Victims of sexual assault often lose the ability to form and sustain interpersonal relationships due to the trauma they have undergone. In these circumstances, a potential claim for damages for loss of interdependent relationship may arise.
These damages are aimed at compensating the plaintiff when their injuries impair or prevent them from forming a permanent interdependent economic relationship, such as marriage or common law cohabitation.
The basic principle behind a loss of interdependent relationship claim is the idea that “two people can live more cheaply than one”. Plaintiffs are not compensated for the loss of the relationship itself, but the loss of the opportunity to form a relationship which can be expected to produce financial benefits to the plaintiff. This theory includes not only the sharing of the income, but the sharing of living expenses as well.
In assessing the pecuniary aspect of such as claim, the plaintiff must prove two things:
- a real and substantial possibility that chances of forming an interdependent relationship have been detrimentally affected due to their injuries; and
- that such a relationship would have been economically advantageous to them.
Several appellate courts have stressed the importance of a proper evidential foundation before such damages can be awarded. For example, the New Brunswick Court of Appeal has indicated that an award under this head of damages is not appropriate in the absence of cogent statistical, economic and actuarial evidence.
The case law reflects that such awards are more common where the plaintiff is a female. These damages have also generally been awarded in cases of very serious or catastrophic injury. However, Ontario courts have recognized that victims of sexual assault are entitled to compensation where the injuries have damaged their ability to form an interdependent domestic relationship. This is illustrated by the recent decision of the Ontario Superior Court in K. M. v. Marson, 2018 ONSC 3493.
In this case, the 50 year old plaintiff was sexually abused as a child by his elementary school teacher. He brought an action in negligence against the former teacher and school board. In considering the two-part test for loss of interdependency, the court noted that, in the absence of a catastrophic injury, “this head of damages must be substantiated by expert evidence and ‘pointed testimony’ from persons who know the plaintiff.” In determining whether the interdependent relationship would have been economically advantageous, the court noted that it is “not enough to simply rely on case law establishing financial dependency between spouses”.
In K.M., the plaintiff had not had a live-in interdependent relationship since 1999 and was only involved in three domestic relationships which lasted from 2-8 years. The parties also agreed that the plaintiff was not likely to form an interdependent relationship.
Furthermore the court accepted the “two can live cheaper than one” approach used by the plaintiff’s expert rather than the net dependency approach used by the defendant’s expert. The court found that the proper approach was to focus on the plaintiff’s future loss of expense-sharing ability, while taking into account his projected income. To that end, the court recognized that the plaintiff would pay 100% of his household expenses going forward; whereas had he formed an interdependent relationship, he would likely have saved a portion of his income (approx. 30%). Accordingly, the court awarded the plaintiff $125,000.00 for loss of interdependent relationship.
The sizeable award made in K.M. highlights positive developments in this area of law, including the fact that male plaintiffs are now beginning to successfully litigate claims. This case also emphasizes the importance of leading evidence to support the plaintiff’s theory through experts who can address socio-economic and human factors. It is likely that this development will assist plaintiffs in making loss of interdependent relationship claims in the future. We must watch and see whether other courts follow the lead of Justice MacLeod-Beliveau in K.M.