Family Member Claims under the Family Law Act

Providing post-accident, ongoing personal care for a person who has been severely injured in an accident can present a financial and emotional burden on the injured person's family members. In the case of a victim of a catastrophic injury such as severe brain injury, it is often the case that the injured person is unable to return to the same work that they performed before the accident. Cognitive abilities and memories may be substantially impaired. A tendency to easily become mentally fatigued is another symptom of traumatic brain injury, as is dramatic mood swings. Other effects include the inability to walk or to speak properly.  In some cases, the injured person may be unable to perform the most basic of life's functions and require full-time around the clock care or supervision.

Another often debilitating injury, spinal cord injury may necessitate full-time professional nursing care in order to help the injured person perform the most basic of life's activities like feeding, bathing and dressing one's self.  A person with quadriplegia or paraplegia resulting from a car accident or another traumatic injury often receives significant care and financial help from immediate family members who may take on the responsibility of caring for their loved one for many years. In cases of severe traumatic brain and spinal cord injuries, the prognosis may be a lifetime of requiring special assistance.

Who Can Claim Damages?

In addition to compensation awarded to tinjured person, Ontario's Family Law Act spells out other persons who may be entitled to damages when a family member is injured. When determining a person's status as a family member, children or grandchildren, brothers or sister, parents or grandparents who are biologically related to the victim are first taken into consideration, however, a person need not be biologically related to qualify. If a person can demonstrate that they are in a relationship of some permanence such as co-habitation between adults or an adopted child, they also warrant consideration.

Types of Damages

Damages that can be claimed are both pecuniary and non-pecuniary. Pecuniary damages are monetary amounts for expenditures paid in the past or future, whereas non-pecuniary damages are for losses that are not monetary such as pain and suffering, or loss of guidance, care and companionship.

Pecuniary (Monetary) Damages

From an accounting standpoint, monetary damages are clear and are the actual expenses that were incurred in the act of providing care to the injured person. Such damages include but are not limited to past and future attendant care, past and future lost wages, and past and future medical bills. Also included are travel expenses and any improvements or modifications to the family's home or vehicle.

Non-Pecuniary Damages

Non-pecuniary damages are losses that cannot be quantified. A loss of guidance, care or companionship that the claimant might have reasonably expected had their loved one not suffered a catastrophic or fatal injury may qualify as for non-pecuniary damages under the Family Law Act.

A Recent Court Case resulting in Family Law Claims

There are certain expenses pertaining to catastrophic injuries that require full-time attendant care and may qualify for reimbursement. A recent court case, Gordon v. Greig, determined damages for two catastrophically injured young men who were passengers injured in a drunk-driving accident. One of the accident victims, Derek Gordon suffered a severe brain injury as well as upper spinal injury and the other, Ryan Morrison suffered a severe spinal injury resulting in paraplegia. Both young men received significant support from their parents, particularly their mothers, both of whom gave up their jobs and became the primary care givers.

Mr. Gordon was awarded a total of $11,369,525 in damages, which included $8,646,900 for future care and attendant care.  Mr. Gordon’s parents were each awarded $75,000 for loss of care, guidance and companionship under the Family Law Act.  Mr. Morrison was awarded total damages of $ 12,441,197.78, including $8,880,000 for attendant care and future care costs.  In Mr. Morrison’s case, his mother was awarded $75,000, his father $60,000 and his sister $30,000 in Family Law claims.

Few events in life can cause such a profound change in one's life as having a family member suffer a catastrophic injury in a motor vehicle accident or another traumatic event. When an accident results in life-altering injuries such as spinal cord damage or severe acquired brain injury, a lifetime of attendant care and rehabilitation is often required for the injured person. In many cases, close family members fill the role of providing a home and daily care for the injured person; driving or accompanying them to medical procedures and assessments; and perform many other important roles in their loved one’s care and recovery.  Even when a loved one is not involved in the direct care of their family member, they may still be eligible to claim damages for loss of companionship and guidance.   Under Ontario’s Family Law Act, family members of persons injured due to the negligence of others can be reimbursed for some of the losses that they have incurred as a result of the serious injuries to their loved ones.