What are Family Law Act Damages and When Are You Entitled to Them?

Many tort claims in Ontario include not only the claims of the injured person him- or herself, but also claims for Family Law Act damages by members of his or her family.

Personal injuries don’t just affect the person who’s injured. If you or a loved one has ever been injured in a motor vehicle accident, slip and fall, or other incident, you know the emotional and financial toll that injury takes on the injured person’s family.

Ontario law recognizes the impact that injuries to a person have on his or her close family members and provides a remedy when those injuries are caused by the fault or negligence of another person.

The Family Law Act (FLA) is an Ontario statute that mostly concerns itself with family law matters—marriage and divorce, spousal and child support, and so on. But Part V of the Act concerns personal injury law: It permits certain close family members of an injured person to sue another whose intentional or negligent acts caused the injuries.

Many tort claims in Ontario include not only the claims of the injured person him- or herself, but also claims for Family Law Act damages by members of his or her family. Understanding what those damages are and when they can be pursued is critical to ensuring that the entire family can obtain justice following a personal injury.

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Family Law Act Damages in Tort Claims

Part V of the FLA defines the circumstances in which an injured person’s family members can recover their own damages resulting from the person’s injuries. Specifically, a family member can recover such damages if the following elements are all satisfied:

• The person was injured or killed
• By the fault or neglect of another person
• Under circumstances where the injured person is entitled to recover damages, or would have been entitled if not killed; and

In addition, the family member bringing the claim must be one of those described below.

What Family Members Qualify for Family Law Act Damages?

The close family members entitled to recover under the FLA are the injured person’s:

• Spouse;
• Children and grandchildren;
• Parents and grandparents; and
• Brothers and sisters.

The FLA provides a broad definition of spouse, child, and parent. “Child” includes a person whom a parent has demonstrated a settled intention to treat as his or her own child, except for foster children. Likewise, “parent” includes a person who has demonstrated such an intention with respect to a child. A formal adoption is not necessarily required.

A “spouse” is either of two persons who:

• Are married to each other;
• Have entered into a marriage that is voidable or void, in good faith on the part of the person relying on this definition;
• Are unmarried but have cohabited continuously for a period of at least three years; or
• Are unmarried but have cohabited in a relationship of some permanence, if they are the parents of a child as determined by the Children’s Law Reform Act, which uses a different definition of “parent” than the FLA’s.

This broad definition of spouse recognizes the ways in which the Canadian family is changing.

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What Damages Are Available Under the Family Law Act?

The FLA contains a non-exhaustive list of damages that an injured person’s family members can recover. Those damages include:

• Actual expenses reasonably incurred for the injured person’s benefit;
• Actual funeral expenses reasonably incurred (i.e., in a wrongful death case);
• A reasonable allowance for travel expenses actually incurred in visiting the injured person during his or her treatment or recovery;
• A reasonable allowance for lost income or the value of services if the family member provides nursing, housekeeping, or other services for an injured person as a result of the injury; and
• An amount to compensate for the loss of guidance, care, and companionship caused by the person’s injuries or death.

However, some limitations apply to FLA damages. First, any damage award under the FLA will be reduced to the extent the injured person was at fault in causing his or her own injuries—that is, the extent of his or her contributory negligence.

Second, just as the Supreme Court of Canada has placed a cap on non-pecuniary damages generally, the Ontario Court of Appeal has capped non-pecuniary damages in FLA claims. That cap was $100,000 in 2001, but it is subject to inflation.

Finally, in cases involving motor vehicle accidents, the Insurance Act imposes a deductible on non-pecuniary damages in some circumstances. In general, any non-pecuniary damages awarded under the FLA will be reduced by the statutory deductible, which is $18,991.67 for 2018. But this deductible will not apply if:

• The non-pecuniary damages awarded to a family member under the FLA exceed $63,304.51; or
• The injured person was not only injured, but died as a result of the accident.

In other words, in cases involving particularly serious injuries, the statutory deductible is waived.

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Getting Help with Family Law Act Claims

Making a Family Law Act claim requires adding one or more family members as plaintiffs in a personal injury lawsuit. That opens those family members to the entire litigation process. If the case cannot be settled out of court, that means they may have to go through the discovery process, including an examination for discovery, and testify at trial.

In some circumstances, the benefit of obtaining Family Law Act damages may be outweighed by the inconvenience of that process or other considerations. A personal injury lawyer can help an injured person and his or her family members think through those issues and decide on the best legal strategy for their claims.

Preszler Law Firm is an Ontario personal injury firm committed to helping families recover for injuries to their members. Our lawyers have decades of experience helping injured plaintiffs and their loved ones obtain compensation for their damages. If you or a family member has been injured by another person’s wrongful act, contact us today for a free consultation to understand how Ontario law, including the FLA, can help you recover.

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