Today's trial.

• Author: Mitchell, Teresa
• Position: Ferraiuolo v. Olson, 2004 ABCA 281

"What's gone and what's past help Should be past grief"

--Shakespeare: The Winter's Tale

Every day in courtrooms across Canada hundreds of judges hear the stories of thousands of cases. All involve human drama to varying degrees, but most cases are mundane and of limited interest except to the participants. After hearing all the evidence, judges often reserve their judgments and return to their offices to carefully craft their decisions. These decisions are usually concise and clear, but workmanlike, befitting the subject of the case. But every once in a while, a judgment will stand out: it touches our hearts and changes our way of thinking. The Halpern decision (See "Today's Trial", LawNow, 27:2 October/November 2002) by the Ontario Court of Appeal about same-sex marriage was such a decision. So, too, is a recent decision by the Alberta Court of Appeal about the relationship of children, parents, and grief.

The plaintiff in this case was a 57-year-old man named Dante Ferraiuolo. He was the only surviving child of Maria Rosa Ferraiuolo, an 84-year-old widow who was killed while crossing the street. Her daughter had predeceased her, and she and her son were exceptionally close, seeing each other almost daily and attending church together every Sunday. Dante Ferraiuolo brought an action against the driver who killed his mother for loss of her pension income and also, under Alberta's Fatal Accidents Act, for his grief and his loss of the guidance, care, and companionship of his mother. At the rime of his mother's death, however, the provincial law limited such claims to children who were under the age of 18, or were unmarried and under the age of 26. Mr Ferraiuolo argued that the restrictions due to age and marital status infringed his equality rights under the Charter of Rights. (By the time the Alberta Court of Appeal heard his case, the restriction on age had been removed from a revised statute.)

What is interesting about this decision is not so much the discussion of the law and the application of the Charter but rather the discussion of the human, emotional toll of his mother's death on Mr Ferraiuolo, and the nature of grief itself. Indeed, Chief Justice Catherine Fraser begins her judgment: "This case is about grief--the grief and loss felt by surviving children when their parent is killed through the wrongful act of another. It is also about which children grieve and which ones are entitled to sue the wrongdoer for the grief they suffer...