Family Law Act Claims in Personal Injury Actions

By February 27, 2020Auto Accidents

Personal injuries often have a large impact, not only on those who are injured but on their families. Imagine a scenario in which your aging father, who lives three hours away, is severely injured in a car accident for which he is not at fault. As a close family member, you may end up spending a great deal of time driving back and forth to visit and tend to your father. You may also potentially spend a lot of money on treatments not covered by OHIP or by your father’s insurer.  What you may not realize is that, in this scenario, you may be able to make a claim in Ontario against the at-fault driver.

According to section 61(1) of the Family Law Act, R.S.O. 1990, c. F.3, if a person is injured or killed by the fault or neglect of another person under circumstances where the injured or deceased person is entitled to recover damages or would have been entitled to recover if they were not killed, the spouse, children, parents, grandparents, grandchildren, and brothers and sisters of the person are entitled to maintain an action for their losses and damages arising from the injury of their family member.

Section 62(2) of the Family Law Act, R.S.O. 1990, c. F.3 sets out the types of claims that can be made under section 61(1). These claims include: claims for actual expenses reasonably incurred for the benefit of the person injured or killed; reasonable claims for funeral expenses; claims for reasonable travel expenses incurred to visit the person during their recovery; claims for loss of income or the value of services for family members who have provided the injured person with services such as nursing or housekeeping; and claims for the loss of guidance, care and companionship that the claimant could have reasonably expected to receive from the injured or deceased person if the injury or death had not occurred. 

Let’s return to this example of your aging, injured father. Under such a circumstance, you could likely make a claim for travel expenses to visit your father three hours away, nursing, housekeeping, or any other services you have had to provide your dad due to his injury, and other reasonable expenses incurred for your father’s benefit. You may even be able to make a claim for loss of guidance and companionship if you and your father were very close and he was a consistent source of advice and support to you before the accident.

However, it is important to note that non-pecuniary damages or damages for loss of guidance, care, and companionship are limited in Family Law Act claims related to car accidents. There is a statutory deductible of $19,409.49 on non-pecuniary damages in Family Law Act claims. Hence, if a Family Law Act claimant is awarded $20,000.00 worth of damages for loss of guidance by a court, he or she will only receive $590.51 ($20,000.00 less $19,409.49). This statutory deductible is not applicable to accidents where the injured person died as a result of the accident or where the non-pecuniary damages awarded to the Family Law Act claimant exceed $64,697.21.

A personal injury lawyer can help an injured person and their family members think through the issues associated with making a Family Law Act claim, and help decide whether such a claim is worth making. We are here to help. If you or a loved one has been injured please contact our expert team at Reybroek Law for a free consultation.