Wrongful Death Cases in Ontario – Ottawa Injury Lawyer Explains Some Basic Principles – Family Law Act Claims
In Ontario, family members (listed in the Family Law Act) can advance wrongful death claims against the person or persons who caused the death of a family member. In Ontario, “wrongful death” claims are called Family Law Act claims.
Section 61 of the Family Law Act is the statutory provision that allows family members to seek wrongful death damages. That section of the Family Law Act of Ontario states in part as follows:
Family Law Act
PART V DEPENDANTS’ CLAIM FOR DAMAGES
Right of dependants to sue in tort
61. (1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction. R.S.O. 1990, c. F.3, s. 61 (1); 1999, c. 6, s. 25 (25); 2005, c. 5, s. 27 (28).
Damages in case of injury
(2) The damages recoverable in a claim under subsection (1) may include,
(a) actual expenses reasonably incurred for the benefit of the person injured or killed;
(b) actual funeral expenses reasonably incurred;
© a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;
(d) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and
(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred. What Does the Court Consider – What Is a Wrongful Death Claim?
The courts will consider all the circumstances in arriving at a fair damages award> the following is a general list to consider:
LOSS OF GUIDANCE, CARE, AND COMPANIONSHIP Evidence for FLA Claims – Wrongful Death
Quinn Thiele Mineault Grodzki LLP, 2015
The following is a non-exclusive list of evidence that the court will consider in assessing the loss of guidance, care, and companionship experienced by family members as a result of the injury or death of a loved one.
1. Family visits / Activities – Describe the nature and frequency of family visits involving your family member – Who was present for these visits? – How regularly did each person see the deceased/injured person? – What took place at the visits (dinner, board games, movie night, etc.)? – Describe the activities that you took part in with your family member (family business, bike rides, walks, going to sports events, etc.) – How frequently would these activities take place?
2. Keeping in touch – Describe how regularly each person would talk to your family member – How regularly did you correspond? – What was the preferred method of conversation (phone, email, regular mail)? – What was discussed? – Would you talk for a long time?
3. Information about your family member – What sort of person was your family member? – What was their life like and what did they do for a living? – Was there some particular trait about that family member that made you especially happy or proud of them?
4. Nature of the relationship – Describe the ways in which it was a loving relationship – Describe the ways in which you would show affection to each other (gifts, post cards, making special meals, congratulations, etc.) – Was there any conflict in the relationship? – If so, what was the source of conflict?
5. Guidance / Advice – Describe the ways in which your family member gave you instruction, teaching, and assistance – Did your family member help with homework, sports, financial advice, or relationship advice? – How often would you ask for advice / guidance? – Did you provide guidance to your family member and if so, describe the ways in which you found this fulfilling / satisfying
6. Care / Kindness – Describe the ways in which your family member showed you care or kindness – Did your family member help you out with difficult situations? – Did your family member go out of their way to help you? – Did your family member give you gifts? – Did they do favours and ask nothing in return? What would they do? – Would you look after each other when you were sick? – Did you provide care or kindness to your family member and if so, describe the ways in which you found this fulfilling / satisfying
7. Companionship – Describe the ways in which your family member was a special person who cannot be replaced – Describe any special activities that just you and your family member would do together – Did your family member tell you stories? – Would your family member keep you company when you were lonely? – Did you call them to share your happiness or alleviate your sadness?
8. Holidays / Special occasions – Describe the holiday tradition of your family – Whose house would you get together at, who would come, and did this happen every year? – What holidays would you celebrate together (Thanksgiving, Christmas, Easter, etc?) – Did your family celebrate birthdays together? – Did your family member attend graduations / school performances?
9. Physical / Digital evidence – Photographs / videos of your family together – Can be special occasions or everyday occurrences – Letters / post cards / birthday cards sent in the mail – Phone bills showing regular phone calls to your family member – Email and text messaging – Facebook posts
10. Business relationships – Photographs / videos of your family together in business – Description is extent of involvement – Level of mentorship between children and parents.
11. Any other information you feel is relevant to your relationship with your family member.
12. Provide photos of family together. Doing activities, together etc…. Meaning of “Wrongful Death”
The term “wrongful death” refers to cases in which someone is killed because of the negligence (legal wrong) of another person. This can happen in any number of situations from drunk driving to medical malpractice, etc.
Who can advance a “Wrongful Death” / Family Law Act claim?
In Ontario, if you are the deceased’s surviving spouse, child, parent, grandparent or sibling, you may be able to sue the wrongdoer for damages (awards of money) arising out of his or her actions. Types of Damages Available for Surviving Relatives of Wrongful Death Cases
As an example, I will use the loss of a parent to explain some principles.
The types of damages available can generally be split into two categories.
1. Under Section 61 of the Family Law Act, surviving relatives can make claims for “loss of guidance, care and companionship” that they might reasonably have expected to receive from the person if the death had not occurred.
2. Family members can also make claims based on financial losses (economic losses). These claims include:
o Loss of financial support the deceased would have provided his or her relatives through employment or other means;
o Losses of income sustained by family members as a result of the death. For example, if you are not able to work for a period of time following the accident because of emotional distress, you may be able to claim lost income from the wrongdoer;
o Actual expenses reasonably incurred for the benefit of the person killed.
For example, if you were forced to purchase medicines or other items required to ease the injured party’s suffering before he or she died, you may be able to sue for the amount of money spent on these items;
o A reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;
o Losses due to household and child care services the deceased would have provided but for the his or her death;
o Actual expenses reasonably incurred for the deceased’s funeral.
In many cases, the opinions of career and actuarial experts are required to argue what your future losses are likely to be. Courts will want to compensate you appropriately but it is important to know that you are mostly being compensated for economic losses as a result of the death.
Damages for financial losses can be claimed in addition to damages for loss of guidance, care and companionship. Loss of Guidance, Companionship and Care – Also Called Wrongful Death Claims
A child is entitled to compensation for the loss of guidance, companionship, care and training that he/she would have received from their mother. The award under this head is meant to replace a loss that the child suffers because of the loss of care, guidance and affection. It is difficult for the court to assess such losses, as “money cannot buy a suitable replacement for a parent. It is not impossible to replace a parent, but … it is impossible (and invidious) to make nice comparisons between one parent’s love and another’s.
A child has lost the care, love and support of her mother who would have provided guidance throughout their lives. The range for loss of care, guidance and companionship (in other words, wrongful death damages), ranges significantly in Ontario.
A number of factors have been taken into consideration by the courts including:
– The age, mental and physical condition of the claimant; – Whether the deceased lived with the claimant(s) and if not, the frequency of visits; – The intimacy and quality of the claimant’s relationship with the deceased; – Whether or not the claimant is emotionally self-sufficient, whether or not claimants who are children have married, and whether or not spouses who are claimants have remarried; and – The joint life expectancy of the claimant and the deceased, or the probable length of time the relationship might be expected to continue.
In determining the amount of damages, the following non-exhaustive list of factors is taken into account:
(I) The age, mental and physical condition of the claimant; (ii) Whether the deceased lived with the claimant, and if not the frequency of the visits; (iii) The intimacy and quality of the claimant’s relationship with the deceased; (iv) The claimant’s emotional self-sufficiency; (v) Whether the deceased spouse has remarried; and, (vi) The deceased and the claimant’s joint life expectancy, or the probable length of time the relationship would have endured. Inheritance Loss
An inheritance — or the expectation of one — can also play two roles in a wrongful death claim: first, as a head of damages, known as “loss of inheritance,” and second, as a deduction from the overall award made to account for any benefits received by the claimant in the deceased’s estate.
A child may say that they have lost a potential inheritance by their mom’s premature death, on the basis that the untimely death stopped her from accumulating assets that would eventually have entered her estate and left to the children. The compensation is meant to replace the amount by which the deceased’s estate would have increased if she had lived.
A claim of this nature is hard to determine and is made up of uncertainty and any award must necessarily be largely arbitrary. It is very difficult to predict what assets a person might have accumulated over their natural life span, how they might have dealt with them during that period, or predict how they might have dispersed them at death. The deceased may have put aside savings at one point in life only to spend them later, or invested in real estate (the matrimonial home or otherwise) only to consume the value of those assets during retirement. Catastrophes might have arisen that required the deceased to draw on savings; or perhaps the deceased would have spent the majority of her income, rather than saving, and not accumulated much in the way of assets at all. At the end of a natural life span she might have devised her assets entirely on her spouse, if he outlived her. The contingencies and uncertainties associated with the award are very high.
The other side of the inheritance claim is a deduction to account for any financial benefits flowing through the estate to the claimant right away on death. The amount deducted is not the actual amount received, but instead, the value of the acceleration of the inheritance — the value of the fact that the estate has come to the plaintiff much earlier than it would have done absent the wrongful death. In many cases, the Courts generally award a nominal sum — the conventional award for children ranges from $5,000 to $10,000 — to recognize the difficulty of calculating losses under this head of damages. However, Courts have awarded much more, depending on the evidence available.
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