This piece is a complement to my blog from last summer “Breaking the Ceiling? The High-Water Mark for Pain and Suffering Damages in Ontario Personal Injury Law”^[1].

What FLA Damages Are—and Who Can Claim Them

Ontario’s Family Law Act^[2] (FLA) creates a statutory cause of action for certain relatives of a person who is injured or killed by another’s fault.

Eligible family members (spouses, children, grandchildren, parents, grandparents, and siblings) can recover pecuniary losses such as actual expenses and funeral costs, as well as the non-pecuniary loss of “care, guidance and companionship” the injured or deceased would have provided but for the tort. The statutory source is s. 61 of the Family Law Act^[3].

Under s. 61, “spouse” takes its meaning from Part III (Support Obligations) of the FLA. Practically, that means eligibility isn’t limited to the legally married. It includes two unmarried people who have cohabited continuously for at least three years, or who are “in a relationship of some permanence” and have a child together (FLA, s. 29). The Supreme Court of Canada^[4] confirmed that this expanded Part III definition applies regardless of sex, so same-sex partners who meet s. 29 qualify as “spouses” for s. 61 claims just as married spouses do.

The upshot: if the relationship meets s. 29, the partner can advance FLA damages for loss of guidance, care and companionship under s. 61

The Automobile Twist: Threshold and Deductible

When the underlying tort arises from a motor vehicle accident, the Insurance Act^[5]regime applies to FLA claims. In that context, non-pecuniary FLA damages are subject to the same “threshold” concept and to a separate FLA-specific deductible (currently $23,395.04) and monetary threshold (currently $77,982.13) that are annually indexed^[6]. Practically, that means a claimant’s non-pecuniary award can be reduced by the deductible unless it exceeds the indexed monetary threshold, and the threshold rules and evidentiary requirements in O. Reg. 461/96^[7]still need to be met.

For current planning and mediation reality-testing, counsel should work with the indexation amounts in force for the calendar year. For 2025, FSRA’s published guidance lists the FLA non-pecuniary deductible (s. 267.5(8) rules^[8]) and related thresholds used by the courts in MVA litigation<^[9]

The Foundational Range: To v. Toronto Board of Education

The modern starting point for non-pecuniary FLA damages is the 2001 case of To v. Toronto Board of Education, 2001 CanLII 15761 (ON CA)^[10]. A 14-year-old student died when gym equipment toppled. A jury awarded $100,000 to each parent and $50,000 to the sister for loss of care, guidance and companionship. On appeal, the Court of Appeal upheld the $100,000 awards to the parents but reduced the sister’s award to $25,000, and described $100,000 as the “high end” of the accepted range at that time.

Inflation and Restraint: Fiddler v. Chiavetti

In the 2010 decision Fiddler v. Chiavetti, 2010 ONCA 210^[11], a young woman was killed in a highway crash. The jury awarded the mother $200,000, the father $50,000, and the sister $25,000 for loss of care, guidance and companionship. The Court of Appeal reduced only the mother’s award to $125,000, expressly tying the “high end” identified in To to inflation and emphasizing appellate restraint in disturbing jury quantums absent error or an award that “shocks the conscience.”

Appellate Deference Reinforced: Vokes Estate v. Palmer

In Vokes Estate v. Palmer, 2012 ONCA 510^[12], a pregnant mother died in a motor vehicle collision, leaving a spouse and two young children. On appeal, the insurer attacked the jury charge and the size of the FLA awards. The Court of Appeal dismissed the appeal, reiterating the very high threshold for interfering with jury damages assessments—even when awards are “high”—absent an error of law or an amount that is inordinately large by the legal standard.

The High-Water Mark: Moore v. 7595611 Canada Corp.

In 2021, the Court of Appeal released its decision in Moore v. 7595611 Canada Corp., 2021 ONCA 459^[13], which is the current ceiling for FLA damages in Ontario. An adult daughter perished after a preventable apartment fire. Her parents endured the brutality of the ICU and the decision to withdraw life support. A civil jury awarded each parent $250,000 for loss of care, guidance and companionship (among other heads). The Court of Appeal upheld those awards, rejecting the notion of a hard cap and holding that, on these facts, the quantum did not “shock the conscience” and warranted deference. The decision confirms that Ontario has neither a statutory nor judge-made cap on FLA non-pecuniary damages. Quantification remains fact-sensitive and guided by appellate restraint.

What the Cases, Read Together, Actually Say

Taking To, Fiddler, Vokes, and Moore together, the Court of Appeal has set a principled pathway, not a tariff. The law recognizes that bereavement and the severing of familial bonds cannot be reduced to a formula. Fact patterns—age and dependency, nature and closeness of the relationship, the circumstances of the death or injury, the duration and depth of grief, and the lived consequences for the family—drive the outcome. And gender is irrelevant.

Appellate courts intervene only in rare cases.

Practical Implications For Counsel and For Mediation

For plaintiffs, Moore is a reminder to build the human record with specificity, not abstraction. Document the relationship, the routines that vanished, the guidance that was lost, and the practical and emotional holes left behind.

For defendants, the pathway to moderating exposure is evidentiary and contextual, challenging the depth of dependency claimed, situating the relationship against comparators, and, in MVA cases, engaging with the threshold and deductible realities early.

In mediation, the spread often reflects the parties’ competing narratives about the relationship and about whether Moore is a floor, a ceiling, or an outlier. The appellate cases make clear it is none of those things. It is a data point within a principled, highly deferential framework that resists rigid caps.