The Wrongful Death of a Child

What if you had another five minutes of companionship with a child that was lost in a wrongful death accident? What would those five minutes be worth to you? Five thousand, ten thousand, a million dollars, a hundred million? What are the next 35 years without your child worth to you? The reality is that it’s not possible to quantify the death of a loved one.

Children are our hope, our future, our joy. Our own children are most precious to us. They are the figurative, as well as the physical embodiment of our future hopes and dreams. For many, their future health, happiness and success is as important, if not more so, than our own.

For some of us, we go through life and we love our parents dearly. We perhaps love a pet. We ultimately meet and fall in love with our life partner and we think we have experienced the fullest measure of love. But when we have our first child, our eyes are opened and we experience the deepest, most full and boundless, unconditional love, so much so that we did not believe ourselves previously capable of it. A parent’s heart at times seems so full that it is about to burst.

The wrongful death of a child is therefore, for most, the greatest loss that one can sustain, for the void left, at first seems larger than the universe itself. Where the heart once ached from fullness, only an almost intolerable emptiness remains. There is no emotional recovery for most parents, ever. There is nothing but the passage of time to ease the pain.

Wrongful Death Compensation for the Loss of a Child in Ontario

Historically, for family members, the loss of a child is one of the most under-compensated areas of law in Canadian law. Given that it is one of the largest losses that one can sustain in one’s life, this is somewhat perplexing and never really understood.

As wrongful death lawyers, we often evaluate the loss of an arm, fractures to weight bearing joints ect. We calculate the economic loss, the loss of earnings, and also the pain and suffering and loss to be suffered throughout the future life expectancy of the accident victim.

What parent would not trade an arm or leg for the life of his or her child? Does not the parent suffer for the remainder of his or her life expectancy? The phantom child, like the phantom leg, remains forever – yet the compensation for the loss of care, guidance and companionship is often unsatisfactory to the grieving, mom and dad and other family members.

We must then find other ways within the boundaries of the law to expand on damages and compensation to help parents and other family members move on, such as:

• income loss for a parent or parents
• housekeeping services for a parent or parents
• caregiving services for a parent or parents
• occupational therapy services for the parent or parents
• psychological services for the parent or parents
• rehabilitation and other health services for the parent or parents
• guardianship application fees
• management fees for lump sum pecuniary settlements and much more

Why are wrongful death claims often under-compensated?

The reason for this can perhaps best be explained by the fact that the loss of a child is compensated differently than other personal injury claims. In Ontario, claims by family members resulting from the injury or death of the victim are governed by the Family Law Act, R.S.O. 1990 c.F.3 (hereinafter “FLA”).  The Family Law Act states that spouses, children, grandchildren, parents, grandparents, brothers and sisters can be awarded compensation pursuant to a Family Law Act claim. The courts have also stated that unmarried life-partners are also entitled to claim damages.

The Family Law Act states that in Ontario, claimants can sue they can sue for the loss of what is called “guidance, care and companionship” which the claimant may reasonably have been expected to receive from the injured or deceased party had the injury or death not occurred. Again, compensation for damages for a deceased child under the family law act for parents is quite conventional unless the parents of the deceased child suffered other significant losses that are somewhat “quantifiable”.

For example, large wrongful death verdicts in Ontario are more easily obtainable when there are significant pecuniary losses involved – but unfortunately, like some of our neighboring states down south, the loss of a child itself does not involve an intangible loss that is converted into dollars and cents. Rather, the awards of the loss of care, guidance and companionship are based on what is fair and reasonable and in relation to the particular circumstances of each family members’ situation and their differing relationships.

Pushing the Boundaries: Pecuniary Losses related to the Wrongful Death of a Child

We believe that trial lawyers must be fearless and innovative advocates who push boundaries in order to get the best results for our clients. We must strategically take the circumstances faced by our clients and place it above and beyond norm. We must examine every particular situation faced by parents who have lost children in a wrongful death case and  show why in each individual circumstance, an award must be MORE generous than simply the loss of care guidance and companionship.

For example, can we show a cultural significance in the case. Did the deceased child play a significant role with his or her parents, who might not be able read English, negotiating an unfamiliar educational system for their kids, be able to arrange the mortgage, pay the bills, or simply communicate well with doctors friends or neighbors. What is the expectation of a child’s ultimate responsibility as he or she ages with his or her immigrant parents? Although immigration does in fact require acculturation – as in a process of cultural and psychological change in customs, language, values ect., it is often the child, as they age, who assists the parents.

The Family Law Act also provides for pecuniary losses meaning such things as special damages, future loss of income, future loss of family work, future loss of wealth, family expenses, future care expenses, housekeeping expenses etc.

Unfortunately many parents who suffer the untimely loss of a child end up suffering from extreme shock and disbelief, caused by the unexpected and devastating nature of the experience of losing a child. Many parents, in our experience, go on to experience psychological issues that require life-long care. Many parents feel regret about missed opportunities to do things for say things to their child. Many parents go on to feel extreme guilt, wishing they could’ve done something to prevent the death of their child. Many parents going to feel anger at the situation, sadness and other psychological difficulties related to the pain and loss of their loved one. In short, many, if not most parents end up requiring long-term psychological assistance to assist with their complicated grief. Just as well, many parents go on to suffer relationship issues after the death of a child – such as emotional distance with one another, conflict, disagreement and other relationship related problems. All of these issues, for some parents, may require lifelong therapy, counseling or psychological services.

Many parents also end up suffering financial losses. For example, if a parent suffers such serious psychological devastation which impedes his or her ability to return to work for some time, either temporarily or permanently, then his or her earning capacity will be affected. Long ago, in a case called Macartney v. Warner, the Court of Appeal held that Plaintiffs were entitled to make a claim for loss of income under Section 61(1) of the Family Law Act. This allowed surviving family members to make their own claim for loss of income in situations where they themselves have suffered psychological injury due to the loss of their loved one.

In other cases, housekeeping and home maintenance losses, as well as childcare services can be considered. What if the deceased child had siblings that were very young and needed caring for, while the grieving parents suffered? What if the grieving parent or parents were unable to care for their home as they did before because of their psychological damage? These loss of services, can certainly be claimed.

Trial Strategies involving Wrongful Death of a Child

Although rare, what happens if the case goes to trial? If the case does go to trial, we would want to try the case to a jury. We would want to take every opportunity we can to persuade today’s jurors to fully compensate parents for the loss of a child – a story that takes place from the moment the trial starts until to final argument.

The Opening Statement in a Child Accident Case – a Story to Tell

In the beginning – called the “opening statement” we want to tell your story. We want to speak first in the present tense, what is happening “here and now.” We want to use sensory language to describe what happened. We want to speak visually in describing, for example, the sky and the trees, and using sensory language as to what one might feel, hear and touch. We want to establish emotional connection, for example, horrible words that a parent might hear, that we all dread and can relate to, “I’m sorry I have to tell you this.”

We always suggest that the story should have a beginning, a middle, and an end. We want to avoid legalese. We want to take the opportunity to humanize the deceased child. We want to discuss your child’s personality, activities, interests, generosity, and relationship with the parents. We want to help the jury to get to know your child as a person. We want to use demonstrative aids, if possible, showing photographs of the deceased child, particularly  activities such as sports, family outings, and holidays. This will help a jury to understand the magnitude of your loss and to the world.

We want to discuss how your lives have changed, and your own hopes and dreams for your child, for example, school, college, marriage, and grandchildren.

While we may not be permitted to discuss the law with jury members (which is up to the Judge), we can in general tell a jury in opening and closing address that we will be seeking damages, and in fact, a “substantial” amount of money for this loss so it is not a surprise in closing argument.

The Best Witnesses in a Child Wrongful Death Case

With regard to witnesses, we want to bring people in who knew your child as well as those who knew and observed the relationship with you as the parents. Perhaps we would call a teacher or others who worked with your child. Even if your child was not very good in school, we might bring in school personnel who will say what a good personality that your child had, or perhaps how your child tried very hard, or that your child was good in art or had some other talent.

Friends, neighbors, and people from the community will have credibility with juries as opposed to only bringing in family members. A few carefully selected stories about your child can help serve to humanize. The time that your child made something special for mom as a surprise, the time your child scored the winning goal at soccer, the time your child used his or her own allowance savings to give to someone else in need. These stories show the jury what your child was like, makes him or her real, and brings him or her to life. It also demonstrates that these witnesses cared enough to remember a story and that they cherished the memories as do the parents. It is difficult to have you as the parents speak about all of these things, and we prefer to limit the amount of time that the parent is on the stand, and instead utilize others to tell these stories.

It is also important to bring out the plans of your child. What did your child think about in terms of a career? What were your child’s dreams? Although, again, a loss of income for a child is not claimable at law, but these thoughts and plans demonstrate, that in general, the potential loss to society as a whole. If your child played on a team, we want to bring in photographs and perhaps the coach or teammates. Did your child stay over other persons’ houses, or go camping or on a vacation with someone else? We want to have those persons come in and talk about how delightful your child was before his or her death.

Generally, we need to paint a picture of the life of action, health, and happiness.

For a child, simple illustrations of birthday parties, Halloween costumes, and finger painting can show the joy the child brought to everyone is sufficient.

Did you, as parents, plan and hope for a long time of the arrival of your children? Did you prepare a special room or nursery for your child? Did you have trouble getting pregnant? As parents, did you attend elementary school graduation or school open houses, the piano recital, the soccer or “tee” ball games?

Papers written at school, such as regarding a family vacation or talking about parents or grandparents often are telling. Did you, mom or dad help with the homework? All of these things show the loving relationship between parent and child and demonstrate the love and hope for which your child would become.

One wrongful death trial strategy that we have learned is that with the parents, less is more. We want to let the story regarding the relationship come out through others.   We want mom and dad, identify exhibits and photographs that only they can identify and only discuss some of the activities they did with your child, as well as the preparations for your child’s birth.

Closing Arguments in a Wrongful Death Trial involving a Child

The closing statement in a wrongful death case involving a child is typically used to lock in its decision on those issues, clarify the task for the jurors and, in particular, persuade the jurors to render compensation that reflects the true magnitude of life’s most devastating form of loss – and that compensation in the higher range for the loss of care, guidance and companionship should be awarded.  

As in all jury trials, we want to mention a number in our closing statement that we think is fair and with that, we typically want to highlight how important children are to our society and how much value we place on our children.

As Hamilton Wrongful Death Lawyers, we often evaluate injuries and losses to hands, arms, and legs regularly in accident cases. We can place these losses in a “range”of what the value of these damages might be according to Canadian Law.  

In closing arguments, your lawyers are allowed to suggest to a jury what the value of an award might be for a particular injury. For example, we can suggest what an appropriate award might be for a minor loss of something like a finger, depending on what finger it is, how much of the finger was lost, and whether it was the thumb, depending on  the age of the person who has lost it might be worth a certain value. How many more years will they have to suffer the loss of this finger? How will they deal with the next 35 years of life without a finger?

And the same is true with the loss of an arm in a bad accident. We can place a monetary value on the loss of an arm or a loss of a leg.  How many more years will this person suffer the loss of his arm or for the loss of a leg? Perhaps further we might want to talk about more serious injuries, such as being paralyzed. Thirty- five more years without the use of both legs? What is that worth to a person?

Then, how do we evaluate the loss of care, guidance and companionship for the parent of a child, where does it fit in on this continuum over the next 35 years? What is the value of the loss of care, guidance and companionship over 35 years without your child? We can’t, really. It’s not possible from an emotional point of view – that is why our law don’t allow a person to recover compensation for the “death itself” of a child. This is why the law steers parents to claim a “loss of care, guidance and companionship” which is a loss that flowed from the deceased to the parent – and typically, these losses result in under-compensation.

In any event, our wrongful death lawyers think that the persuasion on the value of the loss must come before the actual number. It may well be that with discussion with the jury of ranges of compensation that should awarded, will a defense lawyer then stand up in closing argument, to only tell a jury that this life was not worth this much money to this parent?

Maybe. We hope so.

If you have lost a child in an accident because someone was careless or negligent, contact our Wrongful Death Lawyers today, no matter where you are in Ontario.

The law recognizes that each human being is unique and special in the eyes of the law. Utilizing witnesses and demonstrative evidence to help the jury visualize how fun and vital this child was—laughing and playing, living life—persuades the jury that the monetary award to the parent in terms of the loss of care, guidance and companionship must be symbolic of the magnitude of the loss and the value of this child.

if you have lost a child because someone was not paying attention, we can help. Call us today, no matter where you are Province-wide at 1-844-LALANDE or local in the Burlington / Hamilton / Niagara areas at 905-333-8888. Alternatively, you can contact us by sending a confidential email through our website – by going here.

Remember, our consultations are confidential and free. We are happy to speak with you 7 days a week, no matter where you are in Ontario.

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LALANDE PERSONAL INJURY LAWYERS  – HAMILTON OFFICE
1 King Street East, Suite 1705
Hamilton, On L8P 1A4
Local: 905-333-8888
Toll Free: 1-844-LALANDE

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