Unlocking Support: Children Now Eligible For Non-Earner Benefits
Author(s): Darcy R. Merkur
February 8, 2024
In a recent turn of events, children are now entitled to claim $18,500 in non-earner benefits if they meet specific criteria within the two years following a motor vehicle accident. This development follows a landmark decision in the case DC v TD Insurance Meloche Monnex (2023, ONLAT 21-015015/AABS) (“DC v TD”).
Individuals eligible for Ontario accident benefits have to choose a weekly benefit of either income replacement benefits or non-earner benefits (with caregiver benefits available to those with a “catastrophic impairment”).
Unfortunately, after the June 1, 2016 legislative changes, children were often deprived of a weekly benefit claim because they rarely worked, which would qualify them to meet the criteria for income replacement benefits. The legislation explicitly states that non-earner benefits are not payable to anyone under the age of 18.
However, the recent LAT Decision in the case DC v TD has reshaped this narrative. In this particular case, a seriously injured 12-year-old was determined to qualify for the full $18,500 in non-earner benefits, to be disbursed upon reaching the age of 18. The Arbitrator considered the legislation’s reference to ‘elementary’ students, as being eligible for non-earner benefits, concluding that these benefits were intended to be available to children.
To qualify for non-earner benefits, the Disability Certificate (the OCF-3) must confirm a ‘complete inability to carry on a normal life’ due to the accident. Typically, individuals with prolonged hospital stays meet this test in the months following the incident. It’s essential to note, as set out in this article, that the test considers the individual’s condition at the time of certificate completion, rather than projecting future qualifications.
The arbitrator’s decision in DC v TD clarifies that the $18,500 is payable without interest once the minor turns 18. To maintain eligibility, the injured child must continue to meet the test for entitlement in the two years following the accident, not in the two years after reaching the age of 18.
Those representing younger accident victims should review open accident benefit claims and consider advancing claims for non-earner benefits wherever applicable. This decision significantly levels the playing field for injured children who were previously excluded from these benefits under the existing legislation.
In conclusion, the recent breakthrough in DC v TD not only expands financial support for injured children but also challenges previous interpretations of non-earner benefits, offering hope and assistance to families navigating the aftermath of motor vehicle accidents.
Darcy Merkur is a highly regarded Ontario trauma lawyer helping accident victims such as pedestrians, cyclists and motorists, who have sustained catastrophic injuries.
Darcy is the first lawyer in Canada to be qualified as a Certified Brain Injury Specialist by the Brain Injury Association of America. In addition, Darcy has been recognized as a Certified Specialist in Civil Litigation by the Law Society of Ontario, is listed in peer-reviewed publications – Lexpert® and The Best Lawyers™ in Canada, is ranked AV Preeminent® in Martindale-Hubbell ® and is a partner at Thomson Rogers, one of Ontario’s Top 10 Personal Injury Law Firms as selected by Canadian Lawyer Magazine, and ranked one of the Best Law Firms in Canada by The Globe and Mail.
Darcy can be reached at 416-868-3176 or by EMAIL.