The effects of a car crash often extend beyond the injured victim and have a significant emotional and financial impact on the victim’s family. Those who have been seriously injured may lose their independence or no longer be able to contribute to the family in the capacity they did prior to the accident. In addition, family members may need to take leave from work to provide care and assistance for a loved one.
Who is eligible to make a claim?
If a person is injured or killed by the fault or negligence of another, their family members may make claims under the Family Law Act (“FLA”). It is important to note that these claims are only available to family: the victim’s spouse, children, grandchildren, parents, grandparents, brothers, and sisters. The definition also includes common law spouses and couples who have children.
What can be claimed?
FLA claims are meant to compensate family members for the impact of the accident on their lives. The Act recognizes that in addition to the suffering of the victim, there are losses suffered by those required to care for that injured family member – and those who depended on them for support.
Section 61(2) of the Family Law Act specifically provides a statutory right for family members to claim:
- expenses reasonably incurred for the benefit of the person injured or killed;
- funeral expenses;
- travel expenses incurred in visiting the person during treatment or recovery;
- expenses relating to nursing, housekeeping or other services for the person;
- compensation for loss of income to provide services 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.
FLA claims are evaluated on a case-by-case basis. While most of these losses are easily calculated (although the assessment of damages is commonly disputed), the claim that is most difficult to evaluate is the loss of guidance, care and companionship. For financial loss claims, the Court will consider the reasonableness of the expenses incurred. It is challenging to assign a value to the loss of a loved one or the intangible aspects of a relationship that can never be regained. In most cases, no amount of money will truly compensate for what has been lost. For claims like this, the Court will consider the nature of the relationship between the family members and what has been lost as a result of the accident-related injuries.
FLA Claims in the Context of Motor Vehicle Accidents – The Deductible
Under the Insurance Act in Ontario, if a person is injured as a result of a motor vehicle accident, a deductible will apply to claims for damages that cannot be directly tied to an expense. FLA claims are no exception and are subject to a vanishing deductible of $18,692.59, which is deducted from any amount the Court awards that is less than $62,307.59.
For example, if a jury assessed a Family Law Act claim for loss of guidance, care and companionship at $60,000.00, the claimant would only actually receive $41,307.41. The deductible amount is simply not paid out to the claimant as a function of Ontario law.
In addition to the FLA claims explained above, dependency claims may also be made on behalf of those who relied on the support of a family member who was injured or killed.
If you or a loved one has been involved in an accident, it is important that you speak with a lawyer to ensure that all available claims are advanced and your family is properly compensated.