Who Can Sue if a Family Member is Injured in an Accident?

Who can sue? Families of personal injury victims

Part of being human is being connected. It’s our nature to form deep bonds with our loved ones, our happiness and well-being intertwined with the happiness and well-being of those we are closest to. And when someone is in pain, that burden is jointly shouldered by those closest to them, helping to make it a little more bearable.

But when our injuries are catastrophic, the hurt experienced by our loved ones can be especially difficult. Watching someone you care about suffer needlessly is one of the hardest trials many of us ever endure. And the toll — both emotional and financial — although shared can still be enormous.

Being hurt — whether in a car accident or a slip and fall incident — can have a tremendous impact on your life and the lives of those around you. This is especially true when a third party is responsible for the accident through malice or negligence. For this reason, there is a provision in Ontario law to not only help the injury victim but also their loved ones.

Protection for your loved ones

In Ontario, the Family Law Act (FLA) of 1990 stipulates the rights of parents, grandparents, spouses, and dependents in matters of family law such as:

  • property
  • support
  • inheritance
  • prenuptial agreements
  • separation agreements

But the Act — under Part V — also deals with family matters in personal injury cases. Specifically, it allows for an injured person’s close family to sue the at-fault party in certain cases.

Often, an Ontario tort claim will not only cover the injured party but also members of their family under this provision. As we said above, an injury to one can hurt many. This statue allows for an entire family to get the justice they deserve after a loved one is injured.

What the law allows

The FLA states that if a person is injured or killed by an at-fault party, the family members of the victim have a right to be compensated for their loss. This extends to cover:

  • the spouse
  • children
  • grandchildren
  • parents
  • grandparents
  • brothers and sisters

These family members can sue for monetary damages as well as non-pecuniary damages, both of which we’ll discuss later.

Who can sue and when?

Under the FLA, qualifying family members can claim damages if:

  • the family member in question has been injured or killed due to another person’s fault or neglect
  • if the injured person is also entitled to damages or would have been if they survived
  • the person suing is one of the qualifying family members listed above (in relation to the injured party)

Of course, the definition of “family” is constantly broadening these days, especially in Canada, a development the FLA does its best to keep abreast of. For instance, the parent/child dynamic allows for any situation where an adult demonstrates a “settled intention” to treat a child as their own (with the notable exception of foster children). The formality of a legal adoption isn’t always necessary.

Likewise, the term spouse can be broadly defined.

What damages can be claimed?

Under the FLA, the family members of an injured person have the right to claim from a non-exhaustive list of damages that includes:

  • reasonable expenses incurred for the benefit of the injured party
  • reasonable funeral expenses in the case of wrongful death
  • reasonable travel expenses for visiting the injured party during treatment and recovery
  • reasonable income losses
  • the reasonable value of services for nursing, housekeeping, etc., personally provided for the injured party
  • compensation for non-pecuniary losses such as guidance, care, and companionship resulting from injury or death

Hypothetically, if a person is killed in an automobile accident, the non-pecuniary losses could apply to all members of their family who relied on that person for companionship (e.g., spouse), guidance (e.g., children), or care (e.g., parents).

Limitations

There are three important limitations that will impact the amount of damages that can be awarded through the FLA:

  • contributory negligence
  • non-pecuniary damages cap
  • deductible for non-pecuniary damages in motor vehicle accidents

Contributory negligence

If a person is found to be partially at fault for their accident, family members can only sue to the extent the other party was at fault. For example, if your sibling was injured and you incurred a $10,000 loss as a result, but your sibling was 50% at fault for the accident, you would only be able to recover half your loss — $5,000.

Non-pecuniary damages cap

Following guidelines set by the Supreme Court of Canada, the Ontario Court of Appeal has placed a cap on the amount of damages a family member can claim for non-pecuniary damages in a lawsuit filed under the FLA. As of 2001, the cap was set at $100,000. Subject to inflation, it’s now set at $138,000.

Deductible for non-pecuniary damages in motor vehicle accidents

The Insurance Act sets a deductible for certain non-pecuniary damages (i.e., pain and suffering) that result from automobile accidents. This deductible, as of 2018, is set at $18,991.67. Any FLA-related non-pecuniary damages awarded would have to be reduced by this amount.

The deductible will not be applied in particularly serious cases, including when:

  • damages exceed $63,304.51
  • the injured party died because of the accident

Apportionment

Sometimes an FLA lawsuit has multiple claimants. In cases like this, the at-fault party can specify on settlement how these damages are to be split up — or apportioned — to all concerned. If they opt not to specify, which they have every right to do, it then falls to the court to decide how each family member is to be compensated. If you’re one of multiple claimants in a case like this, you may not get much say in how the settlement is paid out.

Accident benefits

Outside of the FLA, there are also provisions for family members who provide attendant care, housekeeping, or home maintenance services for the victims of a car accident. This claim is filed directly with the injured party’s auto insurance provider.

For non-catastrophic injuries, Attendant Care Benefits can pay up to $1,500 per month with Housekeeping/Home Maintenance Benefits paying up to $100 per week.

In the event of a catastrophic injury, the Attendant Care Benefits double to $3,000 per month.

Protect your loved ones

The FLA makes sure that your meaningful family connections won’t result in financial hardship for your loved ones in the event of accidental injury or death. But to make an FLA claim, at least one family member — if not more — will have to be named as a plaintiff in the suit. If the case isn’t settled out of court, this could lead to your family members being put through the discovery process and maybe even testifying at trial.

This could put an unfair burden or strain on your family that could be seen as outweighing any benefit that could be gained by winning an FLA suit. That’s why it’s always a good idea to consult with an experienced personal injury lawyer as a family before deciding if you want to pursue justice through the FLA. The right lawyer will be able to help you and your loved ones examine the case from all angles and figure out your best, most effective course of action.

Let Mackesy Smye help you and your family

Our firm has over 200 years’ worth of combined experience helping injury victims and their families get the compensation they deserve. If you or a member of your family has been injured due to another person’s negligence or wrongful act, follow the link below to book a free, no-obligation consultation.

We’ll review your case and give you a good overview of how Ontario law in general — and the FLA in particular — apply to your circumstances. And we’ll do everything in our power to help you recover your losses.

Get Started Today with a Free Consult

When someone gets hurt, family members drop everything to come to their aid, often at great expense. Thanks to the Family Law Act, there’s coverage for them in personal injury lawsuits as well. Contact us for your free consult and we’ll do everything we can to help recover your losses.

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