Standing of a Common Law Spouse to Apply Under the Family Compensation Act (1983)

Under the Family Compensation Act, an action for damages against the person who caused the deceased’s death may be brought on behalf of the deceased’s wife, husband, parent, child or person to whom the deceased stood in loco parentis (s. 3). The intent of the Family Compensation Act is to compensate members of the deceased’s family for actual pecuniary loss suffered from the deceased’s death, as well as for having been deprived of the deceased’s support, guidance, and other monetary and non-monetary contributions he might have made to his family.

There are a number of aspects of the Act and its operation which call for study. Our preliminary work has identified one issue on which we believe immediate action is desirable, that is the status of a so-called “common law spouse” of the deceased under the Act.

In Louis v Esslinger; Dunphy et al. v Esslinger, (1981) 121 DLR (3d) 17 (BCSC) a recent decision of the Chief Justice of the Supreme Court of British Columbia, it was held that the word “wife” means lawfully married wife. Consequently, a common law wife had no entitlement under the Act to damages for the death of her common law husband. Presumably “husband” means lawfully married husband, with similar consequences.

The increase in common law relationships existing today is a fact to which the law must, we think, have regard. The Commission is aware that many different kinds of relationships and arrangements are embraced by the colloquial term “common law marriage.” In this project, the Commission examines whether it is necessary to extend the provisions of the Family Compensation Act to compensate common law marriage.

Keywords: Family Compensation Act; standing; locus standi; common law spouse;
death; deceased; non-pecuniary; pecuniary; claim; loss; damages;
compensation; fatal; accident; decedent; family; maintenance; survival of
action