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Court Testimony From Experts @ BEC

Excerpt from Millott v. Reinhard

Sole/Cross/Modified Dependency

[240] One of the most contentious issues between the parties was the issue of sole or cross dependency. This refers to the extent, if any, to which a spouse's income should be included in the dependency calculations. The Plaintiffs initially submitted that sole dependency, which would ignore the portion of Lauretta's income that she spent on Millott, was appropriate. This approach has been commonly used in the past, as many families have had only one income earner. The Defendants argued that the cross dependency approach is more appropriate in a two-income family. This would effectively deduct from the damages award the amount that Lauretta used to spend on Millott. The Plaintiffs later suggested that perhaps a "modified" approach could be used instead of the sole dependency approach. The modified approach lowers the sole dependency rate, which would ignore Lauretta's income (as in the sole approach), but lower the portion of Millott's income which the family is assumed to consume. Under the modified approach, the final figure remains higher than it would be under a full cross dependency approach. A modified rate of 60 per cent was used in Hechavarria v. Reale (2000), 51 O.R. (3d) 364 (Ont.S.C.J.); Nielsen, supra; and Murray Estate, supra.

[241] Numbers are helpful in clarifying these theories. I refer to the numerical example given by [the plaintiff's expert] in Assessment of Personal Injury Damages at 55-56. For discussion purposes, I assume the following: a family income of $50,000, of which $30,000 was earned by the deceased husband and $20,000 is earned by the surviving wife. Using a dependency rate of 70 per cent, the wife in a sole dependency scenario would receive a damages award based on .70 (dependency rate) x $30,000 (husband's income), which equals $21,000. Under a cross dependency approach, the wife would receive an award based on 70 per cent of the family income net of her own earnings ((.70 x $50,000) - $20,000 = $15,000). This is alternatively calculated as (.70 x $30,000) - (.30 x $20,000) = $15,000. This is equivalent to saying that she would receive 70 per cent of her husband's income, but have 30 per cent of her own income deducted, as it is assumed that is the portion of her income which she was spending on him. On the other hand, using Hechavarria's 60 per cent "modified" dependency rate, the 70 per cent of the husband's income consumed by the family would be reduced to 60 per cent, so the wife in this example would receive .60 x $30,000 = $18,000.