C.A. Says $125,000 is Maximum Award for “Loss of Care, Guidance and Companionship”

In Fiddler v. Chiavetti, the Court of Appeal has held that the current maximum award for the loss of care, guidance and companionship under s. 61 of the Family Law Act, is $125,000. That amount represents the $100,000 award approved by the Court of Appeal in 2001 in To v. Toronto Board of Education and then adjusted for inflation.

At trial, the jury in this case had awarded damages of $200,000 for loss of care, guidance and companionship to the mother of a woman who had been killed in a car accident. The Court of Appeal ruled that that award was “grossly excessive” and reduced it to the maximum of $125,000.

The Court noted that although the trial judge was not obliged to give guidance to the jury as to the “upper limit” of an award for the loss of care, guidance and companionship, it might have been preferable, in this case, that she do so.

The defendants in the case had also challenged various other aspects of the trial, principally the judge’s charge in light of statements made by counsel for the plaintiffs, which statements the defendants characterized as “inflammatory”. However, apart from the damages reduction mentioned above, the Court of Appeal did not accept any of the other defence arguments. Although they agreed that a number of the submissions made at trial by counsel for the plaintiffs had been inappropriate, they were satisfied that the trial judge had adequately dealt with those issues in her charge.

The defendants’ final ground of appeal was the failure of the plaintiffs to call actuarial evidence at trial, to prove the loss of income of the mother. They argued that “her failure to provide expert evidence as to the necessary aspect of a future loss of income claim including contingencies such as working life expectancy or her ability to work in the future” meant that there was no foundation for the damages awarded by the jury for loss of income.

The Court of Appeal disagreed. It said that “[t]here is no rule governing when actuarial evidence is required to establish a loss of income claim” and that “Although it is customary that expert evidence is called in this regard, I can find no reason to conclude that it is a legal requirement to do so”.

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