The negative consequences of personal injuries are rarely experienced individually, as loved ones and dependents may become financially or emotionally burdened by the incident.
Fortunately, Ontario law recognizes this and provides a statutory remedy for close family members of a person who is injured by an international or negligent act. Whether a family member’s injury occurs in a motor vehicle accident or otherwise, a close relative may be entitled to a range of compensable damages through this mechanism. Although the Family Law Act (“FLA”) largely deals with family law matters, Part V of the legislation concerns itself with personal injury litigation. Essentially, it entitles certain individuals to pursue claims against at-fault parties for their damages, despite the fact that the physical injury occurred to another person: 61(1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse … , children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover… Family Law Act , RSO 1990, c F.3. This provision establishes the legal right of an individual to pursue an FLA Claim .
Section 61(1) can be broken down into a set of finite conditions. If these conditions are satisfied, then the family member advancing the FLA Claim is entitled to maintain an action for damages:
To receive damages, the FLA claimant must prove that a loss occurred. Although the actual physical injury did not happen to them, there are many heads of damages that may be recoverable:
61(2) The damages recoverable in a claim under subsection (1) may include ,
(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.
Family Law Act , RSO 1990, c F.3.
The above categories include both pecuniary damages (i.e. tangible damages such as income loss) and non-pecuniary damages (i.e. intangible damages such as loss of guidance, care and companionship). These are also known as damages for “pain and suffering.”
While loss of income (s. 61(2)(d)) usually provides larger FLA damages, claims for loss of guidance, care and companionship (s. 61(2)(e)) are quite common. However, non-pecuniary awards for loss of guidance, care and companionship are subject to a pair of barriers:
As a result of these impediments, significant attention must be paid to whether or not it is worthwhile to pursue FLA claims focusing on non-pecuniary damages. A strategic cost-benefit analysis is required to account for the deductible, the cap, and other legal fees/disbursements, in order to determine whether an FLA claim is beneficial in the context.
To speak with a personal injury lawyer in Barrie about your FLA claim, call Littlejohn Barristers today.
