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Brian Goldfinger on Fatality Claims in Car Accidents (Ontario)

Some of the most difficult, and most emotional cases for clients and personal injury lawyers to handle are car crashes which result in the death of a loved one.

How does one put a price on a human life?

No amount of money will ever be enough to fill the void of the untimely death of a family member.

One of the saddest things we at Goldfinger Injury Lawyers hear from our clients is that they never got a chance to say goodbye to the deceased.

When a family member is terminally ill, at least we have a chance to say our goodbyes and come to terms with their illness. There is no surprise in their passing.linkedin-2-300x300

But when a fatal car crash happens, we never had a chance to share memories of the good times or say a proper goodbye. There is a huge element of shock and trauma which goes along with the news of a fatality case as a result of a car crash because it was so unexpected and it should not have been their time to go. The departed were simply in the wrong place at the wrong time. The negligence of an at fault driver has taken their last breath of life and caused a ripple effect of consequences and sorrow for their family and loved ones.

In these cases, it’s important (but very difficult and near impossible) to disassociate dollars from death.

What do I mean by that?

Ontario’s civil justice system was not made to compensate a family for the death of a loved one. No amount of money will ever make the Plaintiffs whole again. This is why lawyers mention the concept of disassociating dollars from the death.

In some cases, we can put a more meaningful quantification on the loss of a loved one. Where the departed was an income earner, the Court can quantify the past and future income loss. In the example of a 50 year old teacher who would have worked until the age of 65, who earning $60,000/year, a Court can quantify the past and future income loss for the family unit. In addition to the family’s claim for loss of guidance, care and companionship, they will also have a claim for the lost income, and loss of benefits which the deceased brought to the family unit.

But where there’s no income loss, how does a Court quantify the loss of guidance, care and companionship for a fatality claim under the Family Law Act? It’s a tricky exercise which largely depends on the individual facts of each case. What a Court will do is look back on the case law (judicial precedent) for guidance.  Here are some cases which the Courts lean on when assessing fatality claims for the loss of a parent of adult children:


Citation Notes Damages Assessed
Madonia v Stevens (2008), [2009] WDFL 1556, 2008 CarswellOnt 8256 (Ont Sup Ct J). The deceased mother was 78 years old and died as a result of medical negligence. She had two adult children.

The adult son was very close to his mother. They visited when possible and he spoke with her on the phone every other day. He relied on her for guidance and friendship.


The daughter described her mother as “her best friend.” They visited often and her mother helped her a great deal when she went through cancer treatments.


$20,000 each
Singleton v Leisureworld Inc. (2008), 166 ACWS (3d) 886, 2008 CarswellOnt 2128 (Ont Sup Ct J). The mother was 77 years old at the time of her death in 2007. She had been suffering from Alzheimer’s Disease since 1999. She had been a resident in the nursing home operated by the Defendant for approximately six years.

The family was described as “close” and the children as maintaining a “close and caring relationship” with their mother. The two daughters cared for their mother after she was diagnosed with Alzheimer’s Disease, often in their own homes. The two sons visited their mother in the nursing home a number of times each year.


Justice Hennessy relied on Hechevarria v Reale and Fish v Shainhouse (below) in calculating the value of the FLA claims.

$30,000 each
Wilcox v “Miss Megan” (The), 2007 FC 1004, 2007 CarswellNat 3324 (FC), aff’d 2008 FC 56, 2008 CarswellNat 1193 (FC). The deceased father drowned while at work on a fishing boat.  He had three adult children.  One adult child had a disability and her claim was considered separately. The other two adult children were independent but were close to their father. They spoke often and visited regularly.


$25,000 each
Adair Estate v Hamilton Health Sciences Corp., [2005] WDFL 3358, 2005 CarswellOnt 2180 (Ont Sup Ct J). The mother died after surgery and was successful in her claim for medical negligence. She had five adult children, two of which were FLA plaintiffs. The family was described as “close-knit,” and the mother was described as the family’s “social and moral pilot” (at para 189).


$20,000 each
Fish v Shainhouse, 2005 CarswellOnt 5265 (Available on WL Canada) (Ont Sup Ct J). The father died suddenly of cardiac problems. He had seen doctors several times leading up to his death and was misdiagnosed. The claim again the doctors failed, but the FLA claims were provisionally assessed. The deceased had three adult children, one minor child and four grandchildren, two of whom were eligible for an award under the FLA. The father was very close to his children (except for one, from whom he had been estranged for a couple of years), and was a stay-at-home dad while his wife worked outside of the home. 1) $40,000 to a son who lived far away and saw his father less regularly;


2) $50,000 to his daughter who lived at home while going to university;


3) $25,000 to an estranged son who used to have a very good relationship with his father; and


4) $80,000 to the minor son.


Hechevarria v Reale (2000), 51 OR (3d) 364, 2000 CarswellOnt 4099 (Ont Sup Ct J). The mother was killed in a motor vehicle accident. She had three adult children (ages 32, 27 and 22) who still lived at home and relied upon their mother.  The children were either unemployed or did not work much, they depended on their mother, and they suffered emotional consequences of her death. The family was very close.


$30,000 each
Robb Estate v Canadian Red Cross Society (2000), 1 CCLT (3d) 70, 2000 CarswellOnt 2178 (Ont Sup Ct J), rev’d on other grounds, 152 OAC 60, 2001 CarswellOnt 4159 (Ont CA), leave to appeal to SCC refused, 172 OAC 198, 2002 CarswellOnt 2839. The father developed HIV from a blood transfusion and died.


Daughter: The daughter was 16 when she learned of her father’s infection and 18 when he died. They were very close. When his infection became severe and he went into the hospital, she visited him nearly every day. She quit baseball so she could spend more time with him. Once he lost his sight, hearing and ability to speak, she would climb into bed with him so he could reach out and know she was there with him.


Son: The son moved out of the family home when he was 16. He was 19 when he learned of his father’s infection and 21 when he died. He described his relationship with his father as “fairly close.” He moved back into the family home six months before his father died. He was not as emotionally demonstrative as his sister.

$35,000 each, broken down as follows:


$30,000 each for loss of guidance, care and companionship.


Each was also awarded an additional $5,000 based on McDermott v Ramadanovic Estate ((1988), 27 BCLR (2d) 45 (BC SC)), where a 13 year old was awarded $20,000 for “emotional scars” as a result of witnessing both of her parents’ death in a motor vehicle accident. While this degree of shock was not present in this case, Macdonald J held that the father’s death had a substantial emotional impact on the children.


Stell v Obedkoff, [2000] OTC 742, 2000 CarswellOnt 4085 (Ont Sup Ct J). The mother died of breast cancer after the doctor failed to respond properly to a radiology report. She had a successful claim for medical negligence.  The mother was close to her adult children, aged 28 and 25. The family was described and close-knit, caring and devoted. $20,000 each


Campbell J refers to this award as “the high end of the conventional range of family law awards” (at para 309).


Singh Estate v Bajrangie-Singh (1999), 129 ETR (2d) 302, 1999 CarswellOnt 2230 (Ont Sup Ct J). The deceased mother was shot by her partner. She had three adult children.

Her daughter had lived with her when she first immigrated to Canada. After she moved out, they visited and spoke on the phone often. Her son and her other daughter lived in Trinidad and they spoke every few weeks.  Her daughter in Trinidad came to Ontario to visit the deceased on several occasions and once stayed for a couple of years.


$10,000 for the oldest daughter who lived in Ontario;


$3,000 for each of her other two children who lived in Trinidad.

Lachance v Gosselin Estate, 1994 CarswellOnt 3759 (Available on WL Canada) (Ont Ct J (Gen Div)). The mother died in a car accident. She had six living adult children, who lived throughout Ontario and Quebec. Her two oldest sons lived close to her, helped her with family responsibilities, and had a close relationship with her. Three of the others lived further away. One of her children was disabled, and her claim was assessed separately.


$10,000 for each of the two oldest sons, $2,500 for the three others.
Pittman Estate v Bain, [1994] 112 DLR (4th) 257, 1994 CarswellOnt 928 (Ont Ct J (Gen Div)). The father contracted HIV from a blood transfusion and died. The mother became terminally ill with HIV. The family was very close.


Lang J provides an overview of the factors to consider the amount to award in an FLA claim (at para 971), which include:


1) the age, mental and physical condition of claimant;


2) whether the deceased lived with the claimant, or the frequency of visits;


3) the intimacy and quality of the claimant’s relationship with the deceased;


4) whether the claimant is emotionally self-sufficient, whether the claimants who are children have married, and whether spouse claimants have re-married; and


5) the joint life expectancy of the claimant and the deceased, or probable length of time the relationship would have continued.


There were 4 adult children:


1) Tom, 35, awarded $2000 for deceased father, $4000 for terminally ill mother;


2) Kelly, 32, awarded $2,500 for father, $7,000 for loss of mother’s guidance, care and companionship and $2,500 for loss of her services;


3) Mark, 31, awarded $3500 for father, $7500 for mother; and


4) Kathy, 28, awarded $3,500 for father and $10,000 for mother.


Riggs v Toronto Hospital, 1993 CarswellOnt 2752 (Available on WL Canada) (Ont Ct J (Gen Div)). The 71 year old mother died as a result of medical negligence. She had four adult children. She was described as a confidante of her daughters (aged 38 and 40), and close to her two adult sons (aged 36 and 46).


Grzywacz v Vanderheide, 1992 CarswellOnt 3190 (Available on WL Canada) (Ont Ct J (Gen Div)). The mother died as the result of an MVA. She had lived with her son at one point, caring for his child and providing him with housekeeping services. She immigrated to Canada, and they planned that the son and his family would also emigrate and that they would live together as a family unit.


Maciuk v Maciuk, 1989 CarswellOnt 1618 (Available on WL Canada) (Ont SC). The mother, aged 72, died from injuries sustained in a motor vehicle accident. Two sons claimed damages under the FLA. Osborne J found that her family relied on her for leadership and affection. One son lived near his mother and they saw each other frequently. The other lived in the United States and saw her less frequently, although there were at least annual visits between them.


In coming to an assessment of damages, the court considered:

1) the deceased’s age;


2) that she did not live with the FLA claimants;


3) grief is not compensable;


4) the geographical proximity between where the claimants lived and the deceased; and


5) that the FLA claimants who lived in the USA did not give evidence (at para 15).


$12,500 for the son who lived closer to his mother;

$10,000 for the son who saw her less frequently.

Bodnar Estate v Home Insurance Co, 1987 CarswellOnt 1764 (Available on WL Canada) (Ont SC), varied on other grounds, 1990 CarswellOnt 2476 (Ont CA). The father was killed in an MVA. His oldest son was a self-sufficient young adult. He was close to his father. $15,000
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