Canada: Loss Of Consortium Claims: Understanding The Impact On Relationships

Introduction

Fatal or personal injuries have a profound and life-altering impact on the loved ones of the injured. One significant impact is the loss of consortium, a Latin term referring to a sense of "partnership" and "association." This article delves into the pursuit of compensation for the devastating effects of personal or fatal injuries on personal relationships.

How Severe Injuries Impact Relationships Between Spouses

While a fatal injury has very clear impact on a relationship, the toll taken by serious personal injuries on a relationship can be less obvious. After a partner sustains a traumatic brain injury, for example, many couples find that their relationship changes dramatically. Depending on the severity of the brain injury, survivors can experience severe and long-term changes to their personality, behaviours, and ability to communicate. These shifts can be extremely challenging for partners. For example, in the 2005 Ontario Superior Court decision, Hornick v. Kochinsky, a husband and wife separated following a collision which left the husband brain injured with accompanying changes to his personality. The Court viewed the couple's decision to separate as a reflection of the permanency of the loss sustained within the relationship as a result of the collision and his injuries.

Severe injuries that lead to drastic physical impairments can also lead to dramatic shifts in the dynamics of a relationship when one partner begins to take on more of a caregiver role. This change in dynamic can put a strain on the relationship. In the decision, Branch v. Martini ¹, the plaintiff was severely injured in a car accident and due to his extensive injuries, his wife was required to assume a number of duties in the home that were previously shared with her partner. His wife became responsible for all the housekeeping and financial responsibilities of their family which put a significant strain on their marriage.

The History of Loss of Consortium Claims

The pursuit of damages for loss of consortium has evolved significantly. An action for loss of consortium was initially established at common law on the notion that in a traditional husband and wife relationship, the wife brought to the relationship "servitium" or "service". The right was originally based on the husband's position as a master of the household although gradually the element of consortium was stressed more than that of servitium. This action for loss of consortium was only available to a husband² as it was based on the antiquated theory that it was the husband's interests that were damaged as a result of the wife's injuries. As such, instead of the injured party bringing a direct claim for lost housekeeping abilities, a claim was made by the injured wife's husband for loss of consortium or servitium as her failure to provide her housekeeping services was to his detriment.

In 1978, the Family Law Reform Act abolished the husband's action for loss of consortium in Ontario to be replaced with the right to claim a loss of guidance, care, and companionship. This right was extended to spouses, children, grandchildren, parents, grandparents, and siblings of the injured or killed individual.,

Loss of Guidance, Care, and Companionship

Section 61(2)(e) of the Family Law Act, the successor of the Family Law Reform Act, preserves the right of dependants of parties who suffer fatal or non-fatal injuries by the negligence of another to recover damages for the purpose of compensating their loss of guidance, care, and companionship that they might reasonably have expected to receive from the person but for their death or injury.

The creation of this head of damage initially raised the question of whether the loss of guidance, care, and companionship provided for the recovery of pecuniary and/or non-pecuniary losses. Pecuniary losses are those that are measurable and quantifiable (ex. Loss of income), as opposed to non-pecuniary losses which cannot be measured (ex. Pain and suffering). The 1982 decision of the Ontario Court of Appeal in Mason v Peters confirmed that the loss of guidance, care, and companionship is intended to compensate non-pecuniary losses. In this case, the trial judge was tasked with assessing the loss of care, guidance, and companionship of a mother whose 11-year-old child was killed. In determining the issue on appeal of whether this assessment was to include non-pecuniary losses, Robins J.A. stated:

"The right of action established by the Act evidences the Legislature's intention to accord greater recognition to the interest in family relations and provide greater protection against wrongful disturbance or destruction of that advantageous relationship. Consistent with that intent, s. 60(2) is aimed at repairing certain losses which may not fall within the pecuniary loss category and can properly be awarded only on a non-pecuniary basis. Guidance, care and companionship cannot ordinarily be equated in dollar value; the deprivation of these important elements of a family relationship is not generally capable of computation on a strictly monetary basis; and while it cannot be said that they can never constitute economic benefits, the connection can seldom be traced from one to the other. Guidance, care and companionship, including as they do imponderable elements of loss, are essentially non-pecuniary in character. That provision, in my view, was expressly designed to accommodate non-pecuniary awards for family losses of this nature."

How to Claim Loss of Care, Guidance, and Companionship:

In claiming that you have experienced a loss of guidance, care, and companionship as a result of the serious or fatal injury of a loved one, Ontario courts have determined that each case must be assessed both objectively and without emotion, and in light of the particular relationship involved. Despite this context-based approach, existing caselaw sheds light on how each term has been previously defined:

• Guidance includes education, training, discipline, and moral teaching.
• Care includes the feeding, clothing, cleaning, transporting, helping and protecting another person.
• Companionship includes the deprivation of the society, comfort and protection which might reasonably be expected had the person lived or not been injured, and the loss of the rewards of association which flow from the familial relationship.

Claims for a loss of guidance, care, and companionship represent a vital aspect of seeking justice for the collateral damage inflicted by personal or fatal injuries. Experienced legal counsel is crucial for navigating the context-based analysis undertaken by the courts in assessing such a claim. If a loved one has suffered severe or fatal injuries, seeking a free consultation from our office can provide the necessary guidance and support.

Footnotes

1. 1998 CarswellOnt 2439, [1998] O.J. No. 2474, 35 M.V.R. (3d) 157, 62 O.T.C. 161, 80 A.C.W.S. (3d) 467

2. Baker v Bolton (1808) 1 Camp 493

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.