2000 SKQB 106 Q.B. A.D. 1999 No. 628 J.C.P.A. IN THE COURT OF QUEEN’S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: MARY JANE HERMAN and SASKATCHEWAN GOVERNMENT INSURANCE RESPONDENT P. V. Abrametz for the appellant C. L. Kraft for the respondent JUDGMENT KRUEGER J. March 9, 2000 [1] Mary Jane Herman, as guardian of three infant children of a deceased single mother has appealed the decision of Saskatchewan Government Insurance that the children are not entitled to any additional benefits. The sole issue before the court is whether any additional dependant child care benefits are payable under s. 146(5) of The Automobile Accident Insurance Act, R.S.S. 1978, c.A-35 when the deceased victim was unemployed and had no income at the time of the fatal motor vehicle accident. [2] The facts have been agreed upon by the parties and may be briefly stated. On August 23, 1998, Bonnie Herman was the single mother of three children, Brett age 6, and twins Blade and Braden age 4. On that date she was involved in motor vehicle accident and suffered injuries which resulted in her death. She was not employed and not receiving any income at the time of the accident. Nor would she have become entitled to an income within six months of the accident if she had survived. [3] As there was no surviving spouse the children are entitled to any benefits payable under s.146(5) of the Act. [4] SGI paid to the Public Trustee for the children the sum of $47,427.00 being the minimum death benefit pursuant to s. 146(3). [5] Herman claims that since the money paid by SGI was in relation to the youngest child, who in the circumstances of this case, takes the place of surviving spouse, the death benefit becomes fixed at $47,427 and the formula used in s.146(1) would now read: $47,427 50% of IRB. Accordingly, the IRB to be used in s.146(5) should be $94,854. [6] For the reasons that follow, disagree. [7] The relevant portions of The Automobile Accident Insurance Act read as follows: 146(1) Subject to subsections (3) to (5), surviving spouse is entitled to death benefit calculated in accordance with the following formula: DB (50% IRB) where: DB is the death benefit payable; and IRB is the weekly income replacement benefit that the deceased victim would have been entitled to arising out of the accident if the victim had survived the accident. (2) The death benefit payable pursuant to subsection (1) is payable until the date that the surviving spouse dies. (3) The minimum death benefit payment that surviving spouse is entitled to receive pursuant to subsection (1) is $45,000. (4) For the purposes of subsection (3), the insurer shall capitalize, in accordance with the regulations, the surviving spouse’s death benefit pursuant to subsection (1). (5) Where, at the time of the accident, there are children who were dependent on the surviving spouse and who were dependants of the victim, the surviving spouse is entitled to an additional benefit in the amount calculated in accordance with the following formula: (5% IRB) DC where: is the benefit payable; IRB is the weekly income replacement benefit that the deceased victim would have been entitled to arising out of the accident if the victim had survived the accident; and DC is the number of the victim’s dependent children. (6) The benefit mentioned in subsection (5) respecting dependent child is payable until that dependent child reaches 21 years of age. 147(1) Where both of dependent child’s parents die in an accident, the dependent child is entitled to the death benefit mentioned in subsection 146(1) for each parent as if the dependent child were surviving spouse of each parent. (2) Where deceased victim is the sole parent of dependent child, the dependent child is entitled to the death benefit mentioned in subsection 146(1) as if the dependant child were the surviving spouse of the deceased victim. (3) Where, at the time of the accident, deceased victim did not leave surviving spouse and there is child who was dependent of the victim, the dependant child is entitled to the death benefit mentioned in subsection 146(1) as if the dependent child were surviving spouse of the deceased victim. (4) The death benefit mentioned in subsection (1), (2) or (3) is payable only until the dependent child reaches 21 years of age. (5) In case where subsection (1), (2) or (3) applies and where there is more than one dependent child, the following rules apply: (a) each dependent child is entitled to an equal share of the death benefit pursuant to this subsection as long as that dependent child remains under 21 years of age; (b) the dependent children are entitled to the death benefit mentioned in subsection 147(1) on the basis of the youngest dependent child being considered as the surviving spouse; (c) the death benefit mentioned in clause (b) is payable until the youngest dependent child reaches 21 years of age; (d) the dependent children are entitled to the benefit mentioned in subsection 146(5) calculated on the number of dependent children, but not including the youngest dependent child; (e) the benefit mentioned in clause (d) is payable until the second youngest dependent child reaches 21 years of age. [8] From reading of the whole of s. 146, am of the view that the benefits payable to surviving spouse are divided into two parts, both of which are based on the income replacement benefit that the deceased victim would have been entitled to had the victim survived the accident. 50% of the income replacement benefit is payable to the surviving spouse as death benefit and 5% of the income replacement benefit is payable for each dependent child up to age 21 as an additional benefit. The minimum death benefit that is payable is $45,000 adjusted for inflation. Where the deceased victim would not have been entitled to any benefit had the victim survived the accident there is still payable the minimum death benefit, but that amount does not become factor in calculating the income replacement benefit for the purpose of applying the formula contained in s. 146(5). It is the total amount payable as death benefit. The income replacement benefit, in this case, is zero and the amount payable pursuant to the formula in either s.146(1) or s. 146(5) is zero. [9] Section 147 of the Act does not assist Herman. It merely provides that where there is no surviving spouse or where the deceased victim was, as is the case here, sole parent, and there is more than one dependant child the surviving spouse death benefit under s. 146(1) is payable for the youngest child and the remaining children become entitled to the additional benefit payable under s.146(5). Where, however, no benefit other than the minimum death benefit of $45,000 (adjusted for inflation) is payable under s. 146(3) no further amount is payable under either s. 146(5) or s. 147(5). [10] The appeal is accordingly dismissed without any order as to costs.
SGI paid $47,427, the minimum death benefit pursuant to s.146(3) of the Automobile Accident Insurance Act, to the guardian of the three infant children of the deceased single mother. The guardian appealed SGI's decision that the children were not entitled to any additional benefits. She argued that since the money paid was in relation to the youngest child, who in the circumstances took the place of a surviving spouse, the death benefit becomes fixed at $47,427, and the formula used in s.146(1) would be half of the income replacement benefit(the IRB) that the deceased would have been entitled to had she survived the accident. Accordingly the IRB to be used in s.246(5) should be $94,854. The sole issue was whether any additional child care benefits were payable under s.146(5) when the deceased was unemployed and had no income at the time of the fatal motor vehicle accident. HELD: The appeal was dismissed without order as to costs. Where the deceased victim would not have been entitled to any benefit had she survived the accident, the minimum death benefit is still payable, but that amount does not become a factor in calculating the IRB for the purpose of applying the formula contained in s.146(5). It is the total amount payable as a death benefit. The IRB in this case was zero and the amount payable pursuant to the formula in either s.146(1) or s.146(5) is zero. Where no benefit other than the minimum death benefit of $45,000 (adjusted for inflation) is payable under s.146(3), no further amount is payable under either s.146(5) or s.147(5).