When a family member suffers serious personal injuries in an accident, the injuries can result in a disruption to the equilibrium of not only the affected individual’s life but also the lives of those dependent on them. In Ontario, loved ones who have been impacted as a result of another person’s injuries but were not involved in the accident or sustain injuries themselves, such as children, may commence a claim under the Family Law Act

This blog will explore consequential claims under the Family Law Act in Ontario, specifically focusing on loss of guardianship. It will also review these claims in light of a recent decision from the Ontario Superior Court of Justice in which an employee was injured during her employment and sustained serious injuries. As a result, she commenced a claim on behalf of her daughter for loss of guidance, care and companionship under the Family Law Act

Court Approval of a Settlement Under Rule 7.08 

Parties involved in a lawsuit, particularly in the context of personal injury claims, may decide to settle the claim outside of court for various reasons, such as mitigating the risk of losing in court and ending both the financial and emotional strain involved in ongoing litigation. When all parties to the litigation are capable adults, they may agree to and implement a settlement. However,  if a party to the litigation is under disability, such as a minor, and is represented by a litigation guardian, rule 7.08 of the Rules of Civil Procedure requires the proposed settlement first to be approved by a judge. 

Rule 7.08 states that “[n]o settlement of a claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge.” Rule 7.08(4) sets out the required information needed before a settlement can be approved:

“(4) On a motion or application for the approval of a judge under this rule, there shall be served and filed with the notice of motion or notice of application,

(a)  an affidavit of the litigation guardian setting out the material facts and the reasons supporting the proposed settlement and the position of the litigation guardian in respect of the settlement;

(b)  an affidavit of the lawyer acting for the litigation guardian setting out the lawyer’s position in respect of the proposed settlement;

(c)  where the person under disability is a minor who is over the age of sixteen years, the minor’s consent in writing, unless the judge orders otherwise; and

(d)  a copy of the proposed minutes of settlement.”

Employee injured during course of employment

In the case of Atkinson v 1884223 Ontario Limited, the plaintiff was a fitness instructor employed by the defendants. On May 19, 2016, the plaintiff employee sustained personal injuries, which she claimed were due to particular instructions given to her by her employers. She was hospitalized for two days and sustained injuries to her back, and symptoms radiated down her legs and arms. She was also told that she had a herniated disc and underwent surgery on September 26, 2017. The plaintiff subsequently commenced a personal injury claim against her employer.

In December 2017, the plaintiff was involved in a car accident where she sustained a fracture to her leg. She was also injured in a slip and fall, resulting in personal injuries. However, it was unclear whether these subsequent injuries contributed to her symptoms at the time of the hearing. 

Minor daughter commences claim for loss of guidance, care and companionship

The plaintiff also commenced a claim on behalf of her minor daughter, who did not suffer any injuries, under the Family Law Act based on a “somewhat diminished amount of guidance, care and companionship received from her mother.” When the accident occurred, the minor plaintiff’s parents had separated and shared interim joint custody (now referred to as decision-making responsibility). After the work-related incident, the minor employee spent more time with her father than the plaintiff employee.

The Superior Court of Justice described the family law litigation as “acrimonious.” It noted that in 2016 after the plaintiff sustained her work injuries, the minor plaintiff began living with her father full-time permanently. However, this was not due to the plaintiff’s accident-resulting injuries. Instead, the plaintiff believed that the minor plaintiff’s father persuaded the minor plaintiff to live with him in an attempt to deprive the plaintiff of parenting time and decision-making responsibility. Therefore, the Court noted that the minor plaintiff’s claim for loss of guidance, care and companionship arose from “unfortunate family dynamics.”

Court approves minor derivative claim settlement

Under rule 7.08, the Court was required to approve the settlement, of which the agreed settlement amount was $100,000 inclusive of all claims costs and HST. Of this amount, $5,000 was to be paid to the Court to the credit of the minor plaintiff. Counsel for the plaintiff employee believed this proposed settlement amount was fair and reasonable as the minor plaintiff resided with her father, rather than the plaintiff, for most of the relevant time period. The plaintiff employee agreed with this, and the Court noted that the minor plaintiff also consented to the proposed settlement.

Upon review of the case, the Court determined that all requirements of rule 7.08 were met and, therefore, approved the settlement. The Court also acknowledged that the minor plaintiff would pay no disbursements of fees. 

What Plaintiffs Should Know

If a non-injured party seeks to commence a claim under Ontario’s Family Law Act as a result of a loved one’s accident-related injuries, they should be mindful that their claim and proposed settlement, if they are under a disability, will be subject to scrutiny and approval by the courts to determine whether it is fair and reasonable. In assessing a proposed settlement under Rule 7.08, the court will conduct a balancing act between the public policy reasons for encouraging settlements outside of court while ensuring that the settlement adequately protects the needs of the incapable party. However, courts can order parties to return to negotiations or proceed with litigation if the settlement is not something that a reasonable person would consent to for themselves.

The Personal Injury Lawyers at Tierney Stauffer LLP Provide Exceptional Representation in Serious Personal Injury Claims

Accident-related injuries resulting from a car accident, work accident, or slip and fall can have serious, far-reaching consequences on not only the injured individual but their loved ones and those who rely on them. As a result, non-injured individuals may seek to commence a claim for compensation resulting from a loss of guidance, care and companionship. At Tierney Stauffer LLP, our skilled personal injury lawyers will help you and your loved ones navigate the complex claims process. By letting our team manage your injury claim, you can prioritize your health and recovery to move forward. Contact us at 1-888-799-8057 or online to schedule an initial consultation and discuss your potential claim with a member of our team.


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