Opinion

Damages under the family law act: An updater

October 30, 2017

In 2014, my Partner, Sloan H. Mandel, and I co-authored a paper entitled “Advancing Pecuniary and Non-Pecuniary Claims under the Family Law Act” (the “original paper”). The purpose of this paper is to provide personal injury lawyers with an update on some statutory changes and case law affecting Family Law Act [1] claims.

A BRIEF REFRESHER

While the original paper remains on my website[2], a brief “refresher” will be provided.

Pursuant to section 61(1) of the Family Law Act, if a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages (or would have been entitled to recover if not killed), the spouse, children, grandchildren, parents, grandparents, brothers, and sisters of the person are entitled to maintain an action for their losses and damages arising therefrom.

Pursuant to section 61(2) of the Family Law Act, the types of claims that may be advanced 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 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 “bigger ticket” Family Law Act claims usually tend to be those advanced under section 61(2)(d). The non-pecuniary Family Law Act claims advanced under section 61(2)(e) are not subject to a hard “cap”, but the Ontario Court of Appeal has deemed the “high watermark” to be $100,000.00 (effective 2001 and subject to inflation).[3]

Non-pecuniary claims may also be subject to a statutory deductible pursuant to section 267.5(8.4) of the Insurance Act [4] if the following circumstances are present:

1. the case arose from a motor vehicle crash (e.g. as opposed to a slip and fall);

2. the Defendant is “protected” within the meaning of the Insurance Act [5];

3. the Family Law Act damages do not pass a certain monetary threshold (to be discussed further in the next section); and

4. the Family Law Act damages arise from an injury sustained by the primary Plaintiff (as opposed to arising from a fatality).

While personal injury cases often give rise to one or more potential Family Law Act claims, these claims may not always be worth pursuing on a cost-benefit analysis. Before obtaining instructions to advance a Family Law Act claim, personal injury lawyers should consider: the likely value of the claim relative to the deductible; whether Court approval will be required (and the costs and delays associated with same); the risk of inconsistent statements given by multiple Plaintiffs at their respective discoveries; and the Rules of Professional Conduct regarding joint retainers[6].