on behalf of children. Especially, you know, as we start thinking about things to keep the kiddos busy during the upcoming spring break season. Uh and for the really forward-thinking, uh even though it's pretty frosty outside today, uh, this is the time of year people start planning for their summer holidays as well.

Caitlin Gerstel: 1:16

Yeah, I don't know about you, but around our house, planning activities for kids when school is out is practically a full-time job.

Cynthia Carels: 1:22

For sure.

Caitlin Gerstel: 1:23

And for really big ticket events that kids dream about all year, it's becoming a competitive sport in and of itself. Parents have to be on the ball for when registration's open for kids' activities. And it seems like the barrage of registration and consent forms is getting more and more challenging every year. So this is an excellent jumping off point to kickstart our discussion about the intersection of injury law and claims for kids.

Warren Berg: 1:45

And I believe it's both permission forms and cheque writing season, no?

Cynthia Carels: 1:49

Yeah, yep, it is. Uh I know this season very well between day camps in the city where, you know, my kids would be doing everything from sports to drama camps, uh, to those overnight camps where they are learning how to, you know, build fires and navigate independently in the forest. It seems like this time of year is filled with unending signatures on forms and checks, uh, combined with that sort of unsettling panic about the dangerous things that we're actually letting our kids do uh under someone else's supervision.

Warren Berg: 2:18

So, as personal injury lawyers who were also both mothers, don't the two of you just want to wrap your kids up in bubble wrap? Because you've obviously seen what happens when things go wrong.

Caitlin Gerstel: 2:28

Definitely. And in my house, both my husband and I are lawyers. So our kids are, you could say, doubly blessed with parents who've seen a pretty broad spectrum of bad things that can happen when people aren't careful. But we also know how important it is for our kids to be exposed to all the excitement that comes with learning new things and experiencing adventure in childhood. So although we want our kids to be safe in whatever we do or they do, we also know that every activity comes with some degree of risk that we as parents are not going to be able to control. But yes, I mean the protective mama bear instinct is definitely there and we have to do what we can to keep them safe.

Cynthia Carels: 3:04

Well, I'm pleased to report that both of my kids have made it to young adulthood now. So I no longer have to or get to sign the permission forms. Uh, but you know, that also comes with its own set of parental worries as we relinquish the reins of risk assessment to young adult children, knowing they are still quite blinded by their own sense of invincibility, uh, and you know, don't have that fully developed judgment center in their prefrontal cortexes yet.

Warren Berg: 3:29

Okay, so the the plan for today then is to discuss some of the quirks of pediatric cases or cases involving children. So what can our listeners expect from today's show?

Cynthia Carels: 3:38

So we're planning to cover four main areas. Uh first one, our favorite topic, which you know very well, Warren, we never fail to talk about these during shows, uh, and that is limitation periods. Uh and it's got some interesting quirks when it comes to kids. Uh, we're also, number two, going to spend some time talking about those pesky forms that parents always have to sign in order for kids to participate in activities and the various iterations that we see. So, you know, everything from permission forms to waiver forms, and even this thing that's coming out a lot more now, uh parental indemnity agreements. So we'll spend some time deeping uh diving deeply into that. Uh, thirdly, we're gonna talk about our strategies for the crystal ball gazing that's required uh when we're trying to figure out the impact of a child's injuries on their future. And then finally, we're gonna talk about the hoops that we have to jump through in order to ensure that a child's injury claim is actually settled properly to protect the proceeds of their settlement for their future benefit.

Warren Berg: 4:37

Okay, let's start with uh the limitation periods in my now six months with the lawyer.

Cynthia Carels: 4:43

No, I think it's been longer than that. Let's say doing the math. Yeah, four years.

Warren Berg: 4:47

I'm not very good at the math part or the lawyer part. That's why we have both of you here. Uh I feel like I'm beginning to understand why limitation periods are so important, because if our listeners wait too long to bring a claim, they could face some serious problems, right?

Caitlin Gerstel: 5:00

Yeah, exactly. Timelines run our lives as lawyers, and most deadlines that we have are soft deadlines, but there are some deadlines that we absolutely cannot miss, and one of them is the deadline to file a statement of claim at the courthouse. Uh now, but before we get too far into this, it's important for us to underscore that when we talk what we talk about on Ask the Lawyer is intended to be educational materials for general information only, should not be taken as legal advice. The facts of every case are different, and dependent on the circumstances, so it's important that if you're wondering about your particular case to contact us to get advice specific to your situation.

Cynthia Carels: 5:37

Yeah, and that's especially true when it comes for what we say on here, because uh when it comes to cases involving minor children or injuries that occur in childhood, uh, there's a lot of nuance there that we need to get into.

Warren Berg: 5:47

So this is probably a very good time to talk about how our listeners can get in touch with you if they need to talk to a lawyer about a personal injury claim, whether it be a motor vehicle accident or medical malpractice or some other type of injury, whether it occurred in childhood or not, what is the best way to get in contact with you?

Cynthia Carels: 6:03

So the easiest way is to check out our website at weir bowen.com. So that's W E-I-R-B-O-W-E-N.com. And on our contact us page, there's a form that you can actually fill in, and our reception staff will make sure that your inquiry gets to the right people.

Warren Berg: 6:20

And what if the internet isn't an option?

Caitlin Gerstel: 6:23

We actually also frequently take what we call cold calls. You can just call our main reception line at 780-424-2030, and our receptionists can get you in touch with one of our team members.

Warren Berg: 6:35

This is Ask the Lawyer on Windspeaker Radio, C FWE and CJWE. I'm your host, Warren Berg, and joining us today are Cynthia Carels and Caitlin Gerstel of Weir Bowen, L L P in Edmonton. Once again, that's W E I R B O W E N 780-424-2030 is their phone line phone number. You can also see them online at WeirBowen.com. So today we're talking about claims involving children, starting with the rules about limitation dates.

Cynthia Carels: 7:03

So in Alberta, the Limitations Act actually sets out the deadlines by which a party has to file a statement of claim at the courthouse. And that's what we do to formally commence a lawsuit. And generally speaking, the rule is that a party has two years from they knew or from when they knew or when they ought to have known that a person caused them an injury to get that claim filed at the courthouse. But like any good rule, there are always exceptions, and children are definitely one of the big exceptions because their two-year limitation period doesn't technically start to run until they turn 18. So, you know, even if a 16-year-old knew that they got rear-ended in a car accident that caused them injury, that child's deadline to sue isn't actually until their 20th birthday, because the clock doesn't start ticking for them until they turn 18.

Warren Berg: 7:52

So does this also mean that kids who sustain injuries cannot bring claims until they are adults?

Caitlin Gerstel: 7:59

Well, yes and no. In Alberta, until a child turns 18, they can't actually file a lawsuit or be in charge of the litigation themselves, but they can have a litigation representative bring the claim for them. So, for example, if we have a 10-year-old child who is injured in a motor vehicle accident, we don't need to, and nor do we recommend waiting until they turn 18 before starting a claim. Their litigation representative can get the claim going for them before they turn 18, and that person assumes the responsibility for the action until the child becomes an adult. Generally speaking, this person is typically a parent or legal guardian, and that person would technically be our client.

Warren Berg: 8:36

Is a parent automatically a litigation representative or do they have to go through any special steps?

Cynthia Carels: 8:42

So, although we generally like to have parents take on this role, it's not always possible for a child's parents to do it. And it's not an automatic appointment or right for the parent to be involved in this capacity. So, in order to become a litigation representative, we actually need that individual to swear an affidavit. And that affidavit is an affidavit to self-appoint as a child's litigation representative. And as we walk through the essential elements of this affidavit, you're going to see that not all parents are even eligible to act as their child's litigation representative.

Caitlin Gerstel: 9:16

That's right. The essential elements of this affidavit are actually set out in Alberta's rules of court, and they require that the litigation representatives swear or affirm a number of things, including, first, they must be a resident of the province of Alberta in order to be a litigation representative for a child in an Alberta-based lawsuit. They must also declare what their relationship is with the party they intend to represent. They must acknowledge that potential liability for payment of any cost award arriving from the lawsuit, and most importantly, they must confirm that they are not adverse in interest to the party they will be representing.

Warren Berg: 9:49

So there's a lot to unpack there. The first two make a lot of sense, and uh, you know, that it's important for the litigation representative to live in Alberta if they're going to be responsible for now a lawsuit in Alberta, and of course, that they declare what their relationship with a child is. But what about the other two?

Cynthia Carels: 10:05

So, well, let's start with uh the last one, and that's where the litigation representative needs to swear that they are not adverse in interest to the party they'll be representing. And this is tremendously important because we do not want a child's interest in a lawsuit to be represented by someone who has a conflict of interest or who could stand to benefit in some way by having control over a child's lawsuit. So to give this some concreteness, let's use the example of a family summer road trip to visit the grandparents. Uh, you know, we'll be heading into road trip season in the coming months. And let's say we have a mother of four minor children, uh, the mom's behind the wheel of the family's minivan, and she is exhausted, um, as mothers on road trips are known to become. Um, and let's just, you know, for for the purposes of this example, say she accidentally falls asleep behind the wheel, uh, rolls the vehicle into the ditch, and causes serious injuries to all four of her children.

Caitlin Gerstel: 11:03

So in a situation like that, it's pretty clear that the children's claims will be against their mother, which means the mother cannot be a litigation litigation representative for any of the children.

Warren Berg: 11:12

So in a case like that, then would the father automatically be the next best choice?

Caitlin Gerstel: 11:17

No, not necessarily. Just like any motor vehicle accident claim that we take on, we'll want to run a search with the Alberta registries to find out who the registered owner of the family vehicle was. If the father is listed as the owner or a co-registered owner, then we are also going to need to be bringing the children's claims against the father, which means he can't be the litigation representative either.

Warren Berg: 11:37

So in that case, does that mean that grandma or grandpa might be the next best choice?

Cynthia Carels: 11:41

Again, this is a question where the answer is not necessarily, uh, or it depends. So in this example, you're going to recall that we said there were four children who were involved in the accident who sustained serious injuries. And with that many seriously injured children involved, it's actually possible the total value of all the claims might exceed the available insurance limits. And if that's the case, uh it's possible that the children may also have competing claims against each other, too. Uh so when we identify a situation like this, not only are we going to represent or recommend that the children each have different litigation representatives, but we're also going to recommend they get different law firms involved so that no one can have even the appearance of a potential conflict of interest.

Warren Berg: 12:28

So this sounds really complicated on many levels. So if a family contacts your office in a situation like this and you tell them that you can only help one of the kids, then what?

Cynthia Carels: 12:39

Well, we certainly are not going to leave the other three kids to fend for themselves. And the good thing about getting our office involved early is that we can help families connect with other trusted lawyers in our networks, uh, people who we actually know will do a good job. And unfortunately, these situations happen more frequently than any of us would like. But on the flip side, Weir Bowen also actually receives a lot of referrals like this from other law firms because of our reputation within the legal community. So we're definitely well positioned to help out with opening doors if need be. Uh, it's not necessary for families to try to independently find multiple lawyers on their own, especially if they already know and trust our team at Weir Bowen.

Warren Berg: 13:19

This is Asked the Lawyer on CFWE and CJWE, and we're here today with Caitlin Gerstel and Cynthia Carels of Weir Bowen L L P. As Cynthia just mentioned, if you or your loved ones need to reach them regarding a personal entry claim, you can give them a call at 780-424-2030 or online at Weirbowen.com. That's W-E-I-R-B-O-W-E-N.com. So, Cynthia, you mentioned that children with claims do not have to wait until they turn 18 to start a lawsuit, as long as they have a litigation representative to do it for them. But you also mentioned that the litigation representative has to acknowledge a potential liability for any cost that might be associated with a lawsuit. That sounds like it could be scary or expensive. So what does that entail?

Cynthia Carels: 14:06

Yeah, that's a fair question, and it's a conversation I have with every client who retains our firm who wants to commence a lawsuit through the courts, because we can never guarantee that litigation is going to be risk-free. So as lawyers, we're always assessing the merits of the case. And if we agree to take it on, it's because we think the claim is pretty solid based on the information that we have at the time. But our assessment of the merits of a case can change from time to time as we get more information in. And if we're concerned a client might actually lose their case or that they aren't likely to beat an offer by going to trial, then we're going to have a serious talk about the client's potential liability for what we call adverse costs. So, in a nutshell, the courts have developed a system that holds a losing party responsible for the winning party's court costs. Now, that doesn't mean the losing party has to pay the entirety of the winning party's legal fees. It just means they're going to be assessed a tariff in accordance with a schedule that's in the back of our rules of court for every litigation step that a party had to take in order to obtain a judgment in their favor.

Caitlin Gerstel: 15:14

Yeah, and our system isn't perfect, and people who are involved in litigation will rarely have the full amount of their legal fees covered by these court costs, but they do help to partially offset legal fees for the winning party. On the flip side, though, they also act as a deterrent for parties that might face a negative outcome at trial because there's an added consequence to losing, regardless of which side of the litigation a party is on. So it is important for the litigation representatives to understand that they will be liable to pay those costs in the event a child's claim is unsuccessful for some reason. If the potential litigation representative is not prepared to swear an affidavit confirming that they are prepared to take on that responsibility, then we have to look for somebody else who can serve in that capacity.

Warren Berg: 15:56

So what if the child has no one who is prepared to take on this responsibility for them?

Cynthia Carels: 16:01

So uh a couple of options. As we mentioned earlier, the child could wait until they turn 18 to do it themselves. Or the alternative is that we can make an application to the court to get a litigation representative appointed for the child if we need to.

Warren Berg: 16:16

But if nobody's willing to take on this responsibility for a child, would families even bother calling a lawyer in the first place?

Caitlin Gerstel: 16:24

Yeah, I guess that is one of those situations where we don't know what we don't know. There may be a number of claimants whose families don't reach out on their behalf or don't even know that they can. And by the time the potential plaintiff turns 18, they might not even really know or understand what happened or what their rights are. An excellent but extremely sad example of this situation is childhood sexual assault. This is now finally coming to the collective public consciousness as many survivor survivors of horrendous abuse either did not tell anyone about it or had no one in their corner to advocate for them at the time. And by the time the survivor was ready to take action themselves, the limitation clock had frequently expired, leaving them with no avenue for compensation.

Cynthia Carels: 17:05

So thankfully, that has recently changed. And it's another one of those exceptions to that two-year limitation rule. In 2017, the provincial government in Alberta added section 3.1 into Alberta's Limitations Act. So it now explicitly states that there is no limitation for a claim that relates to sexual assault or battery. So that section also states that there is no limitation if the claim relates to any kind of sexual misconduct or assault, if the claimant meets one of four criteria. So the first criteria is that the claimant was a minor at the time of the misconduct or assault. The second is that the claimant was in an intimate relationship with the person who committed the misconduct or assault. The third criteria is that the claimant was dependent on the person who committed the misconduct or assault. And that dependence could be financial, emotional, physical, or otherwise. Or the final uh exception to that criteria is that the claimant was a person under a disability.

Warren Berg: 18:06

So does this mean that only children whose limitation would have expired after 2017 can take advantage of this new law?

Caitlin Gerstel: 18:13

No, actually, in 2020 there was a case that found this new section to be retroactive. So if a child was subjected to sexual misconduct in 1976, for example, they likely would have been out of time if they tried to sue in his adult. But now we have clarification that the new 2017 legislation opens the doors to many of those historical claims.

Warren Berg: 18:31

How does somebody know whether they should be calling a lawyer if they might be in a situation where a limitation period may have expired, but they're not totally sure? I'm thinking that, you know, some of our listeners might have even called lawyers prior to 2017. At that time they were told by a lawyer that they were out of time.

Cynthia Carels: 18:47

Yeah. Uh so my advice, especially to anybody hearing all of this for the first time today, uh, is err on the side of calling. We get dozens of calls every week, and we have a team of lawyers that can ask you the questions that we need to have answered in order to determine whether it makes sense to bring a claim and whether the facts of your situation do fall within this new legislation. Uh, every case is so different and often turns on the facts. So it is best if you speak to a lawyer who knows what they're doing in the area so that they can give you advice based on your particular set of circumstances.

Warren Berg: 19:22

And as we've previously mentioned, it's but worth mentioning again. If you have any questions or concerns regarding a personal injury case, whether your claim involves children, which is today's topic, or if you're an adult, you can reach out to the lawyers at Weird Bowen L L P. Their phone number is 780-424-2030. Once again, that's 780-424-2030, or online at Weirbowen.com, W-E-I-R-B-O-W-E-N.com. This is Ask the Lawyer Across Alberta on CFWE and C J W E. I'm your host, Warren Berg, and today we're discussing the percu the peculiar peculiar issues surrounding childhood injury cases with Caitlin Gerstel and Cynthia Carrolls.

Cynthia Carels: 20:06

Uh yeah, so instead of peculiar, let's say quirky. There we go. Thank you. It's easier to get out the mouth. So now that we have covered many quirky issues relating to limitation periods, uh, we thought I'd turn our minds to the very timely topic of parental permission forms, especially as parents are starting to plan for spring break activities, uh summer camp season, day camps, and other high-risk activities that our kids want to do when they're out of school. And uh I know in past shows we've used the example of um a high-risk activity that is frequently popular at camps, which is trampolining. Uh, whether they're at an overnight camp or a skills-based camp, uh, and obviously they'll be popping up in backyards everywhere in just a few short months. Uh, but since it is such a broadly popular activity, it's a good one to use as we discuss parental permission forms because trampolining is a really good concrete example of a widely known risky activity you might be asked to sign a permission form about. That's right.

Caitlin Gerstel: 21:04

And the Canadian Pediatric Society has been extremely vocal about their opposition to the recreational use of trampolines, but they do remain abundantly accessible to children and as a consequence cause plenty of injuries. Alberta Health Services published some pretty interesting data back in 2015 where nearly 2,000 children, 1,919 to be exact, between the ages of zero and 14 years sustained trampoline-related injuries severe enough to require care in an Alberta emergency department. Of those children, 20% had dislocated ankles or feet, 18% had leg fractures, 21% had fractures to their shoulders, elbows, or arms, and 140 of these kids ended up with head injuries. And 98 of these kids were so severely injured that they required a hospital admission, including surgery.

Cynthia Carels: 21:51

So what is a parent to think if they get a call from their kids' uh spring break skills camp letting them know their child is in the hospital? After taking a nasty bounce on a trampoline, especially if they specifically recall signing a permission slip or a waiver form for. You know, many parents are instantly going to think they are out of luck, that there's nothing anybody can do since they signed a waiver form, and they're thinking that waiver form appears to have waived away their child's right to sue anybody for this injury.

Caitlin Gerstel: 22:24

Yeah, you know, parents or guardians may just intuitively think their child's claim cannot be prosecuted. And they may even carry a huge amount of guilt for consenting to let their child do their risky activity in the first place. But we really want to caution parents about thinking this way, because the simple act of having a parent or legal guardian sign a waiver form may just be a pretty clever defensive move that serves to deter parents from reaching out to legal counsel, even if their child was seriously injured because of camp's negligence. So there are some really important things to know about these forms. It's one thing to sign a form confirming that your child has your permission to attend a camp or jump on a trampoline or ride horses or shoot arrows at an archery range, but it is a very, very different thing when it comes to a parent's ability to sign away a child's right to sue.

Cynthia Carels: 23:12

That is especially true in situations that we as lawyers describe as pretort, or in layperson's terms, signing away rights before somebody's act or omission actually caused an injury that, you know, hasn't even happened yet.

Warren Berg: 23:28

So are you telling me a camp or trampoline park technically can't ask a parent to sign a waiver form for their kids?

Cynthia Carels: 23:34

Oh, these places can, and often do, come up with all sorts of different kinds of forms they ask people to sign before their kids can participate in risky activities. And we've seen them range from, you know, pretty basic permission forms all the way up to very sophisticated documents filled with scary legalese. But as lawyers, it's our job to figure out whether or not that form is actually enforceable under the circumstances that are specific to each case. And there have definitely been some creative arguments over the years attempting to enforce waivers signed by parents to defend against their injured child's claim. And the spectrum of understanding is as broad as the people signing and writing them. Some people assume that a waiver form isn't worth the paper it's written on, and other people assume that a waiver form is an absolute bar to a claim. But if a child has sustained a serious injury, we're going to recommend parents to give us a call regardless of what they signed so that we can take a really good look at the paperwork and give you our opinion regarding its enforceability.

Caitlin Gerstel: 24:40

These forms can be really intimidating, and they may even leave you with the impression that if a kid gets hurt for any reason, including the facility's negligence, then the signing parent is agreeing to be responsible for all the damages. These kinds of clauses are often referred to as parental indemnity agreements. However, in Alberta, we have some legislative protections in place, including section four sub five of the Minor Prop Minors Property Act. That effectively renders parental indemnity agreements null and void.

Warren Berg: 25:09

Are parents supposed to know this when they're signing documents on behalf of their kids?

Cynthia Carels: 25:12

Yeah, honestly, in a lot of cases, even the people who are drafting these forms don't really know whether they're enforceable or not. But they are they're just so ubiquitous that they take all sorts of angles in an effort to protect themselves and their businesses and organizations from liability. And, you know, to be honest, I didn't know about any of this stuff until I became a lawyer myself. Uh and I didn't start into law school until my kids were already well into their various activities. So I was one of those parents that probably would have carried around a bunch of grief and guilt over signing a waiver if my kid got hurt. But right around the time that I was starting into year two at law school, the Supreme Court of British Columbia issued a really interesting decision called Wong and Locke's Martial Arts Center. So the background to this case is that a 12-year-old boy was seriously injured when he was violently thrown to the ground in the course of a sparring match that was being held and supervised by Locke's Martial Arts Center and its staff. And in that case, a boy's mother had signed a waiver form as part of her son's registration package for training in a special form of Korean martial arts. And the waiver included wording. I'm going to specifically read this because it's it's helpful. So it was expressly agreed that all exercises and treatments and use of all facilities shall be undertaken by the student's sole risk. Locks and its affiliated studios shall not be liable for any injuries, past or future medical complications, any claims, demand, injury, damages, actions, or cause of actions whatsoever, including without limitation, those results or those resulting from acts of active or passive negligence on the part of Locks. And then in big capital letters, it said, You are responsible for all injuries. And in the course of this lawsuit, the court heard that the mother didn't really take a lot of care to read the waiver, but she did understand that martial arts was going to involve some falling to the ground. The court also heard from the child himself, and he was pretty adamant that he was unaware of the clauses in the waiver, and he certainly did not authorize his mother to sign away his rights to sue. So the judge in this case reviewed a number of legislative policy documents regarding parents' rights and wanted to be careful about making a rule that was going to negatively infringe upon those rights. But in the end, the justice concluded that allowing parents to waive a child's right before anything had happened to them was simply not aligned with public policy or legislation in British Columbia pertaining to contractual obligations that could bind children. So the martial arts studio's arguments failed, and the child's claim was permitted to proceed. Now, this case is only technically binding authority in British Columbia, but it does have some overlap with issues that we see arising in the context of Alberta's Miners' Property Act, you know, which Caitlin mentioned earlier when she was talking about these parental indemnity agreements being rendered void.

Caitlin Gerstel: 28:14

There was also a case out of Ontario in the 1960s called Stevenson's and Howitt, which involved two kids who were injured in a motor vehicle accident. One of the plaintiff's parents did not think their daughter's injuries were all that bad, and they signed a release on her behalf to get her a quick settlement. That release included a clause that the defendant's insurance company argued would mean that the parents had to indemnify or reimburse the insurer and or the defendant in the event of a lawsuit, including any amounts awarded by a court plus the defense's legal costs to defend the claim. The defendants desperately wanted to enforce the release that the parent had signed on their daughter's behalf, but failing that, they wanted to be able to seek recovery from the parent for any award the girl received at trial plus their court costs. And the court just did not buy this argument at all. It held that documents of this type are, quote, so contrary to the policy set up in our courts for the protection of infants that the document should be held to be unenforceable.

Warren Berg: 29:11

So it it sounds like the courts want to protect children from bad deals, even when those bad deals are made by their parents on their behalf.

Cynthia Carels: 29:18

Yep. And that actually brings us to the next topic we wanted to discuss about injury claims involving children. And that is all the hoops that we as lawyers need to jump through in order to convince a court that the settlements we're recommending are actually fair. So to recap a bit, when we open a claim for a child, we want to do our due diligence to make sure we have a proper litigation representative to take responsibility for the claim on the child's behalf. That includes ensuring the litigation representative is not in a conflict of interest regarding the child's claim, and that the representative will bear the responsibility for any cost that might become payable as a consequence of the litigation. But even when we have a litigation representative on file in that driver's seat, that person does not frequently have the final say with respect to settling a child's claim, especially if that settlement exceeds $25,000.

Warren Berg: 30:11

So if if that's not the litigation representative, then who actually does make the final call?

Caitlin Gerstel: 30:17

So as lawyers, it's it's part of our duty to take appropriate steps to prove the value of the child's claim and also to advise their litigation representative when we think a settlement is reasonable and not worth exposing the claim to further litigation risks. However, once the litigation representative is on board, we typically need to get a court order in order to fully lock down the terms of the settlement with the minor. This is obviously pretty important to defendants and their insurance companies as they want to have certainty that they can close their file for good. Because without a court order approving the settlement, there's still a possibility that the child can repudiate the settlement when they turn 18 and try to start the whole thing again on their behalf.

Warren Berg: 30:54

So how do you get a court order to confirm the settlement on behalf of a child?

Cynthia Carels: 30:58

So when we have cases involving kids, uh one of the first things we're going to do is put the office of the public guardian and trustee on notice. So that office falls within the provincial ministry of justice. Um, it provides services, tools, and support for personal and financial matters to vulnerable Albertans and their families. And this includes protecting the assets of minor children and personally personal injury claim lawsuit settlements do fall under their purview.

Caitlin Gerstel: 31:27

Yeah, so once we have a settlement offer that we think is fair and we have the instructions of the litigation representative to proceed with the settlement, we will have the litigation representative swear an affidavit that sets out all the facts of the case, the investigations we undertook to assess the child's injuries and associated damages, the extent of the child's recovery, and whether they have ongoing need for treatment or exceptional costs that might occur in the future. And the litigation representative will also have to affirm under oath that they believe the proposed settlement is fair and reasonable. Then we send this affidavit, along with all the reports and accompanying assessments, to the office of the public public trustee, where the proposed settlement is very carefully scrutinized to make sure that everything has been handled properly and that the settlement amount falls within a reasonable range for the child. If the public trustee office is satisfied with proposed settlement, they will provide their recommendation in support of our application to obtain a court order to confirm the deal.

Cynthia Carels: 32:30

Oh, yeah, you're right. This is definitely a big job, but it is also a really important one. Uh and as of December 1st of 2020, the government of Alberta actually implemented a fee for conducting this review in an attempt to review some of the significant costs associated with this important work. So the fees uh the public trustees office now charge range from $1,000 to $4,000 plus GST, depending on the size of the settlement. So this is another reason why it's really useful to have a lawyer involved in cases for kids, because this new fee can definitely take people by surprise, and we want to make sure that it's accounted for in the actual settlement itself, so that the wrongdoer is the one who bears the costs of this work.

Caitlin Gerstel: 33:19

And then assuming the Office of the Public Trustee concurs with our recommendations, they will endorse a copy of the court order that we will ultimately want a judge to then sign off on, which is yet another layer of protection for children involved in litigation. With the proposed court order in hand, along with the recommendation of the public trustees office, someone from our office will actually need to make a formal application before a justice of the Court of Queen's Bench to get the settlement approach. Yeah, to get the settlement approved. If the judge has any concerns, they can refuse to sign off on the settlement until their concerns are satisfied.

Cynthia Carels: 33:53

So does this happen very often? Well, at Weirbowen, we have been doing this kind of work for a very long time. So our office is extremely familiar with predicting what the office of the public trustee as well as what the justices at the courthouse are going to be looking for. So when we compile our affidavits and all of the supporting evidence, we're going to make sure that package is complete, that it's easy to navigate, and that it covers all the bases. But again, that's part of the value add that we bring to this kind of work because trying to get a court order without having skilled legal expertise can be very challenging.

Warren Berg: 34:30

So once you have the court order, then what?

Caitlin Gerstel: 34:32

Well, I hate to say this, but as is the answer for many of your questions, Warren, it depends. The court orders we prepare typically break down exactly what has to be done with a child's settlement money. This includes distributing some of the settlement money to reimburse our firm for the disbursements we incurred in order to prove the child's claim, as well as paying out our legal fees. So in order to get sign off on that court order, both the office of the public trustee and the court will want to review our contingency fee agreements and our statements of account to confirm that they are fair and reasonable under the circumstances. In addition, the court orders may also contain directions to pay out some of the child's settlement money to other people. For example, if the child has had some treatment and has wrung up some debt at a physiotherapy clinic, the court order might direct us to pay off their bills with a portion of the proceeds of the settlement. Also, frequently a child's parents will also have incurred a number of expenses as a result of the injuries that gave rise to the lawsuit, and the court order might direct us to reimburse those expenses out of the settlement money. Once we have paid out all of those parties, there will be a lump sum amount that is earmarked exclusively for the child's benefit. If that amount is less than $25,000, we are typically able to release the funds into the hands of the parents or guardians so that they can manage it for the child.

Warren Berg: 35:52

How can you be sure that the money is used properly if you just hand it over to the parents?

Cynthia Carels: 35:56

Yeah, excellent question. And if we do transfer funds to parents or guardians, we actually get them to sign off on a guardian's acknowledgement of responsibility form. And that's going to bind them to some very specific requirements, including, first of all, that they will only use or expend this money for the minor's benefit. And secondly, when the minor reaches the age of 18 years, it's going to be their job to provide a full accounting to the minor of how that money was used. And then at age 18, the parent will also transfer the balance of the money to the minor at that time. And this is a responsibility our legal system takes very seriously.

Warren Berg: 36:39

So what happens when the amount is over $25,000?

Caitlin Gerstel: 36:42

Well, in that case, we need to get the office of the public trustee involved again, as that office is able to receive and then invest the funds on behalf of the child until they turn 18. The money is invested in what's called the public trustees common fund, and the resources are 100% guaranteed so that the miner's money is fully protected from the ups and downs of many other investment vehicles. However, since it's guaranteed, the rates of return from this fund may also be lower than what a parent or guardian might expect if they were to compare it to returns on, say, an RESP or other investment option. But our legislators have determined that security of the funds is paramount, so they are carefully managed and the children's assets are never put at risk.

Warren Berg: 37:24

So if all the money is being held by the public trustee until the child reaches adulthood, can the parents or guardians get access to any of that money before the child turns 18?

Cynthia Carels: 37:33

So yes, they can, but there is a gatekeeper who's assigned to make sure that that money is being used and accessed properly. So it's going to be up to the parent or guardian to speak with their assigned representative at the public trustee's office, and they're going to have to pitch their case for the release of funds, including providing supporting documentation to back up that request. So, for example, if a child has been seriously injured and has ongoing needs for therapy or equipment, those are typically reasonable requests which will likely be supported by the public trustee's office. Uh, asking money to or asking for money to, you know, take the entire family on vacation as another thing. So it probably wouldn't be.

Caitlin Gerstel: 38:17

Yeah, and then as the child approaches their 18th birthday, the public trustee will get in touch with them to provide a full accounting regarding the funds for their information and review. And assuming the child agrees with the accounting, as soon as they turn 18, the remaining funds will be paid out and they will have to sign a release form, bringing the public trustee's involvement to a close.

Cynthia Carels: 38:36

And this obviously assumes that once the child turns 18, they're going to have capacity to make their own decisions. Uh, but that's not always the case, though, particularly with severely injured or compromised kids.

Caitlin Gerstel: 38:48

Right. So if someone doesn't have capacity to make their own decisions when they turn 18, then a formal capacity assessment needs to take place in order to determine if they require an adult guardian or trustee on a go forward basis. I'm sure we could dedicate a whole other show to guardianship and trustee issues. Yeah.

Warren Berg: 39:05

I'm sure we could. Uh, but I just wanted to back up a little bit here, uh, because you were talking about the public trustee common fund being the place where a minor settlement gets invested before they turn 18. I know that just about every kind of investment fund comes with some sort of fee for service, so do kids have to pay for the government to manage their money in if this is a common fund?

Cynthia Carels: 39:27

Yeah, that's an excellent question. Uh and there are a myriad of fees involved in these settlements, um, you know, from a $75 file opening fee to annual administration fees that are based on the balance remaining in the fund for the child. Um, they also charge fees for preparing the tax statements for income earned. And every time a check is cut from the fund, there's a $7.50 administration fee last time I checked. Um, there are also fees for postage and for photocopying and faxes, and of course, GST on just about everything. Um, but everything does need to be accounted for to the child when they turn 18. So there is also uh a significant amount of transparency that's baked into this when those fees are charged.

Caitlin Gerstel: 40:13

So for many settlements involving minors, this is how the funds are handled. But in the cases of really large settlements involving kids, parents may have concerns about the government just handing over a bunch of money to a freshly turned 18-year-old. And at Weirbowen, we do see quite a few large settlements for kids because our office does so many birth injury cases, situations where the child has been left sometimes with a life-altering disability, such as cerebral palsy.

Cynthia Carels: 40:37

Or if a child has lost dependency on a parent at a very early age due to a fatal accident that claimed the life of their mom or dad. And those kinds of cases can end up in some pretty large settlements that could benefit from a more specialized plan. And these are known as a structured settlement.

Warren Berg: 40:55

Okay, I've seen this on TV and commercials. What exactly is a structured settlement?

Cynthia Carels: 40:59

So a structured settlement is a special kind of arrangement that we can set up that actually pays out compensation in periodic, tax-free installments rather than as a single lump sum amount. And these are used to try and make sure that the funds are going to last for long-term management of medical or other financial needs. And they can be customized to account for those needs to the best of our abilities with the knowledge that we have at the time of placing the structure. And a structured settlement provides guaranteed and predictable payments. The other interesting thing about them is that when a structure is designed properly, it does not count as an asset that might impact someone's eligibility for government-sponsored programs like Alberta's Assured Income for the Severely Handicapped Program or other programs that subject a potential beneficiary to those asset tests.

Caitlin Gerstel: 41:54

One other important thing to know about structures, however, is that while they do offer a lot of security, once they have been placed, they cannot be changed. The payment schedule is locked down and actually attached to the court order. And there are some pros and cons to this, depending on your point of view, because some people would prefer a lot more flexibility with the money, while others, especially parents, appreciate the rigidity of the structure so that they can have confidence that the money isn't going to dry up if their child makes big mistakes when a lump sum of money arrives in their bank account in young adulthood.

Warren Berg: 42:24

So if a family has questions about a claim involving a child and they want to reach out to you, what is the best way to call your office directly?

Caitlin Gerstel: 42:31

Yes, they can call our main switchboard at 780-424-2030, and our receptionist will make sure to connect the callers with a lawyer. Or alternatively, they can reach out on our website at werebown.com. That's W-E-I-R-B-O-W-E-N dot com.

Warren Berg: 42:49

So what kind of information might you be looking for in that first call?

Cynthia Carels: 42:52

So a whole bunch of stuff, you know, we've talked about many times on this show before. We're going to want to know about where and when the injury occurred and what injuries the child actually sustained. And so that's helpful for us to figure out, you know, do are there limitation periods that apply? Are we bringing this claim in the right jurisdiction? Uh, and, you know, is this going to be worth it? Um, if the if the injuries are significant or not. Uh we're also going to want to know about what happened to the extent a parent does know, and they might not know a lot about the circumstances of a child's claim, especially if it happened under somebody else's supervision. Uh we're going to want to figure out who they think is responsible for the injury and the reasons why. Uh we're going to want to know if there were any witnesses. This is a really important one. Um, you know, we want independent witnesses who may have first hand knowledge of what happened to help us figure out uh who is potentially to blame here. And of course, we are going to want to know the child's date of birth so that we can mark our calendars accordingly, especially if they're getting really close to turning 18.

Warren Berg: 43:55

Now this seems like a lot of information. What if somebody doesn't have all these answers?

Caitlin Gerstel: 44:00

That is totally okay. Uh many times our potential clients don't have all the answers, and and that's one of the reasons we encourage people to call early.

Warren Berg: 44:07

Now we've spoken a few times today about the various fees that might be associated with having the office of the public trustee involved in cases for kids. Does this mean that parents have to have a lot of money in order to bring a claim where kids are involved?

Cynthia Carels: 44:21

Thankfully, no. Uh if it is our opinion that the potential client has a meritorious case, we will generally run these kinds of files on what's called a contingency fee agreement. And that means we're going to get paid based on a percentage of what we ultimately recover for our clients. So law societies have identified that the cost of legal fees, you know, if they're accrued strictly on an hourly basis, can present a barrier to justice, particularly for individuals who have been injured as a consequence of someone else's negligence. So parents don't need to worry about coming up with resources to pay lawyers' fees for years and years and years while awaiting a settlement for their severely injured children, especially since these cases can take many years to work their way through the system. And they also don't need to worry about all the fees associated with getting the office of the public trustee and the courts involved with formalizing their child settlement by way of a court order. We at Weir Bowen know what to expect. We can, you know, look to these future expenses and we're going to be asking for them from the defendants, from insurance companies, so that we're making sure that the right parties are bearing the costs instead of the kids.

Warren Berg: 45:34

We've covered a lot of different ground here today on the February edition of Ask the Lawyer for 2026 with Caitlin Gerstel and Cynthia Carrolls of We're Bowen L L P in Edmonton. If you want to find out more, you can give them a call at 780-424-2030. You can also find out more information about how to contact them on their website, We'Bowen.com. That's W-E-I-R B O W E N dot com. You can also find a link to Ask the Lawyer on our homepage where these shows will be available to stream on demand. Our thanks once again going out to Caitlin and Cynthia.

Cynthia Carels: 46:08

Thanks, Warren. It was great being here. Yeah, and thanks for giving us the opportunity to share this, you know, ongoing important information with your listeners. And hopefully, if it prompts someone to pick up the phone, uh, you know, who otherwise might not have ever even thought they could call a lawyer, then uh we think this time has been well spent.

Warren Berg: 46:24

And we look forward to learning much more through this series, which takes place here on the last Saturday of every month here on Windspeaker Radio, CFWE and CJWE.