What is an Infant Settlement Motion and Why Does it Matter?

In personal injury lawsuits, it is common to have parties involved who are under the age of 18. In these situations the lawsuit will be started with a “litigation guardian” who makes the decisions on behalf of the infant.

Although the litigation guardian is able to make steps along the way with the lawsuit – the settlement requires approval by the Court. Since the majority of cases settle before reaching trial, it is likely that an infant settlement motion will be required if you have started a lawsuit on behalf of an infant.

The motion to approve settlement must include

Rules of Civil Procedure 7.08(4):

  1. an affidavit of the litigation guardian setting out the material facts and the reasons supporting the proposed settlement and the position of the litigation guardian in respect of the settlement;
  2. an affidavit of the lawyer acting for the litigation guardian setting out the lawyer’s position in respect of the proposed settlement;
  3. where the person under disability is a minor who is over the age of 16 years but less than 18, the minor’s consent in writing, unless the judge orders otherwise;
  4. a copy of the proposed minutes of settlement.

This motion is filed at court and a judge will review and hopefully sign it to approve the settlement. Sometimes the judges will refuse to sign the proposed Order because they do not have enough information, or they do not agree with the lawyer and litigation guardian that the settlement is fair.

If the judge approves the settlement, the money is typically paid into court to be administered by the accountant of the Superior Court of Justice. However, in the case of Martin v. Robins [2006] O.J. No. 915 the Plaintiff’s lawyer brought a motion to have the money paid into a Guaranteed Investment Certificate “GIC” at a bank.

Justice Quinn reviewed the materials and found the settlement to be fair, and found that the Court had the authority to allow the money be invested at a financial institution according to the phrase “unless a judge orders otherwise” found at the end of subrule 7.09(1).

This investment would pay significant more to the minor when she reached the age of 18. Justice Quinn therefore ordered the money be invested in the GIC, with the Plaintiff’s lawyer Mr. Elkin as the trustee. The GIC must be renewed every 5 years, and this was to be done at the discretion of Mr. Elkin as trustee.

 

Brendan Sullivan
Written by

Brendan is a lawyer working in Hamilton Ontario at Harvey Katz law office. He has had the privilege of working closely with Harvey Katz and assists seriously injured people with claims arising from motor vehicle accidents, slip and falls, dog bites, life insurance denials and long-term disability. Brendan completed his articles in 2016 with a large insurance defence firm where he assisted with a seven week jury trial in Toronto. Brendan is a member of the Hamilton Law Association and the Ontario Trial Lawyers Association.