Section 61(1) of the Family Law Act involves the family members of individuals who are injured or killed as a result of another person’s negligence. Spouses, siblings, children, parents, grandchildren, and grandparents are all entitled to recover damages in these cases.
Calculating the amount of those damages is difficult. It requires placing a dollar amount on the emotional bond between family members, where each case and relationship is unique.
However, the Courts have developed a loose system for awarding those damages. As we will see, the Courts have attempted to maintain consistency in the amounts awarded for the death of a child, parent, or spouse, though the range still varies.
How Are Damages Calculated for Loss of Care, Companionship, Guidance?
Arguably, the most difficult compensation to assess is compensation for the loss of care, companionship, and guidance. Each case varies according to the family members involved, the depth of their relationship, and the impact on the specifics of their life.
Therefore, in order to calculate the amounts awarded to different family members, judges rely on awards made in other cases. They do this in order to make the amount of compensation relatively predictable.
This not only provides equitable compensation to family members, but it also makes it easier for litigants to resolve Family Law Act claims without the need for a full trial, which carries both emotional and financial expenses.
How Much Compensation Are Family Members Entitled To?
The amount of compensation is fairly predictable as a result of the system by which judges award compensation. The amounts differ according to the family member making the claim (i.e. sibling, parent, grandparent, etc.) rather than the particular circumstances surrounding the case.
Compensation for Death of a Child
Two cases provide insight into the higher range of compensation awarded in cases involving the death of a child.
To v. Toronto Board of Education involved a 14-year-old boy who died at school while using gym equipment. The trial Jury awarded the parents $100,000 each and $50,000 for his younger sister. The defendant appealed and the Court of Appeal upheld the reward for the parents, though they cut the sister’s award in half to $25,000.
Nine years later, in Fiddler v. Chiavetti, a young girl died in a motor vehicle accident and the jury awarded her mother $200,000, essentially doubling that of To, which was previously the highest amount awarded for loss of care, companionship, and guidance in cases involving the death of a child.
The defendant appealed the decision and the Court of Appeal looked to their prior decision in the To case. They agreed that $100,000 was considered the high end of the range for loss of care, companionship, and guidance and that $200,000 was outside the range. However, they took into account inflation in their decision to adjust the award to $125,000.
Compensation for Death of Spouse and Parents
Five Court decisions involving the death of spouse and parents demonstrate the compensation that can be expected in these cases.
Isildar v. Rideau Diving Supply (2008) involved the death of a husband and father. The wife of the victim was financially dependent on her husband as well as dependent for companionship. He was her only family in Canada and her only source of income, even after returning to her home country and attempting to work. In terms of companionship, she testified that she had not become involved in another conjugal relationship since the loss of her husband and she had no intention to remarry. She received $75,000 for loss of care, guidance, and companionship and her son received $50,000.
In Madonia v. Steven (2008) the husband, children, and grandchildren of a 78-year-old wife, mother, and grandmother made a medical malpractice claim. The husband, who was dependent on his wife for managing the necessities of life, was awarded $50,000. The two children, who were both adopted and enjoyed a close relationship with their adoptive mother, were both awarded $20,000 each. A grandchild who was particularly close with his grandmother received $12,500 and the other, who spent less time with their grandmother, was awarded $7,500.
Johnson v. Milton (2006) awarded the wife of a deceased husband $50,000 after considering their close relationship. Although the youngest child, who was 3 years old at the time of his father’s death, was awarded $20,000, the 13-year-old son was awarded only $5,000. Part of his compensation was determined by the fact that he did not testify and there was very little evidence presented regarding the impact of his father’s death on his life.
In 2007, a father and ex-husband died in a motor vehicle accident. In Wright v. Hannon, the ex-wife of the deceased was awarded $7,500, although the couple was separated for almost 4 years and did not have a close relationship. The daughters of the deceased were each awarded $50,000 as they were both found to have a close relationship with their father.
The Hechavarria v. Reale case (2000), demonstrated higher ranges for the loss of a spouse and parent as well as provided some insight into the amounts awarded to siblings. In this case, the husband of the deceased was awarded $85,000 after his wife’s death witnesses testified regarding the significant negative impact the death had on his emotional wellbeing. The children, too, were given higher-end awards of $30,000 each. The sisters of the deceased were also given compensation in the amount of $12,500 each.
Mental Distress Damages
Moore v. 7595611 Canada Corp. was a 2021 case involving the death of Alisha Lamers, who died in a fire in her basement rental apartment. Her mother and father brought a wrongful death lawsuit against their daughter’s former landlord and his company.
The jury awarded Alisha’s parents $250,000 each for loss of care, guidance, and companionship. They were also awarded $174,800 in future care costs for the father, $151, 200 in future care costs for the father, and $250,000 in mental distress damages for each parent.
The decision was appealed. The appellants argued against the damages awarded for mental distress as well as the amount awarded for loss of care, guidance, and companionship in accordance with the high end set out in the To case.
The Court of Appeal upheld the decision. In addition to this setting the mark for the highest amount awarded for loss of care, guidance, and companionship in a loss of child case, it also set a new high end for mental distress damages in wrongful death cases.
Have a Family Law Claim?
It’s difficult to determine a dollar amount that captures the emotional bond between family members. In order to overcome this issue and maintain consistency, the Courts attempt to base awards on the results of previous cases.
However, as we can see, not all awards are consistent. The nature of your relationship to a family member and the impact of their injury or death on your life cannot be so easily quantified, and we can help you explain how important they were to your livelihood and wellbeing. Contact us if you’ve had a family member who was injured or passed away in an accident that was someone else’s fault.