Family Law Act Claim

If you were to sadly die from a motor vehicle accident caused by the negligence of the at-fault driver, then your estate cannot claim for an award in damages for your untimely loss, from a successful tort lawsuit. However, if you died, or sustained a serious and permanent impairment, or a serious and permanent disfigurement, then your spouse, children, grandchildren, parents, grandparents and/or siblings may claim for an award of damages further to section 61 of the Family Law Act, R.S.O. 1990, c. F.3.

The award in damages that they could claim further to section 61(2) of the Family Law Act, are as follows:

1. Actual expenses reasonably incurred for the benefit of either your injury or death;
2. Actual funeral expenses reasonably incurred;
3. A reasonable allowance for travel expenses actually incurred in visiting you during your treatment or recovery;
4. Where, as a result of your injury, your spouse, children, grandchildren, parents, grandparents and/or siblings provided nursing, housekeeping or other services for you, a reasonable allowance for loss of income or the value of the services; and
5. An amount to compensate for the loss of guidance, care and companionship that your spouse, children, grandchildren, parents, grandparents and/or siblings might reasonably have expected to receive from you if your injury or death had not occurred.

If you were involved in a motor vehicle accident where you sustained catastrophic or severe injuries and impairments, which adversely impacted you ability to provide care, guidance, and companionship to your children, then in addition to my claim for an award for damages for you, I would also claim an award for Family Law Act damages for your children too.

If you want to learn more about the ​​various kinds of monetary compensation you can claim in a tort lawsuit for compensatory damages, then please click the “link” to read my blog entitled “What Damage Awards Do I Get from a Successful Tort Action?”.

A Brief History of the Law

In a case entitled Vana v. Tosta, [1968] S.C.R. 71, 66 D.L.R. (2d) 97, 1967 CanLii 21 (SCC), the Supreme Court of Canada affirmed in 1967 that damages can be awarded in Canada for the loss of guidance, care and comfort provided by your loved one.

However, the statutory scheme permitting recovery for damages for the loss of guidance, care and companionship became part of the law of Ontario in 1978 with the introduction of the Family Law Reform Act, 1978, S.O. 1978, c. 2. Section 60(2) of the Family Law Reform Act – now nominally known as the Family Law Act, s. 61(2)(e) – provided that damages recoverable in a fatal accident claim “may include” damages for your loss of guidance, care and companionship.

Section 61 of the Family Law Act makes provision for compensation of your loss of guidance, care and companionship, which reads as follows:

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 . . . 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 to recover if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.

(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;

(c) 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 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 been expected to receive from the person if the injury or death had not occurred.

The purpose of the Family Law Act is to create a legal right of action by the dependants of the deceased for their individual losses as a result of the death. Named claimants in a fatal accidents claim are allowed to recover what they have lost, their dependency loss.

The introduction of the Family Law Reform Act represented a major change in the scope of the quantum of recovery of damages in fatal accident claims. At common law, no action lay for any loss in circumstances where the tortious conduct of the defendant caused another person’s death. However, in 1846, in England, through An Act for Compensating Families of Persons Killed by Accidents (9 & 10 Vict., c. 93), (made part of the law of Ontario and Quebec in 1847 with the introduction of the Fatal Accidents Act (10 & 11 Vict., c. 6), the tortfeasor was liable to an action for damages to certain prescribed persons in particular relationships with the deceased. The Fatal Accidents Act was not interpreted to permit compensation for grief, mental distress or solatium. Companionship was limited to pecuniary loss. It was eventually held that the Fatal Accidents Act permitted the granting of compensation to a child for the loss of his or her parents’ companionship. This was affirmed in a case entitled Vana v. Tosta (1967), [1968] S.C.R. 71, 66 D.L.R. (2d) 97. The prevailing fiction was that a child’s loss of a parent’s companionship was a pecuniary loss.

Following the aforementioned 1967 Supreme Court of Canada’s affirmation in Vana v. Tosta, supra, in 1969, the Ontario Law Reform Commission, in its Report on Family Law (Toronto: Department of Justice, 1969) Vol. 1 at p. 109, recommended that a full study be undertaken of losses, including losses which were non-pecuniary in their character, in both personal injury and fatal accident claims. The Commission recommended in its brief report that the legislation, which was then contemplated, limit recovery of damages in fatal accident claims to pecuniary losses, as the Commission assumed was the case under the Fatal Accidents Act.

The Family Law Reform Act was proclaimed in force in 1978. It provided for the recovery of “pecuniary loss” in respect of personal injury and fatal accident claims. However, s. 60(2) of the Act provided that recoverable losses by certain relatives of the deceased, expanded in the Family Law Reform Act to include siblings, may include an amount to compensate for the loss of guidance, care and companionship.

The question quickly arose whether compensable damages for the loss of guidance, care or companionship, included essentially non-pecuniary losses. The Court of Appeal for Ontario’s judgment in a case entitled Mason v. Peters (1982), 39 O.R. (2d) 27, 139 D.L.R. (3d) 104 (C.A.) put that debate to rest. In that case, the trial judge assessed guidance, care and companionship compensation for a mother whose 11-year-old son was killed in an accident in April 1978 at $45,000. He assessed the deceased’s sister’s damages at $5,000. Robins J.A., after reviewing the relatively meagre damages awarded in cases involving the death of children under the former Fatal Accidents Act, focused on companionship. He said, at p. 33 O.R., the following:

Whatever the situation may have been in earlier times when children were regarded as an economic asset, in this day and age, the death of a child does not often constitute a monetary loss or one measurable in pecuniary terms. The most significant loss suffered, apart from the sorrow, grief and anguish that always ensues from such deaths, is not potential economic gain, but deprivation of the society, comfort and protection which might reasonably be expected had the child lived – in short, the loss of the rewards of association which flow from the family relationship and are summarized in the word “companionship”.

Furthermore, subsequent cases, which were decided under both the Family Law Reform Act and the Family Law Act, ultimately revealed a great disparity in guidance, care and companionship damage awards. Three examples of such cases are as follows:

1. Reidy v. McLeod (1986), 54 O.R. (2d) 661, 27 D.L.R. (4th) 317 (C.A.), varg (1984), 47 O.R. (2d) 313, 11 D.L.R. (4th) 411 (H.C.J.);
2. Hamilton v. Canadian National Railway Co. (1991), 80 D.L.R. (4th) 470, 47 O.A.C. 329 (C.A.); and
3. Macartney v. Warner (2000), 46 O.R. (3d) 669, 183 D.L.R. (4th) 374 (C.A.).

Conventional Award vs. Case-by-Case Analysis

Since guidance, care and companionship damages assessments were not consistent, in the interest of certainty, some called for conventional awards. An example of this is seen in the case entitled Gervais v. Richard (1984), 48 O.R. (2d) 191, 12 D.L.R. (4th) 738 (H.C.J.). However, as it turned out, the call was not heeded, which was evident in cases such as Nielsen v. Kaufmann (1986), 54 O.R. (2d) 188, 26 D.L.R. (4th) 21 (C.A.) and Zdasiuk v. Lucas (1987), 58 O.R. (2d) 443, 39 C.C.L.T. 1 (C.A.), where it was established that in assessing guidance, care and companionship damages, the particular family circumstances in each case must be taken into account by the trier of fact. Even when guidance, care and companionship damages awards were reduced on appeal, the reduction was not premised on accepted “conventional” awards. For example, in Reidy, supra, the Court of Appeal for Ontario reduced the trial judge’s assessment of guidance, care and companionship damages, but it did not suggest that these assessments should be conventional.

The result of a case-by-case analysis of family relationships has led to a range of guidance, care and companionship assessments so broad as to defy description as conventional. The range of these assessments will, of course, expand upon continuing to permit juries to assess these damages.

The existing disparity in guidance, care and companionship awards is the inevitable result of choices made by the courts and the legislature. The courts could have established conventional guidance, care and companionship awards, or could have imposed rough upper limits as the Supreme Court of Canada did in respect of non-pecuniary general damages in personal injury cases, such as it did in the case entitled Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452. However, that has not happened thus far.

Alternatively, the legislature could have moved towards a legislative scheme such as exists in Alberta, where the Alberta Fatal Accidents Act, R.S.A. 1980, c. F-5, s. 8 (as amended) provides that in the event of the death of a child under 18 years of age, the court is directed to award an amount for bereavement for fatal collisions occurring after May 1, 2013, as $82,000 to a surviving spouse or interdependent partner, $82,000 to the parent or parents divided equally, and $49,000 to each surviving child of the deceased no matter his or her age. Interest is added to these amounts to the date of payment or settlement of the fatal car accident insurance claim. Unlike Ontario, this is done in Alberta without reference to other damages or evidence of damage.

The Ontario legislature may one day consider the merits of Alberta’s aforementioned system, but it hasn’t yet. So, in Ontario, each case must be given separate consideration to measure what Krever J. viewed as “immeasurable” and “incalculable” in Gervais, supra, at p. 201 O.R. Judges and juries are left to do the best they can in each case where the assessment of damages for guidance, care and companionship is required.

While reference to other guidance, care and companionship assessments involving deaths of children is helpful to test the reasonableness of the award, it is not determinative. Each case must be considered in light of the evidence material to the guidance, care and companionship claims in that case. The Court of Appeal for Ontario has consistently held that the guidance, care and companionship compensation in each case must be assessed in an objective and unemotional way. For examples of this assessment approach see the aforementioned cases entitled Hamilton, supra, and Macartney, supra. Since each case must be considered in light of the particular family relationship involved, assessments will, of course, vary. An appellate court will not lightly interfere with a properly instructed jury’s assessment of damages; however, the reasonableness of the jury’s assessment will be tested, but by comparison with assessments in other cases. This latter exercise has led to the establishment of a range of damages. These issues were referred to by Krever and Finlayson JJ.A. in the aforementioned case entitled Hamilton, supra, pp. 472-73 D.L.R.

Range of Damages

Surviving Parents of Children who Died

In a case entitled To et al. v. Toronto Board of Education et al. [2001] O.J. No. 3490, 55 O.R. (3d) 641, the Court of Appeal for Ontario deemed the “high watermark” for surviving parents of children who died in a fatal accident to be $100,000 in 2001 dollars, but the number is subject to inflation. The Court of Appeal for Ontario, in To v. Toronto, supra, noted at paragraph 37, the following about the high watermark as it specifically pertains to the surviving parents of a child who died in a fatal accident:

[37] The assessments of $100,000 for each of Mr. and Mrs. To might be viewed as being at the high end of an accepted range of guidance, care and companionship damages. The question that must be considered is whether those assessments are outside the accepted range of damages. In my view, the $100,000 assessments for Mr. and Mrs. To are not outside the range. Expressed in constant dollars, the $100,000 assessments for Mr. and Mrs. To are roughly comparable to the $45,000 guidance, care and companionship assessment in Mason v. Peters. In April 1978, (the month of the Mason v. Peters accident) the consumer price index for Canada was at 54.6. In February 1992, the month of the deceased’s death, the consumer price index was at 127.1. Given that increase in the consumer price index, it would take $104,753 in February 1992 dollars to purchase the same basket of goods purchased for $45,000 in 1978. I view Mason v. Peters to be an acceptable comparator for the purpose of assessing a range of “accepted damages”.

In addition, I note that the $45,000 Mason v. Peters guidance, care and companionship assessment was referred [to] by Robins J.A. as “modest” and an assessment that could “in no sense be considered excessive”. Although I think that the jury’s guidance, care and companionship assessments for Mr. and Mrs. To are high, they are not so high as to justify this court’s intervention. In my opinion, there was evidence in this case that would support a conclusion that damages for guidance, care and companionship in respect of the mother, father and sister were justifiably assessed at the high end of what one might describe as an accepted range of damages. There was evidence of an extremely close relationship between the deceased and his mother and father. It was open to the jury to find that Mr. and Mrs. To suffered a substantial loss of society, comfort and protection, all benefits that flow from the family relationship. I would not give effect to this ground of appeal.

Therefore, the high end of the range of a non-pecuniary Family Law Act claim, which was $100,000 in February 1992 dollars, increases along with the increase of the cost of a fixed “basket” of consumer purchases, such as food, shelter, furniture, clothing, transportation, and recreation. The increase in this cost is of course, inflation, which is a persistent rise over time in the average price of goods and services – in the “cost of living”. The consumer price index tracks how much the average Canadian household spends, and how that changes over time. The Bank of Canada uses it to target inflation, which further to the Court of Appeal for Ontario, must be factored into the adjustment of the current value of the accepted high-end range of damages for guidance, care and companionship, to correspond with the increasing monthly consumer price index.

The Court of Appeal for Ontario in a case entitled Fiddler v. Chiavetti, 2010 ONCA 210, at paragraphs 79 and 80, confirmed the aforementioned method of using the monthly consumer price index in adjusting the current value of the high-end range of damages for guidance, care and companionship, as follows:

[79] Osborne A.C.J.O. in To at para. 37 provided a method by which an amount that reflected the range of damages for guidance, care and companionship in past years could be adjusted for a current value. I would adopt this approach and allow that the jury would have awarded Debbie Fiddler damages at the high end of the range.

[80] In February 1992, (the month of the To accident) the consumer price index for Canada was at 83.3. In January 2005, the month of the deceased’s death, the consumer price index was at 105.3. Given that increase in the consumer price index, therefore, the damages in January 2005 equivalent to $100,000 in February 1992 are roughly $125,000.

Therefore, the Court of Appeal for Ontario in Fiddler v. Chiavetti, supra, adjusted the high-end range of $100,000 in February 1992 dollars to the high-end range of $125,000 in January 2005 dollars, to correspond with the increase in the consumer price index from 83.3 to 105.3.

As such, in order to ascertain what the current value of the high-end range of $100,000 in February 1992 dollars, is in your case, I would ascertain the consumer price index in the month and year that your subject motor vehicle accident occured, and then use the same method of adjustment to correspond with the increase in the consumer price index.

In order to find out how much it would cost on current dollars to buy $100,000 in February 1992, I would simply use the Inflation Calculator on the Bank of Canada website, which can be found at the following URL address:

• Bankofcanada.ca/rates/related/inflation-calculator/

Upon using the Inflation Calculator, I would quickly discover exactly how much it would cost in present day dollars, to buy a “basket” of goods and services that cost $100,000 in 1992 dollars, which would include the following data:

1. The percent change;
2. The number of years;
3. The average annual rate of inflation (%) / decline in the value of money;
4. The consumer price index for the first year (December 1992); and
5. The consumer price index for the second year (the year your motor vehicle accident occurred).

Therefore, after factoring in inflation as directed by the Court of Appeal for Ontario in To v. Toronto Board of Education, supra, and affirmed by the Court of Appeal for Ontario in Fiddler v. Chiavetti, supra, I would be able to ascertain what the high watermark is for the accepted high-end range of damages for guidance, care and companionship in present day dollars, specifically for the surviving parents of a child who died in a fatal accident.

The October 2020 Low-End Range of Acceptable FLA Damages for Surviving Parents

In Fiddler v. Chiavetti, 2010 ONCA 210, where a motor vehicle accident tragically killed a child on January 16, 2005, the Court of Appeal for Ontario concluded at paragraph 75 that the defence submissions on damages ($40,000 to $50,000), combined with the judge’s instructions, established a lower limit for damages for guidance, care and companionship for the surviving parents of a child who died in a fatal accident.

Upon using the Inflation Calculator, I would easily discover what it would cost in present day dollars, to buy a “basket” of goods and services that cost $45,000 (average between $40,000 and $50,000) in 2005 dollars, which includes the following data:

1. The percent change;
2. The number of years;
3. The average annual rate of inflation (%) / decline in the value of money;
4. The consumer price index for the first year (December 2005); and
5. The consumer price index for the second year (the year your motor vehicle accident occurred).

Therefore, after factoring in inflation as directed by the Court of Appeal for Ontario in To v. Toronto Board of Education, supra, and affirmed by the Court of Appeal for Ontario in Fiddler v. Chiavetti, supra, I will easily ascertain the present day low-end of the range for damages for guidance, care and companionship for the surviving parents of a child who died in a fatal accident.

Surviving Siblings of Children who Died

In To et al. v. Toronto Board of Education et al. [2001] O.J. No. 3490, 55 O.R. (3d) 641, the Court of Appeal for Ontario deemed the “high watermark” for the surviving brothers and sisters of children who died in a fatal accident to be $25,000 in 2001 dollars, but again, the number is subject to inflation. The Court of Appeal for Ontario, in To v. Toronto, supra, noted at paragraphs 44, 45 and 46, the following about the high watermark as it specifically pertains to the surviving siblings of a deceased child:

[44] Although Mary To suffered a significant loss of guidance and companionship as a result of the death of her brother, she will in all probability go on to establish a life of her own and likely a family of her own.

[45] As the majority stated in Hamilton, supra, the assessment in question must fall somewhere within the range of damages established in comparable cases involving the deaths of minor children. In my opinion, a $50,000 guidance, care and companionship assessment exceeds the accepted range of damages to a degree that requires this court’s intervention. To put it another way, the assessment is inordinately high.

[46] I accept that there was a very close relationship between the deceased and his sister, and that she suffered a significant loss of guidance, care and companionship as a result of her brother’s death. As was the case in Rintoul, supra, the circumstances of this case support a substantial assessment of guidance, care and companionship damages for the deceased’s sister. Since it would make no sense to prolong these proceedings and since this court has authority to vary the assessment in issue (see s. 119 of the Courts of Justice Act, R.S.O. 1990, c. C.43), recognizing that the jury was prepared to be generous, I would vary the assessment of Mary To’s guidance, care and companionship damages by reducing it from $50,000 to $25,000.

Therefore, the high end of the range of a non-pecuniary Family Law Act claim for the surviving sibling of a deceased child, is $25,000 in February 1992 dollars.

However, again, further to the Court of Appeal for Ontario, in order to ascertain what the current value of the high-end range of $25,000 in February 1992 dollars, is in present day dollars, which is the month and year of your motor vehicle accident, I would simply use the same method of adjustment to correspond with the increase in the consumer price index.

Upon using the Inflation Calculator, I would easily discover what it would cost in present day dollars, to buy a “basket” of goods and services that cost $25,000 in 1992 dollars, which includes the following data:

• The percent change;
• The number of years;
• The average annual rate of inflation (%) / decline in the value of money;
• The consumer price index for the first year (December 1992) 84.7; and
• The consumer price index for the second year (the year your motor vehicle accident occurred).

Therefore, after factoring in inflation as directed by the Court of Appeal for Ontario in To v. Toronto Board of Education, supra, and affirmed by the Court of Appeal for Ontario in Fiddler v. Chiavetti, supra, I would ascertain what the high watermark is in the present day for the accepted high-end range of damages for guidance, care and companionship in 2020 dollars, specifically for the surviving siblings of a child who died in a fatal accident.

Companionship, Care, and Guidance: Defined

The Court of Appeal for Ontario in To v. Toronto Board of Education, supra, defined companionship, care, and guidance, as follows:

Companionship, as it was defined in Mason v. Peters in a fatal accident context, consists of the deprivation of the society, comfort and protection which might reasonably be expected had the child lived. Robins J.A. described it as “the loss of the rewards of association which flow from the family relationship”. Care was referred to by Linden J. in Thornborrow v. MacKinnon (1981), 32 O.R. (2d) 740, 123 D.L.R. (3d) 124 (S.C.) as including “feeding, clothing, cleaning, transporting, helping and protecting another person”. Thornborrow was cited with approval by Robins J.A. in Mason v. Peters. See also Huggins v. Ramtej, [1999] O.J. No. 1696 (S.C.J.). In Thornborrow, Linden J. described guidance as including such things as education, training, discipline and moral teaching.

 As we can see above, the Court of Appeal for Ontario in To v. Toronto Board of Education, supra, refers to the decision Thornborrow v. MacKinnon, supra, because Linden J. provided a much more detailed interpretation of guidance, care and companionship, as follows:

 In looking at these words, “care, guidance and companionship”, one must approach them liberally since the legislation is remedial legislation, meant to be for the benefit of the citizens of Ontario.

…

In considering these words initially, it appears as though the guidance and care concepts are ones which generally flow from parents and older relatives to the younger members of the family. To a large extent that is true. But it is not uncommon in some situations for young people to guide and care for older members of the family.

 As for guidance, most of the guidance, that is, things such as education, training, discipline, moral teaching, et cetera, usually goes from older members to younger members of the family, but that is not universally so. Often it is the child who acquires some skill or knowledge which he imparts to the parents. Not infrequently parents are taught by their children about such things as modern music, for example rock and roll, modern styles, modern activities, modern morals. It is not a rarity that a child introduces a parent to a new sports activity such as skiing or tennis and gives guidance and instruction to the parent in mastering that sport. Of course, this is especially the case as a parent grows older and loses touch with some of the developments in the modern world. Children then are extremely important as teachers of their parents as well as vice versa. Where the evidence supports it, therefore, an award can include a sum for the guidance that a child can give to a parent as well as that which a parent can give to a child.

 As for the word “care”, I think a child can also give care to a parent. The Mason v. Peters case, supra, is an example of that, where a young boy who was killed had helped to care for his mother who was a paraplegic in a wheelchair and in need of his care. Thus, when a parent is ill, a child, even a small one, may assist in giving care. Care, I think, includes such things as feeding, clothing, cleaning, transporting, helping and protecting another person. This is especially important in relation to parents who are elderly, whose children often help them with the daily tasks of living, such as shopping, getting around, attending at various medical advisors and other events. Care, then, is a concept that can apply, on proper evidence, among all the members of a family, regardless of age.

 In relation to the notion of companionship, age differences are totally irrelevant. Members of a family enjoy the companionship of other members of that family no matter what their ages. People of the same age welcome the company of the others in their age bracket, of course, but older people enjoy being with the young and younger people enjoy companionship of older people as well.

 The companionship of a parent and child is a truly unique pleasure. The joy of sharing experiences with one’s child is hard to surpass, whether it be sports, culture, conversation or play. There are not many activities more enjoyable for a parent than to participate with one’s child in the celebration of birthdays, graduations, weddings, the births of grandchildren and all of the other landmark events in their lives. What greater joy is there than to be with one’s child on religious holidays, such as Christmas or Easter or Hanukkah? What could be a greater pleasure than to accompany one’s child to a movie, a circus or a hockey game? What can be more marvelous than to hear one’s child laugh, to cuddle it before bed or to watch it play with a dog? To see the enthusiasm for life in one’s children often helps to restore one’s own faltering commitment to a better world. Yes, companionship with one’s children is one of the most prized of human experiences. To lose that is one of life’s greatest losses. It was to provide compensation for that loss of companionship that the Ontario Legislature inserted that language into the Family Law Reform Act, 1978. It was not meant to be treated as a trivial loss, for it is not.

Thus, loss of guidance, care and companionship can be suffered by each member of a family as a result of the death or injury of any other member of that family. Age is irrelevant. It is always an individual matter that must be established on the evidence in each case. This may differ in every family and with each individual in the family. It may be that a parent may consider one of his children a “pain in the neck” and will avoid its company. If that is the case, then there would not be very much evidence of loss. The figure awarded would be low. But in most cases, I would expect that the evidence would show that parents do receive much in the way of guidance, care and companionship from their children, as well as the other way around. There is still no compensation allowed, however, for grief or solatium. The compensation awarded is for the heads enumerated, and anything in addition to that which would have been permitted under the common law.

… In my view the Legislature intended, by s. 60, to go further than merely codify the old law under the Fatal Accidents Act, R.S.O. 1970, c. 164, which limited damages for the death of children to pecuniary loss, that is, the potential economic gain that parents may receive from their children by way of support in old age or before. Under that inhuman principle we have seen situations where, because there was no pecuniary loss, nothing at all was awarded for the death of very small children: Barnett v. Cohen et al., [1921] 2 K.B. 461; a six- year-old was killed, no award at all given. We have also seen cases where insultingly small sums were awarded for older children: Courtemanche et al. v. McElwain et al., 1962 CanLII 150 (ON CA), [1963] 1 O.R. 472, 37 D.L.R. (2d) 595 (Ont. C.A.). It was no credit to the law that a wrongdoer, who injured a child, paid more damages than one who killed a child. It was said, in a kind of macabre jest that was a stain on our law, that it was better to kill a child than to injure one. This was a sickening situation, which embarrassed anyone who had anything to do with the law in this country. It was an affront to Canadians, who expect their law to be the embodiment of national and civilized thought. Such low damage awards were barbaric, and did not reflect the prevailing views of our society which recognizes that children have a special value that transcends the pecuniary benefits they may some day bestow on their parents.

Therefore, the jurisprudence and the evidence has shown that in the vast majority of cases involving the untimely, tragic death of a child as a result of a fatal accident, parents do receive much in the way of guidance, care and companionship from their children, as well as the other way around.

Contributory Negligence

However, it’s important to note that further to section 61(3) of the Family Law Act, your rights to damages is subject to any apportionment of damages due to your contributory negligence, which would reduce the amount awarded in damages to them. So for example, if you were awarded $100,000 in total damages, but you were found to be 25% contributorily negligent, then your total damages would be reduced by 25% ($25,000) down to $75,000.

You can be found to be contributorily negligent, if for example, you weren’t wearing your seatbelt during the accident. The underlying rationale is that you essentially contributed to the severity of your accident-related injuries and impairments, because if you wore your seatbelt as you are required to do by law, then it is likely that your injuries and impairments wouldn’t have been as severe.

Legislative Threshold, Monetary Threshold and Deductible

Even if you meet the aforementioned legislative threshold test, further to section 267.5(7)3 of Ontario’s Insurance Act, there are automatic deductions on an award for Family Law Act non-pecuniary general damages, unless the award meets specific monetary thresholds. For example, as of 2024 there is a $23,026.61 deductible from any award for Family Law Act non-pecuniary general damages, in accordance with the rules set out in section 267.5(7) of Ontario’s Insurance Act, unless your awards for same meet the 2021 monetary threshold of $76,754.06.

So, for example, if you were awarded $76,000 for Family Law Act non-pecuniary general damages in 2024, then $23,026.61 would be deducted from your award, which would leave you with $52,973.39. However, if you were awarded $77,000 for Family Law Act non-pecuniary general damages in 2024, then the aforementioned 2024 $23,026.61 deductible would not be applicable, because your award surpassed the aforementioned 2024 monetary threshold of $76,754.06, and therefore, your spouse, children, grandchildren, parents, grandparents and/or siblings would keep the total amount of the award.

Family Law Act Threshold Test Requirement

If the claim from your spouse, children, grandchildren, parents, grandparents and/or siblings arises from a motor vehicle accident, then they will not be legally entitled to an award in Family Law Act damages for past loss of income and earning capacity, and non-pecuniary general damages, unless you died, or sustained a serious and permanent impairment of an important physical, mental or psychological function, or a serious and permanent disfigurement, in accordance with sections 267.5(3)(a) and (b) of Ontario’s Insurance Act, R.S.O. 1990, c. I.8.

Family Law Act Past Economic Loss Deductible

Further to section 267.5(1) of Ontario’s Insurance Act, any award to your spouse, children, grandchildren, parents, grandparents and/or siblings for an award in damages for past loss of income and earning capacity between seven days after the automobile collision and the start of trial, which is in excess of 80 percent of net income loss for accidents that occurred before September 1, 2010, and in excess of 70 percent of the gross income loss for accidents that occurred after, is deducted. So, in Ontario there is a legislative deductible for a past economic loss tort award in a Family Law Act claim.

So, for example, if your spouse, children, grandchildren, parents, grandparents and/or siblings were awarded $100,000 gross, in damages for past loss of income and earning capacity in 2021, then 30% ($30,000) would be deducted, which would bring the total down to $70,000. However, in the same example, they would receive the full amount awarded to them for future loss of income and earning capacity without any deductions.

Death Benefits from Your Accident Benefits Claim

In addition to a tort claim, if you were to sadly die from a motor vehicle accident caused by the negligence of the at-fault driver, then your spouse, children, grandchildren, parents, grandparents and/or siblings may claim for death benefits through an accident benefits claim.

If you want to learn more about the companion accident benefits claim, and kickstarting the accident benefits application process, then please click the “link” to read my blog entitled “How to Get Your Accident Benefits Application Started”.

Death benefits are payable under section 26 of the Ontario Regulation 34/10: Statutory Accident Benefits Schedule (SABS 34//10), issued under the Insurance Act, R.S.O. 1990, c. I.8. Your insurer shall pay a death benefit in respect of an insured person who dies as a result of a motor vehicle accident either within 180 days of the accident or within 156 weeks after the accident, if the insured person was continuously disabled as a result of the accident.

However, no payments are payable to any person who dies before the insured person, or within 30 days after the death of the insured person.

Surviving Dependent

Death benefits to each surviving dependent and to each person to whom the insured person had an obligation at the time of the accident to provide support under a domestic contract, or court order, are payable in the sum of $10,000.00, or the amount fixed by optional benefits, if purchased .

If no payment is required to a surviving spouse, an additional payment to the insured’s dependents is made in the sum of $25,000.00 .

Surviving Spouse

Death benefits payable to the insured person’s spouse provides either $25,000.00 or the amount purchased under optional benefits . A payment of $10,000.00 is payable to each former spouse of the insured person to whom the insured was obligated at the time of the accident for support .

If the insured had more than one spouse entitled to payment, payment is divided equally among the spouses .

No Dependent

There is no provision for instances where there is no dependent.

Parent or Guardian

Where the insured person was a dependent, payment of $10,000.00 is payable to the person on whom the insured was a dependent, or the spouse of a person of whom the insured was a dependent, if that person was the insured’s primary caregiver at the time of the accident, or dependents of a person in respect of whom the insured was a dependent at the time of the accident .

This amount is divided equally between parents or guardians.

Funeral Benefits

Insurers shall pay a funeral benefit for an insured person who dies as a result of an accident. This amount is limited to $6,000.00, unless optional benefits are purchased .

I hope you found this information valuable. Rudder Law Group’s website is your one-stop source for answers to all of your legal questions concerning catastrophic impairment law, personal injury law and tort law.