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Making A Personal Injury Claim Under The Family Law Act

Written By: Jessica Golosky, Personal Injury Lawyer

Where do you turn when you need support, care, guidance, companionship, or love? Many people would answer “family” without missing a beat.

Family members not only share our happiness when times are good, but we often depend on them to see us through some of the most challenging periods in our life. When one member experiences a tragic loss, it can reverberate throughout the rest of the family unit – we empathize with them as they experience pain and perhaps feel a loss of our own.

Take, for example, a car accident, serious slip and fall, or another type of accident where someone caused or contributed to a family member’s injury or death through negligence. The victim of the accident may experience a debilitating personal injury that profoundly affects their life. A traumatic brain injury, loss of a limb, or paralysis could limit their ability to work or enjoy life as they had before.

In many cases, a family member who had grown to depend on the injured person for care, guidance or companionship will experience a significant loss as well—fortunately, the Family Law Act, R.S.O. 1990, c. F.3 (“F.L.A.”) allows individual family members to make claims against negligent parties for the losses they face due to their loved one’s injury.

This blog post will outline who can claim under the F.L.A. and what kind of compensation they can receive for their losses.

Who Is Considered Family?

Ideas of who constitutes a family are constantly in flux in Canadian society. While the F.L.A.’s definition of family is not as stringent as the compact nuclear family model, it does define family members in a particular way. It imposes limits to the extent that extended family members are eligible to make legal claims.

When a person is injured or passes away by fault or negligence of another under circumstances where that person is/would be entitled to recover damages, their spouse, children, grandchildren, parents, grandparents, and/or siblings are entitled to recover pecuniary and/or non-pecuniary losses resulting from the injury or death.

Under the F.L.A., a “spouse” is defined as either two persons who are married to each other or have entered into a voidable or void marriage, in good faith on the part of a person relying on this clause to assert any right. The definition of “spouse” includes a reference to a marriage that is actually or potentially polygamous if it was celebrated in a jurisdiction whose law system recognizes it as valid.

The “Support Obligations” of the Act, which details the right to make a claim for compensation for a family member’s personal injury, also permits either of two persons who are not married to each other and have cohabited continuously for no less than three years, or who are in a relationship of some permanence if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act, to make a claim.

The F.L.A. also provides some flexibility in terms of child-parent relationships. For example, it defines a “child” as 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.

Case law has clarified how courts should interpret some of these terms. Unfortunately, some family configurations that do not conform to these definitions are excluded under the Act. Close relationships among persons considered part of an extended family or partners who are not deemed to meet the definition of spouse (such as non-cohabiting partners) are not eligible to make claims, even if facts suggest these persons have a closer relationship to an injured person than an eligible family member.

What Damages Can Be Claimed?

The F.L.A. outlines the types of claims that can be advanced by family members, including:

  • actual expenses reasonably incurred for the benefit of the person who was injured or killed;
  • actual funeral expenses reasonably incurred;
  • a reasonable allowance for travel expenses incurred in visiting the person during his or her treatment or recovery;
  • where, as a result of 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
  • 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.

If the court finds there is contributory negligence on the part of the injured or killed person – that is, if the injured person or the person who passed away was partially responsible for the incident – then the right to claim damages is subject to any apportionment of fault.

Courts have imposed general limits or conventional sums, subject to inflation, on non-pecuniary damages (non-quantifiable losses), however, recent case law (Robins v Wagar, 2017 ONSC 3356) has used fact-specific findings to award greater amounts to F.L.A. claimants in exceptional circumstances. In the case of motor vehicle accidents specifically, the Insurance Act, R.S.O. 1990 c. I.8 also imposes statutory deductible on non-pecuniary damages for claims beneath a certain threshold of injury or damages.

Compassionate Personal Injury Lawyers

Canadian hockey great Guy Lafleur once commented that “when trouble comes, it’s your family that supports you.” If a tragic accident injures or kills a member of your family, you lose part of that support system.

No amount of money can ever replace the support, care and love you receive from family, yet compensation may help you as you take the necessary time to grieve your losses and rebuild your life.

While the legal definition of family may not ultimately be flexible enough to encompass how you define your family, it is still worth speaking to a personal injury lawyer to determine whether you may have grounds for a claim.

At Gluckstein Lawyers, our commitment to full circle care means that we are here to help you in all the steps on your road to recovery – from claiming damages to finding counselling and care as you seek to move past a traumatic event. To learn more about how we can work for you, contact me at 1-866-308-7722 or email me at golosky@gluckstein.com.



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