Being injured in an accident is obviously traumatic and devastating for the person involved. But personal injury doesn’t just affect the person involved in the accident – it can also impact their loved ones. For this reason, Ontario law provides a remedy to certain family members where the injury is caused by the negligence of another person. This article provides an overview of some of the relevant provisions of the Family Law Act 1990.

In what circumstances can a family member make a claim under the Family Law Act?

Family members are often impacted when a person is injured in a motor vehicle accident, as a result of medical malpractice, following a trip, slip and fall, or in another type of incident. 

Under Part V of the Family Law Act 1990 (Act), if a person is injured or killed by the fault or neglect of another under circumstances where they are entitled to recover damages (or would have been entitled if not killed), certain family members are entitled to recover their pecuniary loss resulting from the injury or death from the person responsible for the injury or death. This is a derivative claim created by the Family Law Act – the family member need not have their own direct claim for damages (for injuries to their person or property) against the person at fault. 

Which family members are entitled to bring a claim?

The Family Law Act permits claims by the spouse, children, grandchildren, parents, grandparents, brothers and sisters of the person who was injured or killed. 

Some of these relationships are liberally defined. The “spouse” of the injured or deceased is the person:

  • married to them;
  • who entered into a marriage with them that is voidable or void, in good faith on the part of the person relying on this to assert a right;
  • who cohabited with them continuously for a period of not less than three years; or
  • who cohabited with them in a relationship of some permanence, if they are the parents of a child (as determined under the Children’s Law Reform Act 1990).

Biological relationships are not necessary to make a claim under the Family Law Act. For example, “child” includes a person whom a parent has demonstrated a settled intention to treat as a child of their family, except under a foster care arrangement. Similarly, “parent” is defined to include a person who has demonstrated a settled intention to treat a child as a child of their family, except under a foster care arrangement. 

What type of damages can be recovered?

The Family Law Act provides the following non-exhaustive list of damages that may be recovered:

(a) actual expenses reasonably incurred for the benefit of the person injured or killed;

(b) actual funeral expenses reasonably incurred;

(c) a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;

(d) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and

(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.

As can be seen, in addition to claims for actual and reasonable expenses, claims can be made for services provided by the family member as a result of the injury, such as nursing or housekeeping. This can take the form of damages for the loss of income or for the value of the services provided. Where the person has died, a claim can be brought by a family member for the value of services that would have been provided if they had not been killed.

Claims can also be made for non-pecuniary losses or “for the loss of guidance, care and companionship” to the family member. A case-by-case approach is taken to the quantification of these damages, depending on the nature of the relationship.

In what circumstances can the amount of damages be reduced?

There are a number of circumstances in which a court will reduce the amount of damages payable. This is a complex area and we suggest speaking with a personal injury lawyer for advice on your unique circumstances.

To give two examples:

  • damages are reduced if the person who was injured or killed contributed to the situation resulting in their injury; and
  • where the injury or death was caused by a motor vehicle accident, the Insurance Act 1990 applies in some circumstances to reduce non-pecuniary damages by a statutory deductible. 

How long do I have to bring a claim?

The limitation period that governs the action of the person that was injured or killed also governs the claim made by the family member under the Family Law Act. This period is determined by the Limitations Act 2002

The basic limitation period, to which there are numerous exceptions, is that a proceeding must be commenced by the second anniversary of the day on which the “claim was discovered”. A claim is discovered on the day that the person with the claim first knew of four matters: (i) that the injury, loss or damage occurred, (ii) that it was contributed to by an act or omission, (iii) that the act or omission was that of the defendant, and (iv) that a proceeding would be an appropriate means to seek to remedy it. However, if a reasonable person with the abilities and in the circumstances of the person with the claim ought to have known of these matters on an earlier day, that earlier day is the day that the claim is deemed to have been discovered. 

Contact Tierney Stauffer LLP for Advice on Family Law Act Claims in Personal Injury Matters

If your family member has been injured or killed in an accident, you don’t have to deal with everything on your own. The team at Tierney Stauffer LLP will help you secure appropriate compensation. You might have a claim under the Family Law Act and/or other routes. Contact our personal injury lawyers at 1-888-799-8057 or reach out online to set up a consultation today.

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