Why FLA damage awards may need to evolve
This article examines the complexities surrounding the valuation of non-pecuniary damages under Ontario's Family Law Act for the loss of an infant, advocating for an evolution towards a future-focused approach that acknowledges the profound and irreplaceable loss experienced by families in such tragic cases.
When a person is injured or dies as a result of negligence, section 61 of Ontario’s Family Law Act, R.S.O. 1990, c.F.3 (FLA) permits specified family members to pursue a civil lawsuit for damages. This article will focus on FLA damages in the context of death. When someone passes away due to negligence, certain family members can claim for pecuniary losses, such as a loss of income and funeral expenses. These family members can also recover non-pecuniary damages resulting from the death of their loved one, which is defined as compensation for the loss of guidance, care, and companionship they might reasonably have been expected to receive from their loved one had they not died.
Courts have held that there must be an actual loss of guidance, care and companionship for a claimant to succeed.1 “Guidance” has been defined to include things such as education, training, discipline and moral teaching; “care” has been defined to include things such as feeding, clothing, cleaning, transporting and protection; and “companionship” has been defined to include the joy of sharing experiences, and the rewards of association that flow from the family relationship.2
Assessing the value of a non-pecuniary FLA claim
The value of a claim for loss of guidance, care and companionship is determined on a case-by-case basis, taking into account the specific family circumstances in each case.3 Courts consider the nature and quality of the relationship between the deceased and their family member(s), which has included factors such as the closeness of the relationship, the actual giving of advice and companionship, the amount of time spent together, whether they lived in the same place, and cultural traditions.4
There is no statutory cap for non-pecuniary damages for the loss of guidance, care and companionship and courts have confirmed that the cap for non-pecuniary general damages established by the Supreme Court of Canada in Andrews v. Grand & Toy Albert Ltd. does not apply.5 However, judges have addressed what they consider to be the upper limits for loss of guidance, care and companionship awards.
In Zarei v. Iran, the plaintiffs brought claims following the death of their family members who were passengers on an airplane that was shot down.6 In assessing damages, Justice Belobaba held that, based on the victim impact statements and evidence presented at trial, it was fair and reasonable to adjust the "high end" suggested for loss of care, guidance and companionship damages in judge-alone trials and award each of the plaintiffs $200,000.7
In Moore v. 7595611 Canada Corp., a jury awarded the plaintiffs $250,000 each for the loss of guidance, care and companionship of their 24-year-old daughter, Alisha, who died following an apartment fire. The Ontario Court of Appeal upheld the jury’s FLA damages awards noting that the evidence established that Alisha provided both of her parents with love, affection, and emotional support; saw them both almost every day; and as an adult she had started to provide her parents with more support than she received from them.8
FLA damages in the context of infant fatalities
This framework leads to a surprising outcome when assessing damages for the loss of an infant. While the death of an infant represents the loss of an entire lifetime of guidance, care, and companionship, courts have generally not awarded maximum FLA damages in these instances.
In Rodrigues v. Purtill, the plaintiffs advanced claims following a motor vehicle accident that resulted in the death of Alexander, who was five months old at the time.9 Justice Hockin noted that the relationship with the child was short, but significant and, notably, “his loss over [their] lifetime is significant.”10 Justice Hockin awarded Alexander’s parents $130,000 each and his brothers $35,000 each for the loss of guidance, care and companionship of Alexander.
In Campeau-Proulx v. Bancroft, the family members of the late Maci, brought claims for the loss of guidance, care and companionship of Maci following her death at two years old.11 Prior to her death Maci suffered from Mowat-Wilson syndrome, a genetic disorder often causing cognitive deficits, such as severe speech impairments and delayed development of motor skills. Based on Maci’s pre-existing health condition, the court concluded that she would not have provide care or guidance to her family and therefore their claims were limited to the loss of her companionship. The court awarded Maci’s mother $60,000 and her brother $15,000 for the loss of Maci’s companionship.
In Adam v. GlaxoSmithKline Inc., the plaintiffs brought a claim against a drug manufacturer following the death of their five-year-old daughter12 Justice Koehnen stated that “the nature and quality of the relationship between a young child and a parent is one of the deepest emotional bonds within human relationships.”13 Justice Koehnen assessed the damages for each parent for the loss of guidance, care and companionship of their daughter at $143,750.
Adopting a future-focused approach
As illustrated by the cases above, the loss of an infant has not attracted the upper limits of FLA damages awarded in adult fatality cases, such as Zarei and Moore. The relatively lower awards in infant fatality cases may stem from the retrospective framework typically used in FLA damage assessments, which focuses heavily on evidence of the established relationship between the deceased and their family members rather than the lost future relationship.
The loss of an infant is unique as there is generally less evidence of a developed relationship. However, the death of an infant may be viewed as the most significant loss given their family members have lost the infant’s entire lifetime of guidance, care, and companionship.
To better address this issue, courts might benefit from adopting a more future-focused approach to the assessment of these losses. For example, in To v. Toronto (City) Board of Education, the family of the late Binh brought claims following his death at 14 years old. Though not an infant, in this case the court did employ more of a future-focused approach by considering cultural factors and the role Binh would have played for his family had he not died, including providing financial and social support for his parents and direct assistance to his sister.14
Emphasizing a future-focused approach to assessing FLA damages would be better suited than a strictly retrospective view. In cases of fatalities, FLA damages are intended to compensate family members for the future they would have shared with their loved one but for the negligence. The loss is the future relationship that will never be realized. Therefore, placing greater weight on the future, rather than on the established past relationships, would be a more accurate assessment of the actual loss suffered.
Given that FLA damages are evaluated on a case-by-case basis, there remains potential for evolving considerations in how these damages are assessed. While no financial compensation will ever make up for the loss of a child, at Neinstein LLP, we are dedicated to advocating for families to secure appropriate compensation for the profound loss of their loved ones.
1 Coffey v. Cyriac, 2020 ONSC 6411 at para 159 [Coffey].
2 Coffey, ibid, at para 159.
3 Coffey, supra note 1 at para 158; To v. Toronto Board of Education, [2001] OJ No 3490 (ONCA) at para 27 [To].
4 Ayoub v. Dreer, 2000 CanLII 50995 (ONSC) at paras 37-41; Panchyshyn v. Hammond, 2020 ONSC 381 at paras 58-73; To, ibid, at para 37; Coffey, supra note 1 at para 158.
5 Fiddler v. Chiavetti, 2010 ONCA 210 at para 76; To, supra note 3; Moore v. 7595611 Canada Corp, 2021 ONCA 459 at para 28 [Moore].
6 Zarei v. Iran, 2021 ONSC 8569 [Zarei].
7 Zarei, ibid at para 26.
8 Moore v. 7595611 Canada Corp, 2021 ONCA 459 at paras 31-33.
9 Rodrigues v. Purtill, 2018 ONSC 3102, aff’d 2019 ONCA 740 [Rodrigues].
10 Rodrigues, ibid at para 105.
11 Campeau-Proulx v. Bancroft, 2023 ONSC 2334.
12 Adam v. GlaxoSmithKline Inc., 2019 ONSC 7066 [Adam].
13 Adam, ibid, at para 125.
14 To, supra note 3 at para 11.
This article was provided by Neinstein LLP
