Common Questions: My Dad Was In An Accident. He’s Not The Same. Do I Have a Claim?

When a person has been injured, the Family Law Act, R.S.O. 1990, c. F.3, allows certain family members to advance separate but related claims for their respective damages. The key provision is section 61(1). It provides that if your family member has been injured or killed by the fault or neglect of another, you – either as a spouse, child, grandchild, parent, grandparent, or sibling – are entitled to recover your damages flowing from the injury or death of your family member.

Section 61(2) provides a non-exhaustive list of the types of claims for damages that you may advance. It states:
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 the 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.

The most common claim made under the Family Law Act is for the loss of guidance, care and companionship. Essentially, this claim can be advanced when there has been a material change in your relationship with your loved one as a result of the accident. Quantifying such a claim though is subjective in nature and requires a fact-specific analysis in every case.

In addition to a claim for the loss of guidance, care and companionship, you can also recover compensation for any income loss you may have sustained as a result of the accident. For example, if you were required to take time off work to care for your loved one, or if you simply required time off to emotionally and physically regroup following the accident, you are able to seek compensation for your loss of income. In the seminal case, Macartney v Warner, 2000 CanLII 5629 (ON CA), the Ontario Court of Appeal confirmed that family members could recover their respective income losses, so long as the facts established that the losses resulted from the injury or death of a family member and for no other reason.

Pursuant to the Family Law Act, you are also able to seek compensation for the services you provided your family member following the accident. When advancing claims for services rendered, it is important to provide particulars as to the types of services you provided, the duration of said services, and the approximate frequency. This approach ensures that you will be fairly compensated because the court will assess your claim by multiplying the hours in which you actually provided services by an appropriate hourly rate. With respect to the hourly rate to be applied, Justice Spiegel, in Matthews Estate v Hamilton Civic Hospitals, 2008 CanLII 52312 (ON SC), held, “[i]t is the nature and quality of the services provided and their value to the person injured rather than professional qualifications of the care provider that should govern the assessment.” On this basis, in Matthews, Justice Spiegel determined that the family member’s hourly rate was that of a qualified professional as the injured family member in this case required complex care normally provided by a registered nurse.

All of the aforementioned claims are based squarely within the wording of the Family Law Act. However, it should be noted that section 61(2) uses the words “may include” before listing the types of claims that can be pursued. This indicates that other claims for damages not listed may actually fall within the parameters of the section. Historically, the Ontario Court of Appeal has endorsed a robust interpretation of this section so to not limit its applicability; for this reason, section 61 has been relied upon to recover transportation costs family members have incurred to transport their injured loved ones, as well as legal expenses incurred by family members to participate in an Inquest following the death of an incarcerated family member. What is clear from these examples is that the potential for recovery for family members pursuant to section 61 is only limited by the creativity and advocacy of your lawyer.

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