Loss of Income Awards in Family Law Act Claims

In Ontario, if a spouse, child, grandchild, parent, grandparent, brother, or sister is injured or killed as a result of negligence, then their family members may be entitled to recover their pecuniary losses resulting from such injury or death. This is thanks to section 61 of the Family Law Act, RSO 1990, c F.3. (“FLA”) which permits said family members the right to sue in tort in a court of competent jurisdiction for said pecuniary losses.

A pecuniary loss is one that is quantifiable – it is objective and can be assessed in financial, monetary terms. Examples may include medical care costs, property damage, or income loss.

Typically, FLA claimants will be able to claim for income loss that results from providing housekeeping or attendant care services to their injured loved one, as permitted by section 61(1) of the FLA. However, what happens in the event of a fatality, where a family member passes away due to a collision and their loved ones must take time off work or cannot return to work at all as a result? That family member will have lost income they would have made had the untimely death of their loved one not occurred. Can they claim for that lost income against the negligent party in a court of law?

The Ontario Court of Appeal’s decision in Fiddler v. Chiavetti[1] indicates that such claims for lost income can in fact be made. Amanda Fiddler was violently killed when a transport truck she was riding in struck another transport truck on January 16, 2005. At trial, a jury awarded her mother, Debbie Fiddler, $22,000.00 in past wage loss, $6,000.00 per year for 12 years of future wage loss, and $200,000.00 for loss of care, guidance, and companionship. The Ontario Court of Appeal notes that the past and future loss of earnings claims were “distinct from the usual claim for loss of financial support under s. 61(1) of the FLA.”[2]

On appeal, the issue was whether the trial judge allowing the loss of income claim to succeed resulted in a miscarriage of justice. However, the error of Amanda Fiddler’s mother was “not in her right to make the claim; rather, it [was] in her failure to provide expert evidence.”[3] Indeed, the appeal had nothing to do with Debbie’s right to make an income loss claim in the circumstances of a fatality, as all parties agreed that the income loss claims were allowed under the FLA. The appeal had to do instead with Debbie Fiddler failing to meet her evidentiary burden, as she had failed to produce records or documentation and was only able to support her income loss claim with witness testimony. The Ontario Court of Appeal ruled that Debbie Fiddler’s failure to provide expert evidence in connection with her wage loss claim, while far from optimal, was not fatal to her claim, and the income loss award was upheld.