When you lose a loved one due to negligence, often you look for answers as well as a measure of justice through the civil justice system. Prior to the legislature enacting the Family Law Act, family members of deceased persons could not advance any claims for damages and losses arising from the death of a family member. Indeed, in some provinces, there remains no right to advance a claim for damages and losses when you lose a loved one, or the types of claims permitted to be advanced are extremely limited. That is because of the long standing principle that the grief over losing a loved one should not itself be compensable at law, because no amount of money can ever compensate a family member whose loved one dies due to negligent causes.
Luckily, in Ontario, the government legislated that certain types of claims for wrongful death can proceed.
In Ontario, the right of family members to advance claims for personal injury arising from the death of a loved one are set out in the Family Law Act: Only spouses, children, grandparents, grandchildren, brothers and sisters are entitled to advance claims for damages and losses. The types of things they can claim for are set out in the Act:
- Loss of financial support;
- Pecuniary losses (such as loss of income/competitive advantage or treatment required as a result of the wrongful death);
- Actual expenses reasonably incurred for the benefit of the person killed;
- Actual funeral expenses reasonably incurred;
- Reasonable travel expenses incurred in visiting the person before death;
- Where as a result of the injury, the family member provided nursing, housekeeping or other services, a reasonable allowance for the loss of income or value of the services; and
- An amount to compensate for the loss of care, guidance and companionship.
Perhaps reflecting the long standing view of the Courts that no amount of money can ever compensate for the loss of a loved one, the Courts have routinely limited the amount that a person can claim for the loss of the relationship. The less “care, guidance and companionship” that relationship was expected to provide, the lower the Courts assess that aspect of the claim. Typically, the Courts will look at:
- The age of the deceased and expected remaining lifespan;
- The age of the claimant and remaining time lost in the relationship with the deceased;
- Frequency of contact;
- Nature of contact; and
- The nature of the relationship.
While spouses may be expected to care, support and be lifelong companions to each other, and parents may be expected to care, support and guide their child, that is not true to the same extent for a parent losing a child, except arguably in certain cultures. Likewise, an adult child who loses their elderly parent will be said to have had almost the full benefit of the care, guidance and companionship one could reasonably expect from a parent-child relationship and thus that aspect of the claim will be assessed at quite a low value. Similarly, a grandchild who only sees their grandparent once a year and never speaks to them on the phone will be deemed to have quite a low value claim unless they can establish that there was some unique aspect of their relationship that should warrant a higher award.
Simply put, spouses and young children who lose parents wills have their damages assessed much higher than adult children losing elderly parents, grandparent or siblings. If you lose your spouse and then remarry or enter another relationship, the value of your claim will be adjusted accordingly.
Unless family members can build a solid foundation to the pecuniary losses claimed, the Courts may not award the amount claimed. This is particularly true when part of the claim includes one for past loss wages or time spent caring for the individual before they were deceased. Keeping receipts and track of time spent is always useful, but often not what one thinks of when dealing with the death or impending death of a loved one.
Pursuing these cases can be extremely difficult and time consuming. Contact Neinstein Personal Injury Lawyers to receive a free case evaluation of your potential wrongful death claim.