An article in the Feb 19, 1996, Globe and Mail discussed an Angus Reid Group survey which found that one in four Canadians expect to have their aging parents living under the same roof with them.

This expectation is even greater (38 per cent) among younger adults (ages 18 to 34).

In a culturally diverse country like Canada, many children feel an obligation to support their parents in their advanced years if such assistance is required. Canadian courts have entertained arguments that parents are entitled to compensation for the loss of a child, as long as they can offer a pecuniary estimate of the value of that loss.

Where there is a loss of a child, the pecuniary loss of the parent is quantified by the services of a child during minority less the cost of the child’s maintenance and education during that period, and in addition all the probable, or even possible, pecuniary benefits which might result to the parent from the child’s life, modified by the probability of failure and misfortune.

From statistical evidence concerning the average child, or information from the parent; one can identify the costs of raising a child to adulthood. By using there costs as a yardstick for the potential benefits obtained from a child, and making an assumption about how these benefits can be distributed over the child’s lifetime, an approximate amount can be derived of both the benefits and costs that have been forgone. When we take the difference of these estimates, the result becomes the pecuniary loss that is payable to the parents.

The parents’ loss also includes the probability that the parent would benefit from earnings that the child might have accumulated, though there has to be an adequate basis for assessing decreased future earnings so that the matter is not left to speculation.

Aside from future earnings, damages may include the reasonable value of future services that the child would have performed. If there is evidence that the child would have offered services that the parents would have had to purchase in the market - such as helping at the parent’s business or offering the parent’s accommodation in the child’s home - it is appropriate to quantify these amounts.

Recovery of the value of services is not affected by whether the child was unmarried, a minor or living within the parent’s home. The standard is the present value of reasonable expectation of future services; as a result, evidence is permissible showing prior services, the parent’s increasing or decreasing need for services, the child’s ability to have rendered future services, character and habits of the child and the life expectancy of the parent.

In the case of divorced parents where the custody of the decreased child was given to one parent, the non-custodial parent is not precluded from sharing the recovery in wrongful death. Nonetheless, there is no presumption that the parents are entitled to equal amounts of the recovery.

In cases where the parents are the child’s beneficiaries, the pecuniary injuries include the loss of their child’s services. Their compensation may properly include probable, or even possible, benefits that might accumulate to the parents from the child’s entire life, taking into account the likelihood of failure and misfortune.

The courts seem to be interested in a number of considerations in making their awards. Some of these include tangible evidence of the child’s aspirations, and the probability they would have been realized; the health of the child; evidence of the child’s capacity of get involved in things such as extracurricular activities; the likelihood that the child would have obtained a post-secondary education, had children, become sick or unemployed, etc.; the likelihood that there might have been a reduction in the level of contributions to the parents during the time that the decreased was in university; the relationship that the child had with his or her family; whether the child demonstrated a commitment to helping the family, either through past financial contributions or by helping with various tasks; cultural beliefs and values that might have made future contributions by the child a legitimate expectation; the size of the surviving parents income, and the chance they might obtain higher-paying work in the future; the health of the surviving parents, retirement benefits and income from investment funds accruing to the parents in the future. The following cases are examples of awards in Canada to parents for the loss of a child:

In Courtemanche v. McElwain (1962), 37 D.L.R. (2d) 595, the Ontario Court of Appeal affirmed that there was sufficient evidence to sustain an award of $1,500 general damages to the parents for the death of their seven-year-old son. The court said that the plaintiff was an intelligent boy, progressing well in school having regard to his age. The father ambitions for his children, he had plans for the educational advancement of the boy and the expectation that the boy ultimately would be of pecuniary benefit to him by way of assistance to his parents. It is not absolutely essential that there be evidence of actual services rendered by the child prior to his death, or that there be actual evidence of the willingness of the child to perform services of pecuniary benefit to the parent.

French v. Blake (1971), 19 D.L.R. (3d) 244 (B.C.C.A.) involved the death of a 15-year-old girl. She was described as a “brilliant student”, had been elected as a student representative, received a small amount working as a lab assistant and also assisted her family with household. She had aspirations to become a pediatrician. The court found that the deceased had made a definite contribution to her family and it was fair to assume she would have been able to make more a substantial contribution as time went on, had she survived. The court fixed damage at $4,000.

In Cox v. Fleming (1995), 15 B.C.L.RS. (3d) 201 (C.A.), there was no evidence that the deceased intended or desired to teach and little evidence of past contributions by him to his parents. Despite this, the trial judge found (and the court of appeal accepted) that the deceased “ would have readily assisted his parents as he grew older.” Before arriving at the increased award of $20,000, the court observed that culture is not the only factor determining whether a parent has a reasonable expectation of pecuniary benefit from his or her child.

The responsibility of deducing an appropriate value for the level or pecuniary benefit that parents could reasonably have expected to derive has an impact on an award. Putting dollar values on the level of pecuniary benefit has been problematic. There has to be something more than a mere speculative possibility of pecuniary gain. There must be something tangible in the evidence that makes the expectation reasonable.

Each case has to be decided upon the particular facts. The issues mentioned in this article make it clear that there is no set make it clear that there is no set formula for calculating the level of pecuniary benefit that parents could reasonably have expected to derive from the continuation of the life of their deceased child.

By Saqib Durrani and Gordon Krofchick

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