Ins and Outs of Wrongful Death claims in Ontario
In Ontario, wrongful death claims are called Family Law Act claims. When a fatal accident causes a death and the death was caused by the negligence or intention act of another person, certain family members have the right to seek compensation from the wrongdoer.
In Ontario, section 61 of the Family Law Act, R.S.O. 1990, c F.3 lists the persons who are eligible to seek compensation as a result of a wrongful death. Those persons don’t need to be “financial dependants” of the deceased. The possible claimants are the deceased’s spouse, including common-law spouse, children, grandchildren, parents (including step-parents), grandparents, brothers and sisters.
Persons eligible to seek compensation as a result of a wrongful death can claim for instance the following:
- Compensation for loss of care, guidance and companionship that the deceased person would have provided to their family.
- Loss of income associated with inability to work due to the death or time spent caring for the person.
- Loss of financial contribution that the person would have made to support their family.
- Loss of household services that the person would have done to support their family.
- Funeral and burial expenses.
- Out-of-pocket expenses reasonably incurred for the benefit of the deceased such as traveling expenses during the deceased’s treatment and travel to the funeral.
- Medical expenses such as nursing and housekeeping expenses.
In Ontario (in 2018), Family Law Act claimants must commence a court action within 2 years of the death (and in many cases 2 years from the date of the accident), otherwise, with very little exceptions, the right to sue and seek compensation is forever lost.
To ensure you meet any limitation period applicable to your case, contact one of our Ottawa wrongful death lawyers without delay for a free consultation.
The Family Law Act states as follows (as at October, 2018):
DEPENDANTS’ CLAIM FOR DAMAGES
Right of dependants to sue in tort
(1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.
Damages in case of injury
(2) The damages recoverable in a claim under subsection (1) may include,
(a) actual expenses reasonably incurred for the benefit of the person injured or killed;
(b) actual funeral expenses reasonably incurred;
(c) a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;
(d) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and
(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.
(3) In an action under subsection (1), the right to damages is subject to any apportionment of damages due to contributory fault or neglect of the person who was injured or killed.
The term “loss of care, guidance and companionship” has been interpreted by the Courts and evidence to support the claims is necessary. Our Ottawa injury lawyers can discuss what evidence is needed and assist you in a respectful way in gathering the evidence. A claimant must show through evidence a loss of care, guidance and companionship, specifically lost care services, lost guidance from the loved one who passed away and lost companionship usually accompanied by a close relationship with a loved one.
The Courts assess the value of the lost care, guidance and companionship by considering the evidence that supports the claims. Knowledge of how the Courts have in the past assessed compensation under this heading is important and so as your injury lawyers, we can discuss with you what the Court considers important evidence and guide you in how to gather that evidence. In arriving at an amount of compensation, the Court does not apply a specific formula but rather considers all of the circumstances of each case separately.
Similarly, the Courts will consider evidence supporting other damages such as financial losses and expenses associated with the death.
Wrongful death cases are complex. It is often difficult to think about gathering evidence after the death of a loved one. Every piece of evidence such as photos, texts, emails, birthday cards etc… are reminders of your loved one and necessarily brings with it a lot of emotions. Our Ottawa injury lawyers are sensitive to this and work with you patiently to gather the evidence and discuss your various options as you grieve the death of your loved one. Most cases are settled out of Court where liability is not in question.
Contact us for a free consultation.
Ottawa Injury Lawyers