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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 a 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 the loss of guidance, care and companionship.

Section 61 of the Family Law Act makes provision for compensation for the loss of guidance, care and companionship, 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.

If you want to learn more about what’s involved in pursuing a Family Law Act Tort Action, as well as the history behind the evolution of the law, then please click the “link” to read my blog entitled “How Do You Proceed with a Family Law Act Tort Action?”.

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 Chanukkah? 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.

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.

Trying to cope with the array of emotions after the untimely death of a loved one following a tragic, fatal car accident is difficult enough as it is. You should be focusing on mourning your loss together with your family, and not having to navigate your way through a complex litigation process. Let Rudder Law Group fight for you to get you and your family the compensation you deserve, as well as the necessary multidisciplinary treatment, care services, and support needed to optimize your level of independent living, and your full mental, physical, social and vocational ability. Let us help facilitate the optimization of your reintegration, social and economic inclusion, and participation in all aspects of your life in society.

If you lost a loved one as a result of a tragic motor vehicle accident, then Rudder Law Group can help you and your family gain access to the necessary multidisciplinary treatment, care services, and support  you need to recover following your mourning period. I’ll also obtain compensation for your loss of guidance, care and companionship in what is known as a Family Law Act claim.

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