Compensation in case of death
35.(1) Where death results from an injury to a worker, a spouse who survives the worker shall be entitled to, (a) compensation payable by way of a lump sum of $40,000 increased by the addition of $1,000 for each year of age of the spouse under forty years at the time of the worker’s death or reduced by the subtraction of $1,000 for each year of age of the spouse over forty years at the time of the worker’s death, but in no case shall a spouse receive a lump sum payment of more than $60,000 or less than $20,000; (b) compensation by way of periodic payments in the manner and to the extent provided in this section; and (c) the same counselling and vocational assistance as would be provided to a worker under section 52. Vocational rehabilitation (2) The spouse of a deceased worker may apply to the Board within one year after the worker’s death for a vocational rehabilitation assessment, and after an assessment the Board shall provide a vocational rehabilitation program to the spouse if the Board considers it appropriate to do so. R.S.O. 1990, c. W.11, s. 35 (1, 2). Idem (3) Subsections 53(11), (12) and (13) apply with respect to a vocational rehabilitation program provided to a spouse. R.S.O. 1990, c. W.11, s. 35 (3); 1994, c. 24, s. 6. Spouse with children (4) Where a deceased worker is survived by a spouse and one or more children, compensation in an amount equal to 90 per cent of the deceased worker’s net average earnings at the time of injury shall be payable to the spouse until the youngest child reaches the age of nineteen. Spouse, no children (5) Where the deceased worker is survived by a spouse and no child or children, the spouse shall be entitled to a periodic payment of 40 per cent of the net average earnings of the deceased worker adjusted by the addition of 1 per cent of the net average earnings for each year of age of the spouse over forty years at the time of the worker’s death or by the subtraction of 1 per cent of the net average earnings for each year of age of the spouse under forty years at the time of the worker’s death, but in no case shall the spouse receive a periodic payment of more than 60 per cent or less than 20 per cent of net average earnings of the deceased worker. Dependent children, no spouse (6) Where there is no spouse entitled to compensation or the spouse dies and the deceased worker, (a) is survived by only one dependent child, the dependent child is entitled to compensation equal to 30 per cent of the net average earnings of the deceased worker at the time of injury; or (b) is survived by more than one dependent child, the dependent children are entitled as a class to compensation equal to 30 per cent of the net average earnings of the deceased worker at the time of the injury, plus an additional amount of 10 per cent of the net average earnings of the deceased worker at the time of injury for each additional dependent child over one to a maximum of 90 per cent of the net average earnings. Idem (7) Where, at the time of the death of the worker, there is no spouse entitled to receive a lump sum payment under clause (1)(a), the worker’s dependent child or children shall be entitled to receive in aggregate a total lump sum payment of $40,000 in addition to the compensation payable under subsection (6). Dependants, no spouse or children (8) Where a deceased worker is not survived by a spouse or by a dependent child or children and there are dependants, the dependants are entitled to reasonable compensation proportionate to the loss occasioned to the dependants by the death as determined by the Board, but in no case shall the total compensation exceed 50 per cent of the net average earnings of the deceased worker at the time of injury, and the compensation shall be payable only so long as the worker could have been reasonably expected to continue to support the dependant or dependants if the deceased worker had not suffered injury. Burial expenses (9) Payment shall be made for the necessary expenses of burial or cremation of a deceased worker, as determined by the Board, which amount shall not be less than $1,500, and, where owing to the circumstances of the case the body of a worker is transported for a considerable distance for burial or cremation, a further sum, as determined by the Board, shall be paid for the necessary extra expenses so incurred. Recalculation of spousal periodic payments (10) Subject to subsection (11), where compensation has been paid under subsection (4) and no child is under the age of nineteen years, the spouse shall be entitled to payment of compensation under subsection (5) as if the worker had died on the day after the day the youngest child then living reached the age of nineteen years. Education of children (11) Where the Board is satisfied that it is advisable for a child or children over the age of nineteen to continue education, the Board shall pay in respect of each such child 10 per cent of the net average earnings of the worker at the time of the injury but the total benefit in respect of the spouse and such children shall not exceed 90 per cent of the net average earnings of the worker at the time of the injury. When child payments cease (12) Subject to subsections (10), (11) and (14), a monthly payment in respect of a child shall cease when the child attains the age of nineteen years or when the Board is satisfied that it is not advisable for a child over the age of nineteen to continue receiving an education. Person in the role of parent (13) Where a child or children is or are entitled to compensation under this section and is or are being maintained by a suitable person who is acting in the role of parent in a manner the Board considers satisfactory, such person while so doing is entitled to receive the same periodic payments of compensation for himself or herself and the child or children as if the person were a spouse of the deceased and in such case the child’s or children’s part of such payments shall be in lieu of the periodic payments that the child or children would otherwise be entitled to receive and, where there is more than one child and more than one person acting in the role of parent, the Board may in its discretion apportion the payments under this section accordingly and, where this subsection applies, the maximum amount payable under this section shall not exceed 90 per cent of the net average earnings of the deceased worker at the time of injury. Invalid child (14) Compensation is payable to an invalid child without regard to the age of the child and shall continue until the child ceases to be an invalid or dies. Deductions for C.P.P. and Q.P.P. payments (15) In calculating the compensation payable by way of periodic payments under this section, the Board shall have regard to any payments of survivor benefits for death caused by injury that are received under the Canada Pension Plan or the Quebec Pension Plan in respect of the deceased worker. Separated spouse (16) A person who ceased to be a spouse by reason of living separate and apart from the deceased worker at the time of the worker’s death is entitled to compensation under this section as a spouse where the worker was or would have been required had the worker not died to make support, maintenance or alimony payments under a separation agreement or judicial order. Idem (17) Where there is more than one person entitled to receive periodic or lump sum payments under this section as a spouse and the periodic payments to those persons as provided in this section would in total exceed 90 per cent of the net average earnings of the deceased worker at the time of injury and, or, the lump sum payments to these persons as provided in this section would in total exceed $60,000, the total periodic payments shall be limited to 90 per cent of the net average earnings and the total lump sum payments shall be limited to $60,000 and the Board shall apportion payments that are so limited between those entitled in accordance with, (a) the relative degrees of financial and emotional dependance on the deceased at the time of death; (b) the period of separation, if any, from the deceased at the time of death; and (c) the size of the relative entitlements of those so entitled without reference to this subsection. Adjustment (18) The amounts payable under this section as periodic payments shall be increased if the worker’s death occurred on or before the 30th day of June, 1985 by adding thereto a factor of 5 per cent effective the 1st day of July, 1985, but the total periodic payments after the application of this subsection shall not exceed 90 per cent of the net average earnings of the deceased worker at the time of injury, calculated as if the worker’s average earnings were the maximum amount determined under section 38. R.S.O. 1990, c. W.11, s. 35 (4-18).