How Damages Are Determined In A Wrongful Death Case.

Damages in a wrongful death case are generally structured so that the surviving spouse receives 60 to 70 percent of the net income of the deceased from the time of death forward to the end of the deceased’s career.

In many cases, a huge amount of accounting is involved when the deceased pursued a very expensive hobby. For instance, if he enjoyed collecting racing cars or something equally expensive, the problem is to determine whether or not the income that he spent on the family was really equal to 60 to 70 percent of his income. Statistics Canada says that most people spend 30 to 40 percent of their personal income on themselves, so that amount is subtracted from a claim for a wrongful death.

The claim of the spouse could be substantial if the deceased earned a large income. For example, if he earned $100,000 a year, the surviving spouse will claim $60,000 to $70,000 per year for the working career of the deceased. The children also have a claim, but their claims are a little more restrictive and a lot less. They would receive about 4 percent for each child under the age of dependency until they are no longer dependent on the deceased. Additionally, there are also claims for the loss of care, guidance and companionship under the Family Law Act.

In Canada, we do not see terribly extravagant claims. The loss of a spouse is regarded by the courts as more significant if they are a younger couple rather than if they are an older couple because the years remaining are regarded as limiting factors to the assessment of damages. The younger the couples are, the more secure the relationship. For instance, there are no trial separations or divorces or other things that might have happened in the marriage prior to the deceased’s death, so they are given higher rewards. But those rewards are not extravagant and are generally in the order of $100,000 for the spouse in a very good marital situation, and $ 25,000 to $50,000 for each child for the wrongful death.

Our Canadian system is not comparable to the U.S. system because they are able to claim substantially more in a wrongful death. The spouse would be able to claim millions of dollars. In Canada, the Trustee Act is not interpreted to be extravagant, but they don’t have a similar provision in the United States.

The dependency has to be proven. You really have to investigate the situation of the family and show that there was a real dependency on the income. A new area of loss, called loss of interdependent relationship, looks at what it means for two people to live as one. It’s not as difficult to show dependency today because most families are two income families anyway, so the loss is really still quite substantial.


If you, or someone you care about, is dealing with Personal injury law issues in the Toronto, Ontario Region, contact Strype Barristers LLP.

This article is taken from a November 22, 2007 interview with Jeff Strype LL.B., Personal Injury Lawyer with Strype Barristers LLP in Toronto , a Personal Injury Law Firm.

Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.