Fatalities FAQs

What is a fatal accident?
A fatal accident is a death that is caused by the fault of another individual or company.

Who can claim compensation in a fatal accident claim?
Under Ontario’s Family Law Act, R.S.O. 1990, c F.3 section 61 the persons eligible for compensation are the spouse, including common-law spouse, children, grandchildren, parents, grandparents, brothers and sisters of the deceased person. To receive compensation it is not required that you were financially dependant on the deceased in order to make a claim. The estate of the deceased person does not have a right of claim for losses suffered under the Family Law Act.

Can the estate of the deceased person make a fatal accident claim?
Unlike American law, in Canada the estate of the deceased person does not have a right of claim for losses suffered as a result of the fatal accident. However, the estate of the deceased person can make a claim for the deceased’s losses before death, specifically for the pain and suffering endured in between the time when they sustained the injuries in the fatal accident and when they eventually succumbed to these injuries.

What sort of compensation can be claimed in a fatal accident claim?

• Loss of care, guidance and companionship that the deceased person would have provided to their family
• Loss of financial contribution that the person would have made to support their family
• Loss of family work, household services and chores 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, travelling expenses during the deceased’s treatment, and either income allowance or the value of the expenses for the provision of nursing, housekeeping or other services provided to the deceased
• Loss of income that family members suffer as a result of the death

Watch these videos to learn more about understanding fatal accident claims:

When must a fatal accident claim be filed?
For a fatal accident claim, the ‘statute of limitation’ or maximum allowable time in which a claim must be filed with the court is generally within 2 years of the loss. To know your rights and ensure that you meet this deadline, contact a qualified and experienced fatal accident lawyer.

What is a ‘loss of care, guidance and companionship’?
This is a claim that can be made under Ontario’s Family Law Act that allows for certain family members of a deceased person to claim compensation for losses they may have suffered as a result of losing a loved one in a fatal accident. It requires more proof than just the existence of a relationship; there needs to be an actual loss of care, guidance and companionship as defined by the courts:

Care: This includes feeding, clothing, cleaning, transporting, helping and protecting another person. Care can come from and be given to any member of the family regardless of their age. What care seems to mean is assisting in the creation and strengthening or relationships within a family as time goes on.

Guidance: This includes education, training, discipline, moral teachings, etc. Guidance usually is given from an older family member to a younger family member, but there can be circumstances where the reverse is true.

Companionship: This refers to the important and unique pleasure that is derived from interrelationships between parent and child, brother and sister, spouse and spouse, etc. If the companionship can be shown to have a high degree of pleasure, such as by sharing experiences and celebrating special occasions, then there is seen to be more value to this companionship. For example, parents love to share time and experiences with their children. Parents are an integral part of a child’s life by participating and watching as well as celebrating their advancements through life such as birthdays, graduations, and weddings. Meaningful shared experiences serve as a strong foundation in companionship.

Am I allowed to claim for grief, sorrow, emotional distress or mental anguish due to the death of a family member?
According to Ontario’s Family Law Act there is no compensation given for the grief, sorrow, emotional distress or mental anguish that is derived from the death of a family member. Neither is the death of a family member in itself compensable. Instead, you and your family can sue for non-pecuniary losses such as the loss of care, guidance, and companionship and pecuniary losses such as loss of financial contribution, loss of household services, loss of income, funeral expenses, etc.

How is the compensation for the loss of care, guidance and companionship determined?
Compensation is determined by courts by looking at the individual’s own unique relationship with the deceased in terms of care, guidance and companionship as oppose to having set amounts purely based off of the type of familial relationship that it is. The courts also look to prior cases in order to make an informed decision. There is no specific formula or method to determine what compensation is appropriate for a fatal accident claim, but there are factors that courts in the past have taken into consideration:

(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 the claimants who are children have married, and whether or not spouses who are claimants have remarried; and (5) The joint life expectancy of the claimant and the deceased, or the probably length of time the relationship might be expected to continue.

How much can my family and I expect to receive in compensation for the loss of care, guidance and companionship of our family member?
Due to the uniqueness of everyone’s relationship with another a determination of the amount of compensation expected can only be made once the specifics of your situation are discussed with a fatal accident lawyer. One of Canada’s highest awards came in the case ofTo v. Toronto (City)Board of Education (2001), 55 O.R. (3d) 641 (Ont. C.A.) where the Ontario Court of Appeal awarded $100,000 to each parent of a deceased child. This award for damages is recognized as being at the higher end of the acceptable range. More recently, in Fiddler v. Chiavetti 2010 ONCA 210, [2010] where the mother lost her daughter in a car accident, the Ontario Court of Appeal reduced an award for damages from $200,000 to $125,000 which was also found to be at the upper end of the acceptable range. It is important to note that while in the United States we often hear in the media of immense sums of money being awarded to the family members of a person who died as a result of a fatal accident, the law in Canada is different and therefore the result is that levels of compensation for family members of a deceased person are much more moderate.

What can I do to ensure that I get the most compensation possible for the loss of care, guidance and companionship of my family member?
As the loss of care, guidance and companionship is very subjective, to help the court decide the most appropriate compensation it is beneficial to have ‘evidence’ of your relationship. Your lawyer will ask you to provide family photos and a written impact statement about your shared experiences and time together.

If a family member dies in a motor vehicle accident, what expenses will be covered by my insurance company?
If an insured person dies as a result of a motor vehicle accident the insurance company is required to pay a maximum of $6000 as a funeral benefit to pay for expenses incurred due to the funeral and burial of the deceased person. An optional benefit which increases this amount to $8000 can be purchased through your insurance broker. There are also other benefits available in certain cases, such as visitor expenses and medical and rehabilitation benefits incurred before the deceased person’s passing.

What are visitor expenses, am I entitled to visitor expenses if a family member is in a fatal motor vehicle accident?
If a family member visits the deceased in between the time their loved one being in the car accident and their death, they are entitled to payment of all reasonable and necessary expenses incurred not more than 2 years after the accident. Family members that can claim these expenses are the spouse, including common-law spouse, children, grandchildren, parents, grandparents, brothers and sisters of the insured person. Non-family members may also claim for visiting expenses if they were living with the deceased person at the time of the accident. The two year limitation does not apply if the deceased person suffered catastrophic injuries as a result of the accident.

My family member died in a motor vehicle accident and as a result I could benefit from some grief counselling, who can I look to help pay for this counseling?
In the insured automobile’s policy, any specified driver, spouse or dependant is able to make a claim against the insurance company for medical and rehabilitation benefits to assist them in grief counselling. They are eligible for benefits even if they were not in the accident, but still suffered from psychological or mental injury due to the accident which resulted in the physical injury or death of their spouse, child, grandchild, parent, grandparent, brother, sister, dependant or spouse’s dependant.

If a family members dies in a motor vehicle accident are family members entitled to receive any payments?
If a family member death is caused by a motor vehicle accident then certain family members automatically receive a standard payment as a death benefit. A spouse receives $25,000; each dependant receives $10,000; if the deceased person was not married at the time of the accident but still had dependants then an additional $25,000 is then divided equally amongst the dependants; if the deceased was obligated at the time of the accident to provide financial support to a former spouse under a domestic contract or court order then $10,000 is awarded; if the deceased person was a dependant at the time of the accident, a payment of $10,000 would go to the person whom the deceased was a dependant of. There are also optional benefits available to purchase to increase coverage.

What optional funeral and death benefits are available if a family member is in a fatal motor vehicle accident?
If optional funeral and death benefits are purchased by the deceased, then in the event of a motor vehicle accident resulting in the insured person’s death, their spouse would receive $50,000; each dependant would receive $20,000; if the deceased person was unmarried at the time of their death then each of their dependants get an additional $50,000 divided equally; and funeral benefits are increased to $8,000.

If a family member dies in a fatal accident are family members entitled to compensation for funeral expenses?
Yes, family members are entitled to funeral expenses for the deceased person provided that they are reasonably incurred. Expenses may include the funeral and burial, the headstone, and transportation of the deceased.

If a family member dies in a fatal accident are family members entitled to compensation for ‘loss of family work or housekeeping’?
Yes, a claim can be made for a loss of family work or housekeeping in the event that the deceased used to provide some or all of the unpaid activities related to household tasks such as cooking, cleaning, shopping, washing, yard-work, home maintenance or repairs/renovations and family accounting. This type of loss may also be termed valuable services. A claim for the loss of homemaking can be made for tasks or chores done full-time, part-time and in some instances in ‘spare time’. This type of compensation acknowledges the value that such household tasks and chores can bring and how beneficial they are to a family’s functioning.

If a family member dies in a fatal accident are family members entitled to compensation for a ‘loss of past and future income’ of the deceased person?
The ‘loss of past and future income’ or ‘loss of shared family income’ allows the family of the deceased to claim for the portion of the deceased’s net income (after taxes) that would have gone towards the costs associated with family and homemaking that would have been incurred if not for the death. It includes not only the basic amenities and needs of the family, but the amenities and enjoyment of life are also considered. For a spouse the maximum period of loss in which they can receive financial support is typically what the joint life expectancy would have been if the deceased had survived. The period of financial support could be extended if the spouse had rights to the deceased’s pension or CPP, or the period could be shortened if the living spouse had already filed for divorce at the time of their spouse’s death and was planning a marriage to another. For children this period of loss is at least until they reach the age of majority which is 18 years of age in Ontario, but often this period of loss extends until the child completes their post-secondary education.

If a family member dies in a fatal accident are family members entitled to compensation for their own ‘loss of income’?
Yes, the law has recognized that if the family members of the deceased suffer a loss of income as a result of their loved one dying in a fatal accident they are allowed to make a claim. For example, a person may have had to take an unpaid leave of absence from work, or use sick leave or vacation time claim for a loss of income.

How can I cope with this loss?
Coping with the loss of a loved one can be one of the most difficult things that any of us have to go through in our lives. Particularly in the case of fatal accidents, when the loss is unexpected.

Watch this video to learn about coping with grief after losing a loved one: