A sol­dier lost her son and her leg in a crash. Her fight against the Cana­dian Forces con­tin­ues.

National Post (Latest Edition) - - FRONT PAGE - AdriAn HumpHreys

In 2006, Capt. Kim Fawcett’s air force unit was gear­ing up for de­ploy­ment, not un­ex­pected for an ex­pe­ri­enced mem­ber of a high-readi­ness unit as Canada’s war in Afghanistan was ex­pand­ing.

This time, how­ever, there were ex­tra com­pli­ca­tions: Fawcett was a new mother just back from maternity leave, and her mil­i­tary hus­band had been or­dered onto base to pre­pare for an im­mi­nent mis­sion of his own.

Fawcett, a plan­ning of­fi­cer at the time, was able to make quick ar­range­ments to help both of their de­ploy­ments and, on the morn­ing of Feb. 21, 2006, she phoned her com­mand­ing of­fi­cer and re­ceived ap­proval to trig­ger the mil­i­tary’s man­dated child­care plan for their nine-month-old son, Keiran.

She put on her for­est green com­bat uni­form, with the but­ton-down side pock­ets in the pants, its match­ing win­ter coat and black com­bat boots. Her hus­band, a ma­jor, car­ried Keiran to their Jeep, kissed them good­bye, and Fawcett headed from their house near Cana­dian Forces Base Kingston to hand Keiran over to his grand­par­ents.

As she merged from the long on-ramp onto High­way 401, her Jeep spun on ice, slid across two lanes and slammed into the road’s con­crete me­dian. Be­hind her, strapped in his car seat, Keiran be­gan to cry. Near the bot­tom of his al­most per­fectly round face with three dim­ples, Fawcett saw a speckle of red. Per­haps he had bit his lip.

She was about to climb into the back seat to check on him when she re­al­ized how pre­car­i­ous they were, stuck block­ing the pass­ing lane. She thought it safer to carry him back across to the shoul­der of the high­way and up an em­bank­ment on the other side of a ditch to wait for help.

“I stepped down into the ditch and then we were hit broad­side right out of nowhere,” she says.

A truck crashed into Fawcett’s right side. She was car­ry­ing Keiran in her left arm and the im­pact sent him fly­ing. She had no idea where be­cause at that mo­ment the but­ton on her com­bat pants snagged on the truck’s front grill and she was yanked abruptly down. Both tires ran her over and the for­ward mo­tion tore off her right leg.

“I landed on my back on the 401,” she says. “I looked up and I just re­mem­ber see­ing a clear sky, and a snowflake had touched down on my nose.” It was the last thing she re­mem­bers of that day, which is a bless­ing.

Keiran had also landed on the high­way. As a transport truck bar­relled to­wards him, its driver caught a glimpse of what he thought was a doll in the mid­dle of the pave­ment, she was later told.

Noth­ing could be done. Fawcett al­most joined her baby. She had 21 frac­tures in ad­di­tion to her miss­ing leg. Shat­tered bones along her right side were held in place by the hardy cloth of her com­bat coat: her shoul­der, ribs, hand, fin­gers, wrist, fore­arm, el­bow and up­per arm, were in pieces. Her spine was bro­ken in five spots, along with her cheek­bone and jaw. Her re­main­ing foot twisted com­pletely around, still in her boot.

In the time since, Fawcett fought to over­power her grief as well as her in­juries. She fought to adapt to life as an above-knee am­putee. She fought to re­turn to work and to com­plete a se­cond tour of duty in Afghanistan — the first female sol­dier to serve in a war zone with a pros­thetic leg. She fought to ex­cel as a para-ath­lete, win­ning four world medals. She fought to climb to the top of Mount Kil­i­man­jaro, twice.

She has fought and fought but her fight­ing is not fin­ished.

Fawcett is now in a bat­tle with the Cana­dian Forces. Af­ter 10 years of lit­i­ga­tion, she is head­ing to the Fed­eral Court of Ap­peal to try to change the mil­i­tary’s de­ci­sion to deny her dis­abil­ity ben­e­fits.

“Six months af­ter I lost my leg I went back to work. I put the uni­form back on and I went back to work full time, even though I was still in and out of surgery,” she says. “I needed to re-join my unit, I needed to re­con­nect with my friends and mil­i­tary fam­ily.”

Fawcett, 49 and now liv­ing in Toronto with her hus­band, was raised in mil­i­tary cul­ture.

Born in Nova Sco­tia, her great-grand­fa­ther, grand­fa­ther and fa­ther were all in the armed forces. Her fa­ther re­tired an air force colonel. Grow­ing up, her fam­ily jumped from province to province ac­cord­ing to his mil­i­tary post­ings. Her two broth­ers are in the mil­i­tary.

Fawcett joined the army as a com­bat en­gi­neer in 1996 af­ter grad­u­at­ing from the Univer­sity of Man­i­toba. She later trans­ferred to the air force and worked as an air move­ment of­fi­cer, in­clud­ing on an early de­ploy­ment dur­ing the war in Afghanistan in 2002.

She met her hus­band, Maj. Cur­tis Smith, at Cana­dian Forces Base Bor­den, north of Toronto. Af­ter they mar­ried in 1998, their ca­reers kept them posted in dif­fer­ent cities for five years.

“It made try­ing to have chil­dren a lit­tle dif­fi­cult but that was just the way it worked and the na­ture of our oc­cu­pa­tions,” says Fawcett.

By 2004, though, the cou­ple was fi­nally posted to the same base, both in high-readi­ness units des­ig­nated for short-no­tice over­seas de­ploy­ments.

Fawcett was tapped to ap­ply for Canada’s elite spe­cial forces unit, Joint Task Force 2, or JTF2, but by the time she had her in­ter­view she was seven month’s preg­nant. She planned to reap­ply af­ter her maternity leave.

Keiran’s ar­rival — on May 7, 2005 — re­quired the cou­ple to map out a Fam­ily Care Plan, a mil­i­tary or­der for sol­diers in high-readi­ness units to al­ways be pre­pared with child care in case of a prompt de­ploy­ment.

Fawcett and Smith’s FCP needed spe­cial at­ten­tion: It was pos­si­ble they could both be de­ployed abroad at the same time and Keiran had health prob­lems, he was par­tially deaf and had a block­age be­tween his stom­ach and his in­testines. Should their du­ties over­lap, the cou­ple’s FCP was to leave Keiran with Smith’s par­ents.

On the morn­ing of the crash, Smith was or­dered onto base for an ur­gent train­ing ses­sion prior to im­mi­nent de­ploy­ment to Africa. Fawcett’s unit was ex­pected to be next, she says, so she ac­ti­vated the plan to have Keiran’s grand­par­ents step in as care­givers.

Af­ter the cat­a­strophic crash, her re­ha­bil­i­ta­tion was dif­fi­cult but the re­sults re­mark­able. She found the pain eas­ier to bear when chan­nelled into sport rather than tra­di­tional phys­io­ther­apy. And she used her grief over Keiran as mo­ti­va­tion.

WE WERE HIT BROAD­SIDE RIGHT OUT OF NOWHERE... I LANDED ON MY BACK ON THE 401. I LOOKED UP AND I JUST RE­MEM­BER SEE­ING

A CLEAR SKY, AND A SNOWFLAKE HAD TOUCHED DOWN ON MY NOSE. — CAPT. KIM FAWCETT Capt. Kim Fawcett lost her son and her right leg in a hor­rific crash. Her re­cov­ery has been re­mark­able, but one bat­tle con­tin­ues: against the Cana­dian Forces

AN IN­VES­TI­GA­TION CON­DUCTED BY THE CANA­DIAN ARMED FORCES CON­CLUDED THAT CAPT. FAWCETT WAS NOT ON DUTY AT THE TIME OF THE ACCIDENT AND THAT HER IN­JURIES WERE NOT AT­TRIB­UT­ABLE TO MIL­I­TARY SER­VICE. — MAJ. DOUG KEIRSTEAD Does ex­e­cut­ing a Forces-man­dated care plan mean Fawcett was on duty at the time of the crash? The mil­i­tary says no.

“I kind of thought, okay, if Keiran was alive right now, what would I want to learn to do with him? Swim, bike, run,” she says. “Three skills you would nor­mally want to do with your child. Ev­ery step my son wasn’t go­ing to take I would take in his mem­ory.”

Fawcett com­bined her ef­forts to learn how to swim, bike and run again into para­triathlon. She earned high hon­ours, in­clud­ing two bronze and two sil­ver medals at in­ter­na­tional games. Her re­silience sparked an ap­pear­ance on The Oprah Win­frey Show.

Fawcett had also re­turned to work, but her job had changed. At first she was posted to the Royal Mil­i­tary Col­lege to work with cadets. Then she be­came a spe­cial ad­vi­sor on the care of the ill and in­jured.

In 2008 she re­de­ployed to Afghanistan. Two years af­ter her own son’s death, her mis­sion was to bring 20 fam­i­lies of Cana­dian sol­diers who had been killed on de­ploy­ment to visit Afghanistan to see how and where their sons had lived, fought and died.

Mean­while, her bills for pros­thetic legs and leg re­pairs piled up, she says. So, 15 weeks af­ter the crash, she ap­plied for mil­i­tary dis­abil­ity ben­e­fits. The mil­i­tary’s ini­tial in­ves­ti­ga­tion deemed her on duty at the time of the crash but her unit’s new com­man­der dis­agreed and de­nied her claim.

“I was the du­ti­ful sol­dier. I was try­ing to restart my ca­reer, wait­ing for the next chal­lenge, the next level, the next pro­mo­tion,” she says. So at first she let it go.

As the bills con­tin­ued to mount, how­ever, and as she heard of other sol­diers with sim­i­lar in­juries ap­proved for ben­e­fits and dis­abil­ity pen­sions, she de­cided to file a grievance in 2009.

Af­ter a two-year wait, Fawcett’s case was fi­nally ad­dressed — but the mil­i­tary’s de­ci­sion to deny her ben­e­fits was up­held. So she sought a ju­di­cial re­view by the Fed­eral Court.

A judge found the mil­i­tary’s de­ci­sion to deny her ben­e­fits to be un­rea­son­able and or­dered a reeval­u­a­tion.

In 2015, her claim was yet again de­nied. So again she sought the court’s re­view, and again it was sent back for re-eval­u­a­tion. The mil­i­tary’s as­sess­ment did not change and Fawcett again ap­pealed. Last year, a third Fed­eral Court judge fi­nally ruled in the mil­i­tary’s favour.

Fawcett, who is still in the mil­i­tary but is on med­i­cal leave, is now ap­peal­ing that de­ci­sion.

“I was serv­ing my coun­try and at the same time not be­ing able to pay for my legs and my leg re­pairs,” she says. “I had such amaz­ing ex­pe­ri­ences when I had both my legs and it’s re­ally hard to have to ad­mit to your­self that you don’t have the sup­port of your chain of com­mand.”

In Fe­bru­ary, on the an­niver­sary of the crash, an en­ve­lope marked FI­NAL NO­TICE ar­rived at her home. She opened it know­ing what was in­side: a bill for $34,151.15 from the com­pany that makes her pros­thetic leg.

“This is for re­pairs for my leg from when I was still in uni­form, serv­ing my coun­try. I find it dif­fi­cult to swal­low. My lit­tle boy would (have been) 13 in May. It’s hard to be­lieve 12 years have gone by and I’ve spent the last 10 years fight­ing for a pen­sion.”

The heart of the dis­pute is the in­ter­pre­ta­tion of “on duty.”

The mil­i­tary ar­gues it was per­sonal fac­tors not mil­i­tary ser­vice that caused Fawcett’s in­juries; that at the time she was act­ing as a mom not a sol­dier.

Fawcett ar­gues she was re­quired to have a Fam­ily Care Plan by mil­i­tary or­der and ac­ti­vated that plan to ac­com­mo­date her and her hus­band’s prepa­ra­tion for de­ploy­ment; she was in uni­form dur­ing work hours with the ap­proval of her com­mand­ing of­fi­cer to ex­e­cute the care plan.

In May she says she re­ceived a let­ter with an of­fer from the mil­i­tary’s lawyers.

“It es­sen­tially said they won’t give me a dis­abil­ity pen­sion but they’ll name a build­ing af­ter my dead son. It was very up­set­ting.”

For its part, the Cana­dian Armed Forces says it does not min­i­mize Fawcett’s loss but stands by its de­ci­sions.

“The accident that in­jured Capt. Kim­berly Fawcett and claimed the life of her son was a ter­ri­ble tragedy,” says Maj. Doug Keirstead, a mil­i­tary spokesman. “An in­ves­ti­ga­tion con­ducted by the Cana­dian Armed Forces con­cluded that Capt. Fawcett was not on duty at the time of the accident and that her in­juries were not at­trib­ut­able to mil­i­tary ser­vice.”

Keirstead says he can­not dis­cuss Fawcett’s per­sonal sit­u­a­tion be­cause of the Pri­vacy Act and, be­cause the mat­ter is still be­fore the courts, de­clined to dis­cuss the le­gal case.

A date for her ap­peal hear­ing has not been set.

PHO­TOS SUP­PLIED BY KIM FAWCETT

Kim Fawcett with her son Keiran. Af­ter the crash that killed him and wounded her, she re­turned to ac­tive duty.

HAND­OUT

Capt. Kim Fawcett di­rected her grief to­ward sport.

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