Who Can Make a Claim Under the Family Law Act?

Not only can personal injuries be difficult for the person who has been injured, but often, their family members may suffer a loss themselves. That is why, if it is established that their loved one was injured due to the negligence of another, certain family members may be entitled to compensation.

According to Section 61 of the Family Law Act, if a person is injured or killed because of someone else’s negligence and the injured person is entitled to recover compensation (or would have been entitled to recover compensation if they had not been killed), then the spouse, children, grandchildren, parents, grandparents, brothers and sisters of the injured person are also entitled to compensation from the person who injured their family member. It is important to understand that the claims of family members in these circumstances are derivatives of the injured person’s claim. To seek compensation directly, the family member(s) must be personally named in either the injured person’s lawsuit or in a lawsuit of their own against the person whose fault or neglect caused the injuries.

When a loved one has been injured and is entitled to compensation from the person(s) who are at-fault, family members can claim a type of general damages for pain and suffering, intended to compensate them for the loss of guidance, care, and companionship they might reasonably have expected to receive if their relative’s injury or death had not occurred. Family members may also be able to claim expenses incurred for the benefit of the injured person, funeral expenses, travel expenses while visiting the injured person during their treatment or recovery, their loss of income for time taken off work to care for the injured person, losses related to missed work opportunities due to the injured person’s injuries, and even the value of services for nursing, housekeeping, or other services provided for the injured person.

In essence, family members could be able claim anything that can be reasonably connected to the injured person’s injuries or death.  That much is straightforward.

However, for the purpose of determining who can make a claim for damages under the Family Law Act, in some circumstances, it can be difficult to know who is considered a “spouse,” and who is considered a “parent.”

Who is a “Spouse”?

The Family Law Act provides several definitions of “spouse” for the purpose of establishing who can make a claim based on the personal injuries of a family member under section 61 of the Family Law Act.

A spouse is one of two people who are currently married. The person to whom an injured person is currently married may be entitled to compensation from the person that caused the injury if their husband or wife is entitled to compensation themselves.

However, two people do not technically have to be married to meet the Family Law Act’s definition of “spouse.” The legal definition of this term also encompasses two people whose marriage is “void or voidable,” so long as the person who intends to rely on the Family Law Act to make a claim entered the marriage-like relationship in good faith.

A “void or voidable” marriage is not quite the same as a divorce. A divorce refers to a marriage that existed at one time but then came to a formal end. Meanwhile, a void or voidable marriage refers to a marriage that was technically flawed from the outset and, therefore, never existed in the first place.  For example, if the marriage ceremony was incomplete, if one or both spouses were under the age of majority when they married, if they lacked the mental capacity to consent to marriage, or were related to one another within prohibited degrees, the marriage might be considered “void or voidable.”

With all of that said, so long as the person intending to make a claim genuinely believed that they were entering into the marriage, they would meet the definition of “spouse,” and their claim for damages under the Family Law Act relating to the injuries of their spouse may be allowed. That said, it is not permissible to enter a marriage-like relationship simply for the purpose of advancing a claim under the Family Law Act in these circumstances.

Notably the Family Law Act does not define two people who have divorced as “spouses” for the purpose of advancing a claim under the Family Law Act.

The Family Law Act contains additional definitions of “spouse.” These include either of two people who are not married but have lived together continuously for at least three years and either of two parents of a child who are interdependent and have lived together for less than three years.

Who is a “Parent of a Child?”

The definition of “parent of a child” is contained in the Children’s Law Reform Act. Like the definition of “spouse,” the definition of “parent” is not as straightforward as one might think. For example, a person who provides reproductive material or an embryo for use in the conception of a child through assisted reproduction is not necessarily considered a parent of a child by law. Furthermore, the individual who gives birth to a child is not the parent of the child if they relinquished parentage through a written surrogacy agreement, or if the child was formally adopted.

The person who gives birth to a child is a parent of the child, unless they have specifically agreed to relinquish parenthood as part of a surrogate agreement, or if a Court has made a declaration otherwise. The person whose sperm resulted in the conception of a child conceived through sexual intercourse is also considered to be a parent of the child.

In the case of a child conceived through sexual intercourse, the person whose sperm resulted in the conception of a child is presumed to be either:

• The birth parent’s spouse
• The person who was the birth parent’s spouse within 300 days of the child’s birth
• The person who was living in a conjugal relationship with the birth parent (i.e., living in the same household as part of a committed relationship and was financially, socially, emotionally and physically interdependent with the birth parent within 300 days of the child’s birth)
• The person who has officially certified the child’s birth as a parent of the child
• The person who has been deemed by a Court of competent jurisdiction to be the parent of the child.

However, if more than one of these circumstances existed at once, there is no presumption of who the parent is.

Furthermore, before the child is conceived, if the person whose sperm is used to conceive the child through sexual intercourse and the birth parent agree in writing that the person does not intend to be the parent of the child, they will not be considered the “parent of the child.”

Sexual intercourse is not the only way children are conceived, and there are specific definitions for who is the parent of a child in those circumstances. For example, if a birth parent conceived a child through assisted reproduction or insemination by a sperm donor and the birth parent had a spouse at the time, then their spouse is considered a parent of the child. However, the spouse of the birth parent is not considered a parent in these circumstances if they did not consent to being the parent of the child when the child was conceived.

Additionally, up to four people can agree to be parents of a child together before the child is conceived if:

• The intended birth parent is not a surrogate and is a party to the agreement
• The child is to be conceived through sexual intercourse and the person whose sperm is to be used for the purpose of conception is a party to the agreement
• The child is to be conceived through assisted reproduction or through insemination, the birth parent has a spouse, and the spouse is a party to the agreement.

Finally, sections 217 and 218 of the Child, Youth and Family Services Act, 2017 set out the definition of a “parent of a child” in the case of an adopted child. In short, once an adoption order is made, the adopted child becomes the child of the adoptive parent(s), and the adoptive parent(s) becomes the parent(s) of the adopted child. Moreover, the adopted child ceases to be the child of the person who was the child’s parent before the adoption order was made; that person ceases to be the parent of the adopted child, except where the person is the spouse of the adoptive parent.

Conclusion

The team at Preszler Injury Lawyers practices exclusively in the area of personal injury law. The focus of this article is to clarify who may have a claim for damages related to the personal injury of a family member under the Family Law Act.

This article is NOT to be confused as advice in a family law setting. If you require legal advice related to a family law issue such as divorce or custody, it is important that you speak with a family lawyer. Preszler Injury Lawyers are not able to provide advice about specific family law issues.

However, if you are the family member of an individual that has been injured or killed due to the negligence of another, please do contact us to better understand your rights.

This article was written by Daniel Bassili.