Loss of Care, Guidance and Companionship

The legislature has carved out a particular category of compensation directed specifically towards individuals who have lost family members as a result of the fault of a third party. The Family Law Act of Ontario states in section 61 that specified individuals who have lost a family member as a result of the fault of another, are entitled to compensation for “loss of care, guidance and companionship” that they may have received from their lost loved one had the accident not occurred.

These specified individuals include spouses, children, siblings, parents, grandparents and grandchildren. In addition, the family members do not have to be “blood” relations. Relationships defined by psychological and financial bonds, in some situations, may also give rise to section 61 claims.

Let me say from the outset that there is absolutely no amount of monetary compensation that could replace or value the loss of a loved one, especially a child. Nonetheless, courts in Ontario have attempted to provide some guidance to approach the difficult task of quantifying an essentially unquantifiable loss.

To measure “loss of care, guidance and companionship,” a court will consider evidence of the deceased’s relationship with his/her parents/children/siblings (as the case may be) before the accident, evidence of the quality of the family life while the person was alive, and evidence of the impact that the person’s death has had on the family member – including evidence of any psychological or other adjustment difficulties family members have faced. Generally, we present evidence about the nature of the relationship between the deceased and his or her surviving loved one. Regarding a young child, usually little needs to be said. An adult child, sibling or grandparent, on the other hand, sometimes requires more explanation, as these adult relationships vary from family to family.

Family photographs, emails and other types of correspondence, anecdotes about time and activities spent together, the frequency with which they kept in touch, are all relevant considerations. It is important to note, however, that compensation under section 61 of the Family Law Act is not for grief or emotional distress following the loss.

Various courts have offered powerful definitions of “care,” “guidance,” and “companionship.” In respect of the loss of a child, for example, Justice Linden has written in a 1981 case involving the death of a child:

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 not meant to be treated as a trivial loss, for it is not.

“Care” has also been explained by Justice Linden as follows:

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 round, attending at various medical advisors and other events. Care, then, is a concept that can apply, on proper evidence, among all members of a family, regardless of age.

As to “guidance,” Justice Linden wrote:

“…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….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.”

None of these definitions are exhaustive. Care, guidance and companionship each have different meanings for different people. While the law usually favours certainty and precision to definitions, such an approach is unworkable in fatality claims. In the case of compensation under section 61 of the Family Law Act, the courts have been emphatic in their view that the assessment of section 61 losses should be approached from the view that care, guidance and companionship are as unique as families themselves. As Justice Linden wrote in Thornborrow, “This may differ in every family and with each individual in the family. … 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.”

For these reasons, there is no such thing as a “conventional” award for loss of care, guidance and companionship. There is, however, a range of damages available under the case law. The quantum of such damages is beyond the scope of this article.

The high-water mark for compensation of this nature stems from a case called To v. Toronto District School Board, an example of the variability that exists amongst families in Canada. The case concerned a little boy who died in an accident at school. He was the first generation of an immigrant Chinese family, and despite his young age was a “liaison” of sorts between his parents and the English-speaking world. He was the “golden boy” of the family, and was the quintessential older brother to his little sister. In his parents’ culture, sons grow up to care for their parents, and to provide financial support to them. It was expected that the child would eventually adopt that role.

Financial Losses

Section 61 of the Family Law Act says that family members may recover “their pecuniary loss resulting from the injury or death of the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed.” Pecuniary loss means financial loss. Included in this category are:

• Reasonable expenses actually incurred, such as funeral expenses and travel expenses for out-of-town family members.
• Lost Income “” If the surviving family member has had to take an unpaid leave of absence from work (which is often the case) following the tragedy, or has had to use sick leave or vacation credits during this absence, he/she can claim that financial loss from the person(s) responsible for the accident.
• Dependency Losses “” Where the deceased has left behind a spouse and dependent children, the surviving family unit can claim their loss of financial support. Children can claim loss of support for the period up to the completion of their undergraduate university education. A spouse can claim loss of financial support for his/her lifetime.

A Dependency Loss is the familial portion of the after-tax disposable income forgone after death (i.e. the difference between the deceased’s prospective net income, and, the assumed amount of his/ her personal consumption). In a single income family, the courts have accepted a 70% “dependency ratio,” meaning the amount available to support the dependent familial unit is 70% of his/her net income, plus 4% for each dependent child. In a two-earner family, the dependency ratio is 60%.

Usually, calculation of the dependency losses require actuarial involvement, as well as information about the deceased’s likely career track including future increases in his/her income and the value of lost drug/medical/dental benefits, as well as post-retirement income including pension plan and CPP.

Any money payable to minors that exceeds $10,000 will be subject to court approval, and must be paid into court until the minor reaches the age of 18. From time to time, the court may request that the Office of the Children’s Lawyer review and approve any settlement entered into on the child’s behalf.

Motor Vehicle Accidents

Superimposed upon the Family Law Act is the Statutory Accident Benefits Schedule (“SABS”) enacted pursuant to the Insurance Act, which would apply in the case of a death due to car accident. SABS are no-fault insurance benefits. If you own a vehicle, you are entitled to certain no-fault benefits payable by your own insurer. If you do not own a vehicle, then those same no-fault benefits are available through the insurer of the vehicle in which you are a passenger, or, if that scenario does not apply, through the insurer of the vehicle responsible for the accident.

In a fatal accident situation, the SABS provide for a $6,000 funeral benefit. If the funeral costs more than $6,000, then the excess can be claimed in a section 61 action against the driver responsible for the accident.

In addition, the SABS also provide for payment of a death benefit to certain individuals, including but not limited to:

• The surviving spouse, in the amount of $25,000.
• Other surviving dependents, including children, in the amount of $10,000.

In some instances, family members have been paralyzed by grief and require the care of a psychologist and medications. Children may have difficulty returning to their day-to-day activities following the death of a parent, and may require the assistance of a tutor or life skills worker. In these circumstances, funding is available under the SABS’ medical-rehabilitation benefit provisions. The individual’s treating health care provider must confirm that the assistance is required as a result of the accident.

In order to claim benefits under the SABS, the surviving family members must complete an Application for Accident Benefits as well as other forms mandated by the SABS. The auto insurer may request the death certificate, police report, the deceased’s autopsy report and/or the ambulance/ hospital records if applicable.

If the insured person purchased “optional benefits” from the automobile insurer, then the amounts available under the SABS will be higher. An inquiry should always be made if optional benefits were purchased.

To Whom Do the Survivors Make a Claim?

A claim under section 61 of the Family Law Act is usually commenced by placing the at-fault party on written notice. Thereafter, an insurer may be involved which may lead to settlement discussions. Often, the family of the deceased will commence a court action, pleading all allegations of negligence that led to the deceased’s death. With the exception of benefits under the SABS, it is usually under the umbrella of a court action that the family’s claims will be discussed and adjudicated.

Najma M. Rashid is a partner in Howard Yegendorf & Associates and its sister firm, BrazeauSeller LLP. She practices in the areas of personal injury and insurance law. To learn more about Najma and her practice, please visit www.yegendorflawfirm.ca, or www.brazeauseller.com. She can be reached at nrashid@yegendorf.com or 613-237-5000 ext 243.