Diminished Housekeeping Capacity

On November 3, 2006, I gave a presentation at a Medical/Legal conference on the presentation of a chronic pain case to a trial judge. To compliment the presentation, I wrote a paper on the current state of the law in British Columbia regarding Diminished Housekeeping Capacity. Below is an excerpt from the paper I wrote for the course materials.
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The partner who provides domestic services often works far in excess of 40 hours per week in order to provide a "home". Women who work in the home may have given up a career or a type of work which would enable them to improve their earning capacity.

Justice Cory, Supreme Court of Canada
Peter v. Beblow

The idea that a man who primarily works outside the home is entitled to claim for a pecuniary loss for his loss of earning capacity, yet a woman whose capacity to work inside the home is diminished is entitled to nothing for the loss goes against the core principles of Tort Law and promotes continued gender inequality.

It has taken a long time, but courts in Canada are finally recognizing that unpaid labour performed by women inside the home is an essential component to the economic viability of the family unit. Since the Supreme Court of Canada decision in Sorochan v. Sorochan in 1986, courts have been recognizing the contribution of women inside the home in family disputes through principles of unjust enrichment. Unfortunately, gender equality has been slower to develop in Tort Law than it has in Family Law and diminished house keeping capacity does not appear to be pursued as seriously as loss of earning capacity.

The leading case in British Columbia on diminished housekeeping capacity is a decision of a five member panel of the Court of Appeal in Kroeker v. Jansen. Since the decision of Gibbs J.A., for the majority, in Kroeker, the law has taken a few steps in various directions. This paper is intended to review the development of the law relating to diminished housekeeping capacity and highlight some of the strengths and pitfalls of advancing this type of claim.

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