People are tragically injured or killed in motor vehicle accidents all too often. Often overlooked, however, is the way these losses directly affect the families of accident victims and their right to advance a claim under the Family Law Act in Ontario. This article explains who is eligible to advance a lawsuit and for what.
Who may claim?
Those who fall into one of the following categories at the time of the accident may bring a claim:
Spouse
The Act considers a spouse of the injured or deceased person to be anyone who:
- was married to them;
- lived continuously with them for three or more years; or,
- was in a relationship of some permanence, if they were the parents of a child including an adopted child.
Child or parent
In addition to biological children, the Act includes as a child any person whom a parent has demonstrated a settled intention to treat as a child of his or her family.
Similarly, in addition to a biological parent, a parent includes a person who has demonstrated a settled intention to treat a child as a child of his or her family.
Grandparents, grandchildren and siblings
These terms are not defined by the Act. Again, in addition to biological relationships, the prevailing practice is to consider anyone who the injured or deceased party had a settled intention to treat each other as family.
For clarity, a biological relationship is not necessary to be a potential claimant under the Act.
What may I claim?
The right to advance such a claim comes from the Act and includes the following:
Loss of guidance, care and companionship
The Act permits a family member to claim for the loss of “guidance, care and companionship” they might reasonably have expected to receive from the injured or deceased person if the injury or death did not occur. The nature of such losses include the following examples:
- Guidance: education, moral teaching, and discipline;
- Care: food, transportation, assistance, and protection;
- Companionship: shared experiences related to holidays, birthdays, weddings, etc.
The value of these claims varies depending on the nature of your relationship with the injured or deceased person.
Claims for services provided
Where a family member provided services as a result of the injury, they may recover either a reasonable allowance for their loss of income or the value of the services provided (e.g., housework, running errands, cooking, yard work, or personal care assistance).
In the case of a fatality, the surviving family member can bring a claim for the value of the work that the deceased person would have performed for the benefit of the family member had they not been killed (e.g., services related to caregiving, housekeeping or handyman tasks).
Loss of income and dependency claims
Some family members will suffer a loss of income because of the injury or fatality of a loved one. This can include missed time at work for the claimant or a loss of the shared family income the injured or deceased individual would have contributed had they not been injured or killed.
Actual and reasonable expenses
Finally, the Act allows recovery of actual expenses reasonably incurred by family members for the benefit of the person injured or killed. This includes a reasonable allowance for travel expenses actually incurred by visiting the injured family member, and actual funeral benefits that were reasonably incurred in the event of a fatality.
Please contact one of the lawyers at Siskinds LLP for a free consultation to discuss your potential claim.