Loss Of Guidance, Care And Companionship: The Injuries Of 'Uninjured' Family Members

• Published date: 16 September 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Gluckstein Personal Injury Lawyers
• Author: Mr Fatema Lotia

Suing in tort typically focuses on an injured individual, the pain they have suffered, and the impact of the injury on their life. However in many cases, the injured individual is not the only person negatively impacted. What happens to the child of a parent who was driving their car and got into a serious accident?

The Right to Sue

Under section 61 of the Family Law Act ("FLA"), 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, certain "dependants" have a right to sue in tort. A dependant is someone who is supported or sustained by someone else, as family members often are by one another. Legally, dependants can include a spouse, children, grandchildren, parents, grandparents and siblings. That means those family members can sue someone at fault for the injury or death of their loved ones.

The damages they can claim may include 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. Two questions that come out of this are: 1) what is loss of guidance, care and companionship?; and 2) what might someone reasonably expect to receive for that kind of loss?

Loss of Guidance, Care and Companionship

The Ontario Court of Appeal has defined these three words separately.¹ Companionship is the deprivation of the society, comfort, and protection which might reasonably be expected had the individual not been injured/passed away. Care is more basic needs such as feeding, clothing, cleaning, transporting, helping and protecting another person. Finally, guidance includes things such as education, training, discipline and moral teaching.

While this may seem like a relatively intuitive concept to understand, attempting to quantify it is a much more complex endeavour.

Amount of Damages/Money Awarded

In cases where one has lost a family member or a loved one is seriously injured, it can be very difficult to try and place a number on that loss. Thinking about intangibles like companionship, care and guidance, and converting them into monetary damages, might feel highly subjective. However, Ontario courts have maintained that damages for guidance, care and companionship must be assessed in an objective and unemotional way.²

While tricky to do, there are some relevant factors to consider that may help contextualize...