A Primer on Wrongful Death Law in Ontario

Did you know that Ontario does not have a specific statute that outlines the concept of “wrongful death” in the way that some other jurisdictions in the United States might? However, this does not mean that our legal system lacks a mechanism to address Wrongful deaths caused by negligence or the wrongful acts of others.

Instead of a wrongful death statute, Ontario relies on the common law principles of negligence and the Family Law Act, R.S.O. 1990, c. F.3, to provide a legal framework for wrongful death situations. The Family Law Act allows certain family members – including the surviving spouse to claim non-economic compensation for the loss of guidance, care, and companionship resulting from the death of a family member. Compensation can also include economic compensation for financial losses, such as loss of shared family income or expenses related to the deceased person’s care, funeral, or other related costs.

While the terminology and specific provisions might vary compared to wrongful death statutes in other places, Ontario’s legal system still allows for the pursuit of claims when a person’s death is caused by negligence or a wrongful act. If you have any questions about wrongful death in Ontario, contact our Hamilton wrongful death lawyers today. We specialize in this area of law and can be your best resource for navigating the complexities of these cases within the province’s unique legal landscape.

Wrongful Death and the Ontario Family Law Act

In a wrongful death case in Ontario, family members may seek compensation for both economic and non-economic losses. Here’s an overview of what these losses encompass and why they can be claimed:

Economic Losses:

Economic losses are quantifiable financial losses resulting from the wrongful death. In Ontario, these might include:

• Loss of Personal Income: in Ontario, a surviving spouse might claim a loss of his or her own income in a wrongful death claim if they can demonstrate that the death of their spouse has caused them to suffer a reduction or loss in their own earning capacity. For instance, the surviving spouse might have to reduce work hours or leave their job temporarily to grieve or entirely to care for children or to manage the emotional aftermath of the loss, thereby suffering a loss of their own income. Alternatively, they may have worked in a family business and suffered a loss of income due to the death of the spouse who played a vital role in that business.
  
• Funeral and Burial Expenses: the costs associated with the deceased person’s funeral and burial can be claimed by family members.
  
• Loss of Housekeeping Capacity: a surviving spouse can claim a loss of housekeeping capacity in a wrongful death case in Ontario. This type of claim recognizes the value of the services that the deceased spouse provided around the home, such as cleaning, cooking, childcare, maintenance, and other domestic responsibilities. If the surviving spouse has to take on these duties themselves or hire someone to perform them due to the loss of their partner, they may claim compensation for this loss of housekeeping capacity. The claim might include the actual expenses incurred if the surviving spouse had to hire help, or it might include a reasonable estimation of the value of the services that the deceased spouse provided.
  
• Future Care Costs: future health care costs refer to anticipated medical and related expenses that are likely to incurred by the spouse. Future health care costs can include ongoing medical treatments; the cost of prescription medications; rehabilitation and psychological therapy costs. Calculating these future costs is complex, often requiring medical evidence from professionals who can provide expert opinions on the likely future medical needs of the injured person. Actuarial or economic experts are normally retained by our wrongful death lawyers to estimate the present value of these future costs.

Dependency claims are a type of economic loss claim that can be made by family members who were financially dependent on the deceased person. This dependency can encompass various financial aspects, and the claim is intended to compensate for the loss of financial support that the deceased person would have provided had they not died. These calculations are complex and often involve our wrongful death lawyers working with economists or actuaries.

Here’s a breakdown of the some (but not all) various components of dependency claims:

• Loss of Income: If the deceased was the primary breadwinner, the loss of their income can have a drastic impact on dependents, such as spouses and children. A claim can be made for the amount that the deceased would have contributed to the household over their expected lifetime.
• Loss of Services: Dependents may also claim for the loss of services that the deceased provided. This might include childcare, household chores, maintenance, and other day-to-day tasks that have a financial value.
• Loss of Potential Future Earnings: If the deceased person had a likelihood of earning promotions, raises, or other increases in income, this potential loss might also be considered in a dependency claim.
• Pension and Retirement Benefits: Dependents may also claim for the loss of pension and other retirement benefits that the deceased would have provided.
• Educational Expenses: If the deceased was contributing to or expected to contribute to educational expenses for dependents, this loss can also be claimed.
• Healthcare and Insurance Benefits: The loss of healthcare and insurance benefits provided by the deceased may also be considered.

Proving dependency often requires a detailed examination of the financial relationship between the deceased and the dependents. This can include an analysis of past financial contributions, the dependents’ needs, the deceased’s likely future earnings, and other economic factors. It may involve expert testimony from financial analysts or economists to accurately quantify these losses.

Non-Economic Losses:

Non-economic losses are more subjective and relate to the emotional impact of the wrongful death. In Ontario, these might include:

• Loss of Guidance, Care, and Companionship: Family members, such as spouses, children, or parents, can claim damages for the loss of the unique relationship they had with the deceased. This recognizes the emotional impact and loss of companionship, guidance, and care that results from the death.

These claims are allowed under Ontario’s Family Law Act, R.S.O. 1990, c. F.3, which recognizes the profound impact that a wrongful death can have on a family, not only financially but also emotionally. It acknowledges that a person’s death due to negligence or a wrongful act causes more than just economic hardship; it also affects the relationships, emotional well-being, and overall life of the surviving family members.

The compensation awarded for these losses is intended to provide some measure of redress for the harm suffered and help the family members cope with the significant changes that result from the loss of their loved one. It’s important to note that pursuing these claims usually requires the expertise of a legal professional well-versed in Ontario’s specific legal framework, as these cases can be complex and require a clear understanding of the applicable laws and regulations.

What is the Range of Compensation for a Surviving Spouse in a Wrongful Death Case?

Damage awards for surviving spouses have yielded damages in the range of $20,000 to $390,000 ($36,627.63 to $467,760.74 in 2023 dollars). The decisions are very fact specific in determining damages and quantum – making it very difficult to give a proper “general” range. The following are case examples – increased for inflation to 2023 dollars using the Bank of Canada’s inflation calculator.

​ Pittman Estate v. Bain is an often cited case from 1984 which dealt with wrongful death damages for a spouse. This was a medical malpractice claim. The deceased died of HIV-related causes and a few months later his wife was advised that she was HIV-positive.

In assessing the claims the Court found that the husband’s life might have been extended another 2 years but for the acts of the defendants. He awarded the 55 year old wife $20,000 ($36,627.63 in 2023 dollars). Note that this case dealt with a situation where the deceased was ill and would have otherwise likely died within two years, making the amount of FLA damages likely considerably lower than it would be in your client’s case.

This case was important because it provided much needed guidance for determining the quantum of damages to be awarded for the loss of care, guidance and companionship and established that a number of factors have been taken into consideration by the courts including:

1) The age, mental and physical condition of the claimant.

2) Whether the deceased lived with the claimants and if not, the frequency of visits.

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

4) Whether or not the claimant is emotionally self-sufficient, whether or not claimants who are children have married, and whether or not spouses who are claimants have remarried.

5) The joint life expectancy of the claimant and the deceased or the probable length of time the relationship might be expected to continue.

Another wrongful death case dealing with spousal compensation is ​a 1993 case of Riggs v. Toronto Hospital. In this case, a 71-year-old woman died after being negligently injected with a lethal substance in the defendant hospital. The husband was 77 years old and very dependant upon his wife who was six years younger and in significantly better health. The deceased was the “matriarch” of the family who organized the family gatherings as well as looking after her husband. She did the cooking, the housekeeping and was the family bookkeeper. She also did the driving. The deceased and her husband were constant companions. The Court awarded the husband $50,000 ($91,784.04 in 2023 dollars) in damages.

In Madonia v. Stevens – the family of a deceased who was unnecessarily prescribed blood thinner which caused gastrointestinal bleeding wrongful death case. The husband plaintiff was awarded $50,000 ($68,898.68 in 2023 dollars) in wrongful death compensation. Other awards were made to the deceased’s two adult children ($20,000 each) and three grandchildren ($7,500 for two and $12,500 for another). ​

A more recent case called Prentice (Litigation Guardian of) v. Coovadia involved a lawsuit filed after the death by suicide of a husband in a psychiatric unit. The action was dismissed as no negligence was found. However, the Court still assessed the plaintiff wife’s damages at $32,500 ($46,547.62 in 2023 dollars) to include five years of child support and extraordinary expenses. No non-pecuniary loss of care and companionship amount was assessed based on a finding that the spouses were separated and the Court ruled there would have been no reconciliation between the plaintiff and the deceased due to his history of drug abuse, the fact that the marriage was abusive, that she had started divorce proceedings and the fact that she was having an affair.

​ Wilson v. Beck was a 2011 case in which the deceased died due to infective endocarditis. His surviving wife, children, brother and parents all made claims under the Family Law Act. The plaintiff described her and her husband as “soulmates”, however the court took the wife’s re-marriage into account in assessing the award. The plaintiff wife was awarded $85,000 ($110,968.28 in 2023 dollars) in non-pecuniary damages.

In ​ Saisho v. Loblaw Cos. was a 2014 case where the wife was awarded $55,000 ($68,706.07 in 2023 dollars) in non-pecuniary damages following her husband’s serious injury and subsequent death. In ​ Saisho, the husband was seriously injured when a shopping cart collided with him at a grocery store. The couple was married for 41 years and the wife helped her husband run a food store before and after his accident.

Another case respecting wrongful death compensation awarded to a surviving spouse is ​ Robinson Estate v. Hogg. In that case, the husband was killed as a result of first degree murder. The wife sued for wrongful death. The murder ended the plaintiff’s 40-year marriage with the victim. The marriage was described as close and loving (see para. 7). She was awarded $75,000.00 in general FLA damages ($110,037.52 in 2023 dollars).

Wrongful death compensation was awarded to a husband following the death of his wife in ​ Newman Estate v. Swales. This was a malpractice case. The husband was entitled to $45,000 ($70,733.67 in 2023 dollars) for non-pecuniary loss under the FLA in relation to the loss of his wife’s care and companionship.

In the 2000 case of Hechavarria v. Reale, the husband was awarded wrongful death compensation in amount of $85,000 ($140,677.25 in 2023 dollars). Facts cited as reason for the high quantum of damages with the deceased was an “outstanding homemaker”; she and her husband had a “very loving relationship.” Winsome Hechavarria was a caring, loving and supporting mother. While Karl Hechavarria provided the direction and, when necessary, the discipline in the family, Winsome Hechavarria provided the emotional bond among the family members. She was, as a number of witnesses put it, “the glue” that held the family together.

A case thwherwhereee spousal relationship was not quite as overwhelmingly positive was​ Rupert v. Toth. In that case, the deceased husband died as a result of the negligence of surgeons and other health care professionals. The spouses had been together for a long period of time but had undergone challenges, such as a lengthy separation due to the alcoholism and other problems of the deceased. The wife, Lorraine Rupert’s loss of care, guidance and companionship resulting from Pat Rupert’s death was assessed at $70,000 ($115,851.85 in 2023 dollars). That they were mutual supports and close companions were facts cited as important to the damages award.

​ In a 1987 case called Smith Estate v. Schmid, the assessment of wrongful death compensation arose on the death of a 57-year-old woman. She was survived by her 57-year-old husband, who was a successful lawyer, and their two married daughters aged 24 and 28. The family was closely knit with a strong affection and companionship. Approximately one year after his wife’s death, the widower found frequent companionship with a lady friend. The woman was a shareholder, director and officer of the company that managed the affairs of the husband’s law practice. The husband was awarded $25,000 ($57,584.68 in 2023 dollars) for loss of care and companionship.

In ​the 2017 case of Robins v. Wagar, the wife of the plaintiff was killed in a motor vehicle accident. The defendant was uninsured, unlicensed and impaired by alcohol. The defendant was criminally convicted as a result of the accident. The plaintiff was legally blind and deaf in one ear, and relied on his spouse as a caregiver. The defendant was sued and did not defend and was noted in default. The trial proceeded as an assessment of wrongful death compensation. The plaintiff was granted judgment in the amount of $390,000 ($467,760.74 in 2023 dollars). The plaintiff was entitled to damages for personal care assistance, home maintenance assistance and transportation to replace the assistance formerly received from his spouse. The value of services was estimated at the sum of $130,681 per year. The plaintiff was also entitled to damages for loss of guidance, care and companionship.

In ​ the case of Tahir v. Mitoff a husband, age 58, suffered damages as a result of pain, suffering, and the death of his wife, age 47, as a result of alleged medical negligence. His wife was taken to hospital with severe abdominal pain, nausea, and vomiting, was in dire medical shape and close to death, but it was established that she suffered a period of pain during the period of alleged negligence leading up to her death seven days after being admitted to hospital. The plaintiff and his wife had been married for 26 years at the time of her death. A few years prior to her death they had been involved in a domestic incident, with the plaintiff physically assaulting his wife. While they separated, they did not divorce. While there was a paucity of evidence of the activities that the plaintiff and his wife enjoyed together in life, it was accepted that the plaintiff loved his wife and mourned her loss. Wilson (D.A.) J. dismissed the plaintiff’s claim, but provisionally assessed the plaintiff’s damages for loss of care, guidance, and companionship in the amount of $50,000 ($57,500.00 in 2023 dollars).

In ​ Campeau v. Ontario the plaintiff wife suffered damages as a result of the death of her husband in a mining accident. The deceased was attempting to replace a motor on a piece of equipment when it “exploded”, sending metal fragments at a high velocity into him, causing severe injuries to his legs. The deceased suffered significant and perhaps excruciating pain. He was working 2000 feet below the surface, and while his co-workers got him to the surface for medical treatment, he died approximately 90 minutes after the accident. There was little doubt that the death had a significant and long-lasting impact on plaintiff and the couple’s children. They were a closely knit family and the deceased was an active and involved father and husband. Gordon (R.D.) J. assessed the plaintiff’s damages for loss of care, guidance, and companionship in the amount of $100,000 ($111,475.41 in 2023 dollars), as well as $415,776 for loss of the deceased’s future income, and $511,196 for loss of the value of deceased’s past and future household services.

As you can tell, assessing the range of compensation in a wrongful death case is difficult due to the varied circumstances surrounding each situation. Every case is based on a distinct set of facts, encompassing various factors such as the relationship between the deceased and the claimant, the degree of negligence or wrongdoing involved, the earnings of the deceased, medical expenses, funeral costs, and the overall impact on the family’s emotional well-being.

Have you Lost a Loved one in a Wrongful Death Accident?

Wrongful Death claims are unique claims that must be handled by a lawyer with experience and specialization in fatality law. Since 2003, Matt Lalande has represented hundreds of wrongful claimants who have lost loved ones unexpectedly due to the negligence and carelessness of others.

If your loved one has been taken from you – call us today. Our goal as wrongful death lawyers is to not only obtain compensation on your behalf for your pain and loss, but also to help financially protect your children and family. We encourage all wrongful death inquiries, and we are more than happy to discuss your legal options thoroughly. Our consultations are free of charge, free of obligation, and completely confidential. Our lawyers are flexible and can arrange a consultation at a time that is convenient to you and your family—and we are happy to answer any questions you have.

To schedule your free consultation with our Hamilton wrongful death lawyers, call us toll-free, no matter where you are in Ontario at 1-888-LALANDE or local throughout Southern Ontario area at 905-333-8888. Alternatively, you can chat with our live operator 24/7 or send an email through our website and we will be happy to get right back to you. 

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