I am a family member of a tort victim or plaintiff. What are my options?

Learn about FLA claims

When a person sustains a tort (e.g. negligence, a MVA, a slip and fall), the consequences of the injury can extend to their family members. Ontario law provides a remedy for when this occurs.

The source for this claim is the Family Law Act, R.S.O. 1990, c. F.3 (hereafter “FLA”), most of which is concerned with family law issues such as support and equalization of net family properties, but that, in Part V, provides for a claim for damages to dependents of injured persons.

According to s. 61(1) of the FLA, a family member of a person can pursue a claim if the following elements are satisfied:

  • the person was injured or killed,
  • by an intentional or negligent act committed by another, and
  • the act occurred in circumstances where the person is or, if they were killed, then, if they had not been killed, would have been, entitled to recover damages.

The following persons have standing to make an FLA claim:

  • a “spouse” – meaning
  1. two persons who are married to each other,
  2. two persons who have together entered into a marriage that is void or voidable, in good faith on the part of a person relying on this clause to assert any right,
  3. two persons who are not married to each other but cohabited continuously for a period of not less than three years, or
  4. two persons who are not married to each other but have cohabited in a relationship of some permanence if they are the natural or adoptive parents of a child
  • a “child” – includes a person whom a parent has demonstrated a settled intention to treat as a child of his or her family, except a foster child (s. 1(1) “child”).
  • a “grandchild”
  • a “parent” – includes a person who has demonstrated a settled intention to treat a child as a child of his/her family, except a foster child (s. 1(1) “parent”).
  • a “grandparent”
  • a “brother” or “sister”

Generally, the familial relationship must exist at the time of, not after, the tort. There are exceptions; for instance, in Espinosa v. Garisto, [1986] O.J. No. 418 (QL) (H. Ct. J.) a child’s FLA claim was successful even though she was conceived, but not yet born, at the time that the tort had been committed.

According to s. 61(2) of the FLA, the following is a non-exhaustive list of heads of damage that can be requested:

  • actual expenses reasonably incurred for the benefit of the person injured or killed,
  • actual funeral expenses reasonably incurred,
  • a reasonable allowance for travel expenses actually incurred in visiting the person during his/her treatment or recovery,
  • where, as a result of the injury, the claimant provided nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services, and
  • 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

These heads of damage are further categorized into groups: nonpecuniary damages (i.e. damages for loss of guidance, care and companionship) and pecuniary damages (i.e. the other bullet points).

An FLA claim is subject to two qualifications:

  • It is a derivative claim in that, for it to succeed, it must meet the entitlement threshold: the principal plaintiff must have been injured or killed by the intentional or negligent act of another under circumstances in which the principal plaintiff is or, if they were killed, then, if they had not been killed, would have been entitled to recover damages. However, an FLA action can stand alone; it does not have to be part of the tort action of the principal plaintiff.
  • It is subject to contributory negligence in that the right to damages is subject to any apportionment of damages due to contributory fault or neglect of the person who was injured or killed (s. 61(3)).

In the absence of serious injury or death, damages for nonpecuniary loss are modest. In To v. Board of Education, [2001] O.J. No. 3490 (QL), the court set the high-water mark for nonpecuniary damages as $100,000 subject to inflation. In Fiddler v. Chiavetti, [2010] O.J. No. 1159 (CA), the Court of Appeal reduced a $200,000 award to $125,000 in observance of this common law cap.

Here are some more examples of figures that have appeared in case law:

  • In Craven v. Osidacz, [2017] ONSC 1757 (Can LII), an eight-year old boy was murdered by his father during an access visit and the mother successfully sued his estate for damages; the damages for her FLA claim for loss of guidance, care and companionship was $125,000.
  • In Rycroft Estate v. Gilas, [2017] ONSC 1627 (Can LII), a woman in her sixties died of septic shock two days after her gastroscopy. Her estate successfully sued the surgeon for medical negligence and the FLA claim – for the spouse was $55,000 (reduced from $90,000 because he remarried within a year of her death); for the adult child, $40,000.
  • In Foster v. Prince, [2015] ONSC 265, a young man in his 20s, who was troubled by his father’s death and experiencing substance abuse issues, was having an episode and the police were called. As they arrived, he came outside with two knives and did not put them down on the police’s warnings and was shot and killed. Although the police officers were held to have been not negligent, damages were quantified as: mother $60,000 and siblings $20,000 each.

For MVAs, an FLA claim for nonpecuniary damages is subject to a statutory deductible of $19,877.16 (2021; adjusted annually) except: a) if the damages exceed $66,256.09 (2021; adjusted annually) (Insurance Act, s. 267.5(7); O. Reg. 461/96 s. 5.1); or b) if the person died as a result of the MVA (s. 267.5(8.1.1)).

For an FLA claim by multiple plaintiffs (e.g. a brother and two sisters making an FLA claim for the loss of their two parents in an MVA), the defendant may offer to settle the claim for a global sum without specifying the shares into which it is to be divided. In that case, the plaintiffs, if needed, may apply to the court to decide how to apportion it among themselves (s. 62).

Any sum paid or payable as a result of the injury or death under a contract of insurance is not a relevant factor in a court’s assessment of damages for an FLA claim (s. 63).

The limitation period for an FLA claim is not necessarily the same as that which applies in respect of the tort claim but is determined, like other civil claims, in accordance with the provisions of the Limitations Act, 2002, SO 2002, c. 24.

The decision on whether to make an FLA claim requires a legal analysis that takes into account: standing; the types of damages that can be sought; any contributory negligence; the cap on damages; and the statutory deductible. Call Azimi Law today if you seek help with this decision.