Parsons (Succession) v. Guymer (1998), 40 O.R. (3d) 445 (C.A.)Patterson, R. c.

  • Document:
  • Date: 2018

Parsons, Executor of the Estate of Margaret Parsons et al. v. Guymer et al.*

[Indexed as: Parsons Estate v. Guymer]

40 O.R. (3d) 445

[1998] O.J. No. 2562

Docket No. C23569

Court of Appeal for Ontario

Morden A.C.J.O., Catzman and Weiler JJ.A.

June 18, 1998

 

*Application for leave to appeal to the Supreme Court of Canada dismissed November 25, 1999 (Major, Binnie and Arbour JJ.).

Damages — Wrongful death — Dependants’ claims — Plaintiff’s wife killed in motor vehicle accident — Plaintiff suffering stroke between date of accident and date of trial — Plaintiff found to be entitled to damages for loss of stroke-related care by his wife under s. 60(2)(d) of Family Law Reform Act — Plaintiff remarrying — Plaintiff’s second wife dying before judgment entered — Trial judge reducing damages for loss of stroke-related care to take into account care provided by second wife and further reducing damages by 25 per cent based on contingency that plaintiff might marry for third time — Trial judge erring in adopting reimbursement of actual cost approach in assessing damages — Trial judge not erring in taking plaintiff’s second marriage into consideration or in considering contingency that plaintiff might remarry for third time in assessing damages for stroke-related care — Reduction of damages by 5 per cent for contingency of remarriage sufficient — Family L aw Reform Act, R.S.O. 1980, c. 152, s. 60(2)(d).

The plaintiff’s wife was killed in a motor vehicle accident in 1985. The plaintiff was slightly injured in that accident, and suffered a stroke four months later which was not caused or contributed to by the accident and which left him unable to care for himself. He was found to be entitled to damages under s. 60(2)(d) of the Family Law Reform Act for the loss of the stroke-related care which his wife had provided. The plaintiff remarried before damages were assessed. After the trial judge released her reasons but before formal judgment was taken out, the plaintiff’s second wife died. The trial judge reimbursed the plaintiff for the cost of care he received which was not covered by OHIP or his private insurer while he was in nursing home facilities and for the cost of care he received from a professional care worker for eight hours a week from his remarriage until his second wife’s death. After his second wife’s death, the plaintiff received 24-hour-a-day care in his own apartment from a professional care worker for a month until he moved into a retirement home, and the trial judge reimbursed him for the cost of that care. In addition to the care provided at the retirement home, he was in receipt of the services of a professional care worker for eight hours a day. In assessing damages for the period after the plaintiff moved to the retirement home, the trial judge was of the opinion that much of the assistance provided by the professional care worker was in the nature of companionship and was not part of care related to his stroke. She awarded him the cost of special care packages available from the retirement home annually plus the cost of 30 hours of care a week from the professional care worker. The part of the award which represented future care costs was reduced by 25 per cent to take into account the contingency that the plaintiff might remarry a third time. The plaintiff appealed.

 

Held, the appeal should be allowed in part.

 

The trial judge erred in adopting a reimbursement of the actual cost approach in assessing damages. The award of damages for the period until the plaintiff’s remarriage should be set aside. An appropriate award for the plaintiff’s stroke-related care from his first wife during this period would be the equivalent of eight hours a day from a professional care worker or 56 hours a week.

The plaintiff’s desire to get out of institutional care was a major motivation in his second marriage. The event of remarriage is a factor which may be taken into account by courts in assessing damages for loss of care. The trial judge did not err in taking the plaintiff’s second marriage into account in assessing the damages for stroke-related care.

However, she erred in adopting an unduly narrow approach to the plaintiff’s stroke-related care by focusing on the actual physical time needed to assist him. Care also involves a caregiver being available to meet a person’s needs. The award of damages should be set aside and damages should be awarded equivalent to eight hours a day of care from a professional care worker.

The trial judge did not err in principle in considering the contingency of the plaintiff’s remarriage. However, she erred in the exercise of her discretion by giving undue weight to the factor of the plaintiff’s anxious desire to remarry. A reduction of damages by 5 per cent for the contingency of remarriage was sufficient.

 

Cases referred to

 

Boarelli v. Flannigan, [1973] 3 O.R. 69, 36 D.L.R. (3d) 4 (C.A.); Brown v. Finch (1997), 42 B.C.L.R. (3d) 116, [1998] 4 W.W.R. 679, [1997] B.C.J. No. 2601 (C.A.); Coe Estate v. Tennant (1990), 46 B.C.L.R. (2d) 62 (C.A.), revg in part (1988), 31 B.C.L.R. (2d) 236 (S.C.); Fobel v. Dean (1991), 93 Sask. R. 103, 83 D.L.R. (4th) 385, [1991] 6 W.W.R. 408, 9 C.C.L.T. (2d) 87 (C.A.) [leave to appeal to S.C.C. refused [1992] 1 S.C.R. vii]; Franco v. Woolfe (1976), 12 O.R. (2d) 549, 69 D.L.R. (3d) 501 (C.A.); Friends of Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, 84 Alta. L.R. (2d) 129, 88 D.L.R. (4th) 1, 132 N.R. 321, 48 F.T.R. 160n, [1992] 2 W.W.R. 193; Larock v. Steele (1983), 20 A.C.W.S. (2d) 203 (Ont. C.A.); Naeth Estate v. Warburton (1993), 116 Sask. R. 11, 59 W.A.C. 11, [1993] S.J. No. 470 (C.A.); Nielsen v. Kaufmann (1986), 54 O.R. (2d) 188, 13 O.A.C. 32, 26 D.L.R. (4th) 21, 36 C.C.L.T. 1 (C.A.); Sheppard Estate v. McAllister (1987), 60 O.R. (2d) 309, 22 O.A.C. 57, 40 D.L.R. (4th) 233 (C.A.); Smith v. Wells (1993), 105 Nfld. & P.E.I.R. 351, 331 A.P.R. 351 (Nfld. C.A.); Tompkins (Guardian ad litem of) v. Byspalko (1993), 16 C.C.L.T. (2d) 179 (B.C.S.C.); Vana v. Tosta, [1968] S.C.R. 71, 66 D.L.R. (2d) 97; Whitter v. DeSousa, B.C.S.C., July 5, 1989

 

Statutes referred to

 

Family Law Reform Act, R.S.O. 1980, c. 152, s. 60(2)(d) — now Family Law Act, R.S.O. 1990, c. F.3, s. 61(2)(e)

 

APPEAL by the plaintiff from an award of damages for the loss of care by his spouse.

 

D.W. Goudie, Q.C., and Daniel W. Monteith, for appellant. Barry A. Percival, Q.C., for respondent.

 

The judgment of the court was delivered by WEILER J.A.: —

Introduction

 

This appeal raises the question of whether damages for loss of care by a spouse under s. 60(2)(d) of the Family Law Reform Act, R.S.O. 1980, c. 152 (repealed by 1986, c. 4, s. 71(1)) (now s. 61(2)(e) of the Family Law Act, R.S.O. 1990, c. F.3), should be reduced in the event that the surviving spouse remarries. The question is part of a broader challenge to the approach used by the trial judge in assessing damages for the appellant’s loss of stroke-related care by his wife. In addition, the appellant submits that the trial judge’s reduction of damages for future loss of care by 25 per cent, based on the contingency that he might marry a third time, if not wrong in principle, is excessive and not supported by the evidence.

Facts

On May 20, 1985, Donald Parsons, a recently retired executive who was then 62 years of age, was in a motor vehicle accident, as a result of which he suffered minor injuries. His wife, Margaret, was killed in the accident. About four months later, the appellant suffered a stroke which was not caused or contributed to by the accident but which left him unable to care for himself. No issue is taken with the effects of the stroke as summarized in paras. 16 and 17 of the appellant’s factum. They are as follows:

16.  The stroke severely affected Donald. His left arm is completely paralysed. His left leg is 85-90% paralysed. He can only walk short distances and stand for short periods. He fears falling. He sometimes puts his weight on his weak side. He may step on his own toes or cross his feet. His balance is very poor. He likes people to accompany him for security. When he walks or stands, he uses a four-legged cane for support. He neglects his left side.

Donald needs help getting in and out of bed, putting his leg brace on and taking it off, getting dressed and undressed, and putting a coat on and taking it off. He can do up buttons very slowly but can handle clasps easily. He requires help getting in and out of a tub, washing his back, legs and hair, and putting toothpaste on a brush. He has to have his meals prepared and his food cut. He requires someone to pull down his pants and pull them back up before and after using the toilet and to wipe him after a bowel movement. Mr. Parsons can transfer to and from his wheel chair from and to the toilet or his “lazy-boy” chair.

Donald cannot shop, cook or make a shopping list. He needs to have the paper held while writing. Donald also needs assistance getting in and out of vehicles, getting to and from vehicles and putting his wheelchair in and out of the vehicles.

The care Donald Parsons requires is not physically demanding.

 

Donald has a normal life expectancy.

 

17.  Mentally, Donald suffered a number of cognitive deficits, but not a general intellectual disability. He has lost the ability to handle numbers and do arithmetic. He has difficulty calculating a tip in a restaurant or checking a bill. He cannot manage his own finances. He has lost his appreciation of the value of money.

Mr. Parsons has lost his wisdom. He sometimes has trouble deciding what is appropriate behaviour. He is, at times, impatient and crotchety. He does not seem to have highs or get excited about anything. He sometimes gets low and depressed. There is a spark missing.

Mr. Parsons is not able to focus and really think through a situation in a short period of time. Normal tasks that most people could handle reasonably quickly are performed slowly by Donald and are sometimes too difficult to manage at all.

The appellant sued the driver of the other vehicle for damages resulting from the accident including damages under s. 60(2)(d) of the Family Law Reform Act. Where a spouse is killed by the fault of another under circumstances where the surviving spouse is entitled to recover damages, the surviving spouse is entitled to recover, under s. 60(2)(d), an amount to compensate for the “loss of guidance, care and companionship” that he or she might reasonably have expected to receive from the spouse if the death had not occurred.

The trial of the appellant’s action began in May 1990; all issues but one were settled shortly thereafter. The settlement included all claims made under the Family Law Reform Act, including the claim for loss of “guidance, care and companionship” from Mr. Parsons’ spouse Margaret, except for the additional care which the appellant required as a result of his stroke. It was the position of the appellant that had his wife survived she would have provided many of the services he required by reason of his stroke and that he was therefore entitled to be compensated for these services. The couple had been married for 41 years and did everything together. The respondent took the position that, as the stroke had occurred after the date of the accident, it should not be considered. The respondent’s position was successful at trial but, on appeal, this court held that, while entitlement to damages is to be determined as at the date of the accident, assessment of damages is to be determined as at the date of      trial: Parsons Estate v. Guymer (1993), 12 O.R. (3d) 743 at p. 746, 101 D.L.R. (4th) 279 (C.A.). Accordingly, the occurrence of the stroke between the date of the accident and the date of trial was relevant to the assessment of damages. The matter of loss of stroke-related care from the appellant’s wife, Margaret, was referred back to the trial judge to complete her assessment of damages. The appellant had been released from hospital on October 14, 1986, and was in a nursing home or institutional care until December 29, 1990. On that date, the appellant married his nursing aid, Beth Touchie.

The trial judge found that had the appellant’s wife, Margaret, not been killed in the accident, she would have provided all of the appellant’s stroke-related care after he was released from the hospital on October 14, 1986. In her award of damages, the trial judge reimbursed the appellant for the cost of care he received which was not covered by OHIP or his private insurer while he was in nursing home facilities.

When the appellant married Beth Touchie, she cared for him except for four hours on Thursday mornings when a Comcare worker gave him his bath, did his laundry, changed his bed, got him dressed and gave him his breakfast and lunch, and four hours on Fridays when a Comcare worker stayed with the appellant while Beth did grocery shopping and other errands.

 

The trial judge reimbursed the appellant for the cost of Comcare.

 

After the trial judge released her reasons, but before formal judgment was taken out, the trial judge was advised that Beth had gone into hospital on February 8, 1995, and had died of health-related causes on February 16, 1995. The trial judge allowed the appellant’s application to reopen the case and to lead further evidence on the issue of the appellant’s loss arising from stroke-related care. From February 8, 1995 until March 12, 1995, the appellant received 24-hour-a-day care in his own apartment from Comcare for which the trial judge reimbursed the appellant. On March 12, he moved to Park Place Manor, a retirement home in Aurora, Ontario, where he remains. In addition to the care provided at Park Place Manor, the appellant is in receipt of the services of a Comcare attendant eight hours a day or 56 hours a week. In assessing damages from March 12, 1995, onwards, the trial judge was of the opinion that much of the assistance provided by Comcare to the appellant was in the nature of companionship and was        not part of care related to his stroke. She awarded the appellant the cost of two special care packages available from Park Place Manor costing $3,480 annually, plus the cost of 30 hours of care a week from Comcare at an annual cost of $21,450. Based on the actuarial evidence accepted by the trial judge as at May 19, 1995, the sum of $6,064 was required in order to produce the sum of $1,000 a year to the end of Donald and Margaret Parsons’ joint life expectancy. She therefore awarded the appellant $21,102.72 for the special care package and $130,072.80 for the cost of Comcare for a total of $151,174.70. Inasmuch as this sum represented an award for future care costs, the trial judge took into consideration the contingency that the appellant might remarry yet again, and reduced the sums awarded by 25 per cent.

 

The Positions of the Parties

 

The appellant appeals the trial judge’s assessment of damages up until the time he moved to Park Place Manor on the basis that she erred in principle in adopting a cost reimbursement approach in her assessment. The appellant submits that the care given by the appellant’s second wife, Beth, was a private benevolence and that it ought not to have been taken into account to the benefit of the wrongdoer. For the same reason, the appellant submits that the trial judge erred in reducing the award of damages by 25 per cent to reflect the contingency that the appellant might marry a third time.

In relation to the period from March 12, 1995, when the appellant became a resident of Park Place Manor, and in relation to the future care of the appellant, the appellant submits that the trial judge’s delineation of “care” was too narrow and that she erred in this regard. It is the position of the appellant that the trial judge ought to have awarded the appellant damages for the loss of stroke-related care from his wife equivalent to the cost of receiving 24-hour-a-day care from Comcare whether or not this expense was actually incurred in the past or is incurred in the future.

The respondent submits that the best indication of the loss of care due to stroke-related damages is the cost of care the appellant incurred until the time he went into Park Place Manor. The respondent points out that the reduction of damages when a spouse remarries is well established in law. The taking of a remarriage into account in assessing damages was referred to in the 1993 appeal to this court, which held (at p. 749) that an event occurring between the date of the accident and the date of trial ought to be taken into account in assessing damages. In relation to the damages awarded from March 1995 and in the future, the respondent points out that it is not for this court to substitute its opinion of damages for the assessment made by the trial judge unless some palpable and overriding error has been shown. It is submitted that none has been shown. The respondent also submits that the trial judge did not err in principle in the manner in which she exercised her discretion in reducing the award by 25 p er cent on account of the contingency that the appellant might marry a third time.

 

Analysis

 

(1)  Did the trial judge err in her approach to the assessment of damages for the loss of Margaret Parsons’ care which Donald Parsons required because of his stroke?

In assessing damages, it is the value of the services by the particular wife to the particular husband which must be determined: Franco v. Woolfe (1976), 12 O.R. (2d) 549 at p. 551, 69 D.L.R. (3d) 501 (C.A.); Nielsen v. Kaufmann (1986), 54 O.R. (2d) 188 at p. 196, 26 D.L.R. (4th) 21 (C.A.). While the loss of the stroke-related caregiving functions that Margaret would have provided is incapable of strict arithmetical calculation, one starts with the proposition that the services which Margaret would have provided as a result of the appellant’s stroke have a quantifiable economic value. In assessing the loss of Margaret’s stroke-related care, the cost of replacing that care in the market place is an important measure which has two aspects. As a result of his stroke, Mr. Parsons is unable to engage in certain physical activities. He is also unable to perform certain managerial functions pertaining to his daily living because he lacks judgment. The appellant had a reasonable expectation th at, had his wife not been killed, she would have provided the physical and managerial care he required as a result of his stroke.

It is not necessary for the injured person to prove that someone was actually employed to the date of trial or will be employed in the future to perform these caregiving functions: Fobel v. Dean, [1991] 6 W.W.R. 408 at p. 430, 83 D.L.R. (4th) 385 (Sask. C.A.), leave to appeal to the Supreme Court of Canada refused [1992] 1 S.C.R. vii; Smith v. Wells (1993), 105 Nfld. & P.E.I.R. 351 (Nfld. C.A.) at p. 356. The aim of damages is to place the injured party as nearly as possible in the situation he or she would have been in but for the actions of the tortfeasor. Therefore, in adopting a reimbursement of the actual cost approach, the trial judge erred in her approach to assessing damages.

Although the appellant has suffered the loss of stroke- related care which would have been provided by his wife Margaret, the appellant also has an obligation to support himself to the extent he is capable of doing so under the Family Law Act, s. 30. That obligation is a continuing obligation and an award for future care costs should not completely relieve him of it: Nielsen v. Kaufman, supra, at p. 197. The appellant is not entitled to the cost of 24-hour care as damages.

Based on the trial judge’s findings, had the appellant’s wife not been killed, he would not have been in institutional care. I would set aside the award of damages made by the trial judge for the period from October 14, 1986, until December 29, 1990, on the basis that she erred in adopting a reimbursement of actual cost approach. I am of the opinion that an appropriate award for the appellant’s loss of stroke-related care from his wife Margaret during this period would be the equivalent of eight hours a day of care from Comcare, or 56 hours a week.

This award recognizes that a caregiving spouse must rest, that not all of the care which Margaret would have provided the appellant would have been stroke-related care, and that the appellant, who had previously been self-supporting, should not be able to transfer the entire cost of his care to his spouse.

(2)  Did the trial judge err in taking Donald Parsons’ remarriage into account in assessing the damages for stroke-related care?

The appellant’s desire to get out of institutional care was a major motivation in the appellant’s marriage to Beth Touchie. It is well established that the event of remarriage is a factor which is taken into account by courts in assessing damages for loss of care: Larock v. Steele (1983), 20 A.C.W.S. (2d) 203 (Ont. C.A.); Naeth Estate v. Warburton (1993), 116 Sask. R. 11, [1993] S.J. No. 470 (C.A.). Remarriage is not necessarily a benefit: Brown v. Finch (1997), 42 B.C.L.R. (3d) 116, [1997] B.C.J. No. 2601 (C.A.) at p. 6. The extent to which damages will be affected is a question of fact which depends on all the circumstances: Naeth Estate, supra. The appellant cited authority to the effect that an award to children for the loss of care of a parent, where the children are being cared for by a relative, is considered a private benevolence and is not reduced. See Boarelli v. Flannigan, [1973] 3 O.R. 69 (C.A.) at pp. 72-73, 36 D.L.R. (3d) 4 (C.A.);

Coe Estate v. Tennant (1988), 31 B.C.L.R. (2d) 236 (S.C.) at p. 252; Sheppard Estate v. McAllister (1987), 60 O.R. (2d) 309 at pp. 312-13, 315, 40 D.L.R. (4th) 233 (C.A.); Tompkins (Guardian ad litem of) v. Byspalko (1993), 16 C.C.L.T. (2d) 179 (B.C.S.C.) at pp. 191-92; Whitter v. DeSousa (July 5, 1989) (B.C.S.C.) at pp. 9-12. Similarly, an award to a surviving spouse for the loss of care by a spouse who has been wrongfully killed by a tortfeasor was not reduced when the surviving spouse was cared for by his mother and mother-in-law. See Vana v. Tosta, [1968] S.C.R. 71, 66 D.L.R. (2d) 97 at p. 113. The appellant submits that the result should be the same when an injured spouse remarries. There is no legal obligation on a person, other than a parent as defined under the Family Law Act, to support a child under a certain age. Similarly, there is no legal obligation on a parent to support children over a particular age who have attained independence, no r on a person to support a relative or in-law. In these instances, the injured person can have no legitimate expectation of care from the persons on whose benevolence he or she depends.

Upon marriage, there is a legitimate expectation that one spouse will care for the other. This expectation is not just based on conventional marriage vows which spouses exchange, but on the obligation of spouses to support one another during marriage under the Family Law Act. The spouses cannot contract out of their mutual support obligation. In my view, the trial judge did not err in taking into consideration the appellant’s marriage to Beth in assessing the damages for loss of stroke- related care.

The appellant’s alternative submission that the care the appellant received from Beth was inferior to the care he received from Margaret, and that the award of damages should reflect this, was rejected by the trial judge. She found that, although the two wives were very different, Beth was able to meet the appellant’s stroke-related care needs apart from an average of eight hours a week when an aid from Comcare came.

I would not alter the trial judge’s award of damages from December 29, 1990 to February 8, 1995.

(3)  Did the trial judge err in her assessment of the damages for the appellant’s stroke-related care after the death of Beth?

No issue is taken with the award of 24-hour care between February 8, 1995 and March 12, 1995, while Beth was in the hospital, and for a short time thereafter.

Due to his move to Park Place Manor on March 12, 1995, the appellant submits that he incurs monthly costs which are significantly greater than if he were to reside in his own home and which total $12,418 a year. The monthly cost to the appellant for his room and private bathroom at Park Place Manor is $2,177 a month, or $26,124 a year. This cost includes a great deal more than shelter costs, however. It includes three meals a day as well as certain care services such as co- ordination of medication, weekly housekeeping, twice weekly garbage pickup, laundry, a weekly bath and emergency response services. The trial judge disallowed any part of this monthly fee as damages for stroke-related care on the basis that the appellant would have living costs no matter where he lived and on the basis that the evidence led in support of the expenses the appellant would have had, had he remained in his home, were too imprecise. I would not disturb the assessment of the trial judge in this regard.

In addition to the services the appellant receives at Park Place Manor, he has engaged the services of an assistant from Comcare for a total of eight hours a day or 56 hours a week. The trial judge concluded that much of the assistance Comcare provides to Mr. Parsons is in the nature of companionship which was not part of care related to his stroke. She also found that it was not unreasonable that the appellant should get out for a meal or shopping once a week. The trial judge allowed the appellant the cost of four hours’ assistance from Comcare on a daily basis and an extra two hours per week for an outing for a total of 30 hours per week. The trial judge’s award also included provision for an additional monthly fee of $50 for extra care known as “Service Package ‘A'”, which includes assistance with a second bath per week, daily bedmaking, and daily garbage collection plus “Service Package ‘D'”, which includes 30-60 minutes of help with activities of daily living per day and costs $250 per month. She state

He requires assistance with the washroom over the course of his waking day and obtains such assistance presently on occasion, from the PPM staff, when his Comcare worker is not present. He is not charged for this assistance, because it is only occasionally that he needs the assistance and the time involved is insignificant. The sixty minutes of daily assistance he would obtain with the Service Package “D” would be more than enough to meet his needs in this regard and such help would be available as he needed it.

In her reasons, the trial judge recognized that, at least in relation to going to the bathroom, Mr. Parsons needed care when no aid was present. The trial judge’s allowance of special care package “D” ignores the fact that, unless a Comcare aid is present, Mr. Parsons will likely be alone when he has to go to the bathroom. He has to somehow get to a call button to summon an aid and wait until the aid comes to assist him to pull his pants down. While the actual time the aid might take to pull Mr. Parsons’ pants down, wipe him if he has a bowel movement and pull his pants up again might not take more than one-half hour to an hour a day, the loss of the ability to go the bathroom when he had to was not compensated for by the provision of this package. In my opinion, the trial judge erred in adopting an unduly narrow approach to Mr. Parsons’ stroke- related care by focusing on the actual physical time needed to assist him. Care also involves a caregiver being available to meet a person’s needs. Having regard t o the considerations I have mentioned in relation to the assessment of damages from October 14, 1986, until December 29, 1990, I would set aside the award of the trial judge and make an award of damages equivalent to eight hours a day of care from Comcare.

(4)  Did the trial judge err in reducing the damages by 25 per cent for the contingency that the appellant might remarry a third time?

For the reasons I have already given, the trial judge did not err in principle in considering the contingency of the appellant’s remarriage. An error in principle occurs, however, if a trial judge overemphasizes a relevant factor or fails to give sufficient weight to relevant factors, and if this occurs the trial judge’s exercise of discretion is reviewable: Friends of Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at pp. 76-80, 88 D.L.R. (4th) 1. The appellant’s submission is that the trial judge overemphasized the evidence concerning the appellant’s eagerness to marry.

In her reasons the trial judge stated:

In January I heard evidence about how anxious Donald Parsons was to re-marry after he was discharged from the treating hospital and came to be confined in the nursing homes in Whitby. He is very unhappy with any sort of regimentation in his life and particularly dislikes this aspect of institutional living. Donald Parsons did not testify during the most recent proceedings. I have only heard from others that he seems to enjoy his present surroundings, but I did not hear that from Donald Parsons. On the totality of the evidence before me, I can only conclude that Donald Parsons would be happier married, and living in his own home, given the chance and the opportunity. In my view, there is some prospect that Donald Parsons may marry again and I must take this factor into consideration. In so doing, I would reduce the sums awarded in respect of future care costs by twenty- five per cent.

The appellant was 72 years old in 1995. He does not get out very often, and his opportunity to meet eligible women to marry is severely restricted. The appellant submits that very few women would be willing to assume the burden of his care and I would agree with that submission. Between the time of Margaret’s death and the appellant’s marriage to Beth, five years had elapsed. In my opinion, the trial judge erred in the exercise of her discretion by giving undue weight to the factor of the appellant’s anxious desire to remarry. Having regard to all of the factors I have mentioned, it seems to me that a reduction of damages by 5 per cent for the contingency of remarriage is sufficient.

 

Summary

 

For the reasons I have given, I would allow the appeal, in part, respecting damages for the loss of stroke-related care by the appellant’s wife for the period October 14, 1986 to December 29, 1990, as well as the period after his admission to Park Place Manor on March 12, 1995. I would set aside the order of the trial judge for these periods and substitute an award equivalent to eight hours of care per day or 56 hours a week for both these periods. Based on a cost of $13.75 per hour for Comcare, the amount for the period from October 14, 1986 to December 29, 1990 is $168,520. The amount for future care costs from March 12, 1995 is $242,802.56. I would reduce the award on this latter figure by 5 per cent ($12,140.13) to $230,662.43 for the contingency that the appellant might marry a third time.

 

The appellant is entitled to his costs of the appeal. Appeal allowed in part.