What are Family Law Act Claims in Ontario?
Authored By: Sierra Forster
Most people know that if someone is injured due to another person’s negligence, they can take legal action to seek compensation from the person who injured them. However, when someone is injured, often it is not just them who is impacted; family members can also be significantly affected by an injury to a loved one. Fortunately, Ontario law recognizes this and allows family members to bring claims under the Family Law Act (the “Act”). This legal framework enables families to seek compensation if a loved one is injured by the negligence of another.
Who is Eligible to bring a claim?
Part V of the Act deals specifically with personal injury litigation. It provides certain family members the ability to pursue a claim against the at-fault negligent parties, even though the physical injury occurred to another person. Specifically, section 61(1) of the Act entitles a spouse, child, grandchild, parent, grandparent, brother or sister of the injured person to pursue a claim. To qualify as a spouse, you must meet the criteria outlined in Part III of the Act, which defines a spouse as follows:
i. one of two persons who are married to each other, or who are not married but have been cohabiting for a minimum of 3 years or,
ii. who are in some relationship of permanence and are parents of a child together as set out in section 4 of the Children’s Law Reform Act.
Furthermore, the Act defines a child to include a person whom a parent has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody.
What type of damages are recoverable?
The Act provides the following damages as recoverable:
(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.
The amount you may be able to claim varies widely and is determined on a case-by-case basis. However, specifically for “loss of guidance, care and companionship” in 2021 the Ontario Court of Appeal in Moore confirmed that there is no maximum cap on damages awarded under this heading. In that case, a young woman had perished in a house fire and her parents were awarded $250,000 each for loss of guidance, care, and companionship. These amounts were a marked departure from previous awards in other cases for loss of care, guidance, and companionship, which have historically been much lower.
How much time do I have to bring my claim?
The Limitations Act provides that a claim should be commenced within two years of being discovered. The discoverability principle is well established within Canadian law. In Grant Thornton LLP v New Brunswick, the Supreme Court of Canada unanimously held that a claim is discovered, and therefore, the limitation period beings to run, when the plaintiff knows, or ought to know, the material facts upon which a plausible inference of liability on the defendants part can be drawn. In cases of personal injury, often this means the claim is to be brought within two years of the accident causing the injury. For example, when someone is injured in a motor vehicle accident, generally the time starts to run from the date of the accident. In other cases, time may not start to run until sometime after the event in question, when you become aware of the negligence and/or injury. This is often the case in medical negligence actions. The start date of a limitation period can sometimes be difficult to determine, so it is important to get legal advice well ahead of the potential limitation date.
Sources:
- 1. Family Law Act, RSO 1990, C F.3, Part V.
- 2. Ibid
- 3. Ibid at s 61(1).
- 4. Ibid at s 29.
- 5. Ibid at s 1(1).
- 6. Ibid at s 61(2).
- 7. Moore v 7595611 Canada Corp., 2021 ONCA 459 (CanLII) para 28 [Moore].
- 8. Ibid at para 4.
- 9. Limitations Act, 2002,SO 2002, c 24, Sch B, s 4.
- 10. Grant Thornton LLP v New Brunswick, 2021 SCC 31 at para 40.
