When someone suffers a catastrophic brain injury in a motor vehicle collision, one of the most vital lifelines available under Ontario’s auto insurance system is the Attendant Care Benefit. This benefit pays for the personal support workers, aides, and supervision required to keep an injured person safe in their daily life.
For years, however, a frustrating Catch-22 has plagued seriously injured claimants: What happens when an insurer wrongfully cuts off your attendant care funding, forcing you to survive on your own or rely on exhausted family members—and then argues years later that because you "got by" without professional care, you obviously didn't need it?
In a landmark ruling—Goovaerts (Litigation Guardian of) v. Motor Vehicle Accident Claims Fund (2026 ONSC 1687)—the Ontario Superior Court of Justice (Divisional Court) put a stop to this logic. For accident victims and their families, this decision is a major victory that reinforces how invisible brain injuries and attendant care needs must be evaluated.
The Story Behind the Case
In June 1999, 27-year-old Kevin Goovaerts suffered a devastating, permanent traumatic brain injury when he fell from the back of a moving pickup truck. The impact damaged his orbitofrontal lobe—the area of the brain responsible for executive functioning, impulse control, planning, and safety judgment.
Initially, the Motor Vehicle Accident Claims Fund ("the Fund") recognized the severity of his condition and paid for attendant care, including 24-hour supervisory support. However, in November 2000, the Fund abruptly cut those benefits without conducting a proper medical assessment.
Over a decade later, the Fund admitted it had made a mistake in stopping the benefits. Mr. Goovaerts’ legal team submitted an occupational therapist’s assessment (known as a Form 1) showing he required $5,575.31 per month in retroactive attendant care. The Fund pushed back, offering a mere $120.40 per month—about $4 a day—and argued that their assessor saw no need for severe brain injury supervision.
Why the massive gap? Because in the years after his funding was cut off, Mr. Goovaerts had physically recovered enough to perform basic physical tasks and had even lived on his own for stretches of time. When the dispute went to the Licence Appeal Tribunal (LAT), the adjudicator largely agreed with the Fund’s restrictive view, essentially looking at what care Mr. Goovaerts wasactually receiving during those years rather than what he medically needed.
What the Court Decided
On appeal, a three-judge panel of the Divisional Court threw out the Tribunal’s decision and ordered a brand-new hearing before a different adjudicator.
The Court made a crucial legal distinction that every injury claimant should know: assessing attendant care is about the care a person needs, not the care they were forced to make do with.
By judging Mr. Goovaerts based on how he survived after his funding was improperly cut off, the Tribunal committed a serious legal error. Furthermore, the decision highlights a persistent misunderstanding of traumatic brain injuries (TBIs). Unlike a spinal cord injury or an amputation, an orbitofrontal brain injury is largely "invisible." A survivor may be able to walk, dress themselves, and make a sandwich, yet lack the executive brain function to respond to an emergency, manage behavioral risks, or live safely without regular supervision and cueing.
What This Means If You Have a Similar Claim
If you or a loved one are fighting an auto insurer over attendant care benefits—especially involving a traumatic brain injury or psychological trauma—the Goovaerts decision gives you powerful protection:
You Cannot Be Penalized for "Making Do" When an insurance company denies a benefit, most families do not have tens of thousands of dollars sitting in the bank to pay out-of-pocket for 24-hour private nursing. People improvise. Spouses burn the candle at both ends, or injured victims live in precarious, unsafe conditions because they have no choice. Under Goovaerts, an insurer cannot starve a claimant of benefits and then use the claimant’s forced independence as "proof" that the care was not necessary.
Physical Independence Does Not Equal Mental Safety Insurance assessors frequently try to slash Form 1 attendant care budgets by pointing out that a claimant can physically bathe, feed, or dress themselves. This decision reminds adjudicators that supervisory care—having someone there to provide prompts, structure, emotional regulation, and safety monitoring—is every bit as real and compensable as hands-on physical care.
Insurer Assessors Must Account for Neurological Reality In Goovaerts, the insurer’s assessor completed a Form 1 that failed to properly account for his documented neurological impairment. If an insurer sends you to an Independent Medical Examination (IME) where the assessor ignores the day-to-day cognitive fallout of a frontal lobe injury, that report is vulnerable to being challenged in court.
How to Protect Your Claim
If you are navigating an accident benefits claim for a brain-injured family member, documentation is your strongest asset. Don’t just tell your occupational therapist and doctor what the injured person cannot physically do. Keep a detailed daily journal of the "invisible" interventions:
How often do they need to be reminded to take medication, turn off the stove, or lock the door?
What happens when their routine is disrupted and nobody is there to redirect them?
What safety scares or lapses in judgment have occurred when they were left unattended?
Insurance law in Ontario is complex, and the system often tests the endurance of injured victims. As the Divisional Court’s decision in Goovaerts shows, however, the law ultimately requires insurers to evaluate your recovery based on your true medical needs—not on how hard you have had to struggle without their help.