What is a Dependency Loss Claim?
The most classic example of a dependency loss claim is when someone is injured or killed and their spouse or children no longer have the benefit of their income or housework. More generally, a dependency loss claim is brought by a third party for the indirect loss they suffer by reason of an injury to a person who was supporting them financially or otherwise.
Can you Advance a Claim Only When a Parent or Spouse Dies, or When a Child Dies Too?
Nothing can prepare you to deal with the death of a loved one in the context of a serious car accident or medical malpractice. These claims can be gut wrenching even for the lawyers involved, and none more so than when kids lose their parents, or where parents lose their kids.
Who Can Advance a Dependency Loss Claim?
When kids lose a parent due to negligence the kids will almost always have a dependency loss, and any surviving spouse will as well. This is the case if the deceased parent was a bread-winner, but also if the parent didn’t work but cared for the children in other capacities. Something we are seeing more of however is cases where children tragically die and we are able to advance a dependency loss for the parents. Depending on the facts we are able to advance these claims whether the children are minors still in school or adults with careers.
People are living longer these days, and more and more people are unable to retire at a “normal” age, or at all. Many people know that they will rely upon their adult children either financially or by moving in with them, or simply by having the kids clean their house and do the lawn and shovel the driveway and get the groceries. These trends are becoming very common in Canada, but have also long been common in other cultures around the world and so we frequently see these claim dynamics when representing first and second generation immigrant families.
What Sorts of Things Can a Client Claim For – Damages
When a new client contacts us after a fatality they are always (and quite understandably) focused on the emotional and physical loss of their loved one. Section 61(2)(e) of the Family Law Act allows for their pain and suffering claim for “Loss of Care, Guidance, and Companionship”. These awards are challenging to discuss with claimants given how offensively low they are in Canada and unfortunately many clients will arrive at your door with a false impression of a claim worth millions of dollars for “wrongful death” based upon US television.
For practitioners it is important to remember that while motor vehicle accident claims are unique in Ontario in that they have a deductible for pain and suffering for both individuals and s.61 FLA claimants, that 267.5(8.1) of the Insurance Act specifies that the deductible does not apply in the case of fatalities; this is an important point given that the deductible for FLA claims is now an astonishing $20,751.76.
How Do You Build a Large Dependency Loss Claim After a Fatality?
There have been some positive results for plaintiffs in the past several years in terms of the high water mark for FLA claimants, but it remains the case that it is the dependency loss portion of a claim that will push the value of a claim upwards. Building and quantifying a dependency loss claim requires a careful investigation of the deceased’s situation and what would have happened “but for” their untimely death. We do not treat their situation as crystallized, and we marshall all the evidence possible as to how their career would have evolved and their income increased over time.
Lay witnesses can often provide helpful will-say statements about the deceased’s character so as to bolster the argument that they would have provided for the FLA claimants financially. This is particularly important if that wasn’t yet the case such as in the case of a child who has died and you are arguing they would have provided for their parents in their old age. In addition to characterological and laywitness evidence, we usually combine such evidence with vocational evidence about the career potential and earnings trajectory of the deceased. We then often rely upon an economist and/or accountant to provide data on the percentage of dependency loss – a person who earns $100,000 does not spend the entire $100,000 on their family (even though it sure feels that way!). There are factors which can help us drive the dependency loss percentage upwards, and there are also factors which can drive an award downwards, particularly remarriage of an adult surviving spouse.
The long and short is that fatality claims are challenging to manage on the client front given the emotions at play, and take a significant amount of time and evidence to build carefully on the damages front. It is important to consult with a personal injury lawyer familiar with advancing these claims early on in the process.
About the Author
Warren WhiteKnight is a Lawyer and Partner at Bergeron Clifford LLP. He is based in the firm’s Kingston office but travels throughout Eastern Ontario each week as clients’ needs require. He holds a Certified Civil Litigation Specialist designation by Law Society of Ontario.
Warren is a Queen’s Law graduate where he achieved top 10% standing all three years, and received numerous course prizes and scholarships. He has been the Past President of the Frontenac Law Association.
Warren regularly represents his clients in court and tribunal proceedings and has an excellent track record of achieving results both in court and in out of court settlements.
Related Video:
The role of family members in an injury claim – Ask an Injury Lawyer
