Donald G. Cormack

Parents appealed from a trial judgment arising out of their son's death in a motor vehicle accident.

The court held that awards under s. 61(2)(e) of the Family Law Act for loss of care, guidance and companionship were low but within range and should not be disturbed.

Applying the deduction analysis under s. 267 of the Insurance Act, the court held that only statutory death benefits, and not no-fault wage-loss or disability benefits, were deductible from those awards because the death benefits were akin to the compensable loss.

The court also held, by reference to the companion appeal, that a loss of income claim under s. 61(1) could proceed and ordered a new trial on that issue.

On an appeal from a Rule 21 determination in a fatal motor vehicle case, the court held that family members' independent nervous shock claims were barred by s. 266 of the Insurance Act because the claimants themselves did not meet the statutory threshold.

However, the majority held that s. 61(1) of the Family Law Act permits recovery for a family member's pecuniary loss in the form of lost income resulting from the death, and is not confined to loss of expected financial benefits from the deceased.

Because the trial judge later took the opposite view and made no necessary factual findings on causation and loss, the trial judgment was set aside and a new trial ordered on the loss of income claim.

No costs were awarded because success was divided.