Dependency Claims: How a Forensic Accountant Can Help

A personal injury claim not only affects the injured individual but it financially affects their entire family. A family might lose their breadwinner; a family might have to pay for household keeping services. In particularly unfortunate circumstances, a family might have to pay for funeral expenses.

The Family Law Act recognizes this reality. Section 61(5)(1) grants certain relatives of an injured individual the right to recover damages. It states:

If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.[1]

Section 61(5)(2) states that the recoverable damages may include:

(a) actual expenses reasonably incurred for the benefit of the person injured or killed;

(b)  actual funeral expenses reasonably incurred;

(c)  a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;

(d)  where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and

(e)  an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.[2]

While certain relatives of injured individuals and their counsel would be happy that they could

make these claims, they might be wondering how to quantify such claims. This is where an expert, like a forensic accountant, would be of assistance. In the below section, we will discuss specific recoverable damages and the important role experts play in quantifying them.

Loss of Income

When calculating loss of income upon the death of the spouse, courts need to know what approach they will use. The three approaches are the sole dependency approach, the cross-dependency approach and the modified sole dependency approach.

The sole dependency approach “measures the amount of benefit that the surviving spouse and child received from the income of the deceased.”[3]  This is normally calculated at a rate of 70% for the spouse and 4% for each child.”[4] This approach is well-suited towards situations where a family has one bread-winner.

The cross-dependency approach “considers that the amount of loss should be reduced by an amount that reflects the fact that the deceased would have used some of their income to their own benefit.”[5]

A mid-ground between the two approaches, is the modified sole dependency approach. It can be used when the household is a two-income family with children.[6] Using this approach, a 60% dependency rate for the surviving spouse is used, with each child receiving 4%. One could see how this approach would be useful when the deceased or injured spouse had a significantly higher income than the surviving or non-injured spouse.

As one could see, the approach the court takes will significantly affect the amount of loss of income damages that a plaintiff will receive. Therefore, a client and their counsel will want to persuade the Court that their desired approach is the “appropriate” approach. The appropriate approach “depends on the facts of a particular case, and the quantum of income earned by each spouse.”[7] Counsel will retain often retain experts to convince the court of the appropriate approach.[8]

Household Keeping Services

While loss of income would be the predominate concern, an injured or deceased individual might not be able to perform certain household services. Experts using both information from the respective family and statistical data can calculate the loss of household services, both past and future.[9] The expert should ensure their calculations are based in reality.[10]

Courts may consider if an injured individual was an above average housekeeper.[11]

Potential Future Recoverable Damages?

The Family Law Act is continuously evolving legislation. Relatedly, past case law has stated that recoverable damages are not limited to s 61(2).[12] Future court decisions might expand the list of damages and experts, like accountants, might be needed to quantify such damages.

[1] Family Law Act, RSO 1990, c I 8, s 61(5)(1).

[2] Family Law Act, RSO 1990, c I 8, s 61(5)(1).

[3] Estate of Mary Fleury et al v Olayiwola A Kassim, 2022 ONSC 2464 at para 299.

[4] Ibid.

[5] Ibid at para 300.

[6] Ibid at para 301.

[7]Tahir v Mintoff, 2019 ONSC 7298 at para 186.

[8] See for example ibid at para 187; Estate of Mary Fleury et al at paras 296-312.

[9] Tahir, ibid at paras 206-212.

[10] Ibid at para 209.

[11] Hechavarria v. Reale, 2000 CanLII 22711 (ON SC) at para 32.

[12] Stickel v. Lezzaik, 2008 CanLII 10057 (ON SC).

Written by

Jennifer Lynch is the President of Lynch & Associates. She is a qualified expert witness in the field of forensic and investigative accounting. Being a Chartered Professional Accountant, a Certified Management Accountant, a Certified Fraud Examiner, a Certified Forensic Investigator, and a Chartered Business Valuator, she offers her clients a variety of services.

Lynch has provided expert witness testimony in a wide variety of trials. Drawing on her strong business background, which includes an MBA from the Schulich School of Business, she provides forensic accounting and fraud examination services related to personal injury damage quantification services, insurance claims, matrimonial disputes, and fraud claims for a wide variety of clients.