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This article on Family Law Act (FLA) damages is part of a series of articles that discuss the types of damages that may be claimed in a medical negligence case. It is important to note, however, that each case is unique, and the damages claimed will differ as between individuals.

The assessment of damages is an ongoing process that evolves as the evidence becomes fully developed over the duration of a case; specifically, in cases involving significant injury, medical and expert assessments may be required to fully understand the extent of the harm suffered and the required future care.

Damages in a medical negligence action

Generally, in a medical malpractice action in Ontario, damages are meant to compensate a person for the injuries suffered as a result of medical negligence, attempting to put them back into the position they would have been in had the negligence not occurred. Certain categories of damages, such as future income loss, are usually quantified based on past performance and data, as well as expert evidence.

Other categories of damages, such as non-pecuniary general damages (pain and suffering), are more qualitative in nature and are usually quantified based on previous case law that attributes a financial value to the impact that injury or impairment has had on the person’s life. In addition to knowledge of the existing case law, assessment of these qualitative damages requires an understanding of the complex medical and scientific issues underlying the injuries and impairments involved.

For more information on the requirements for a successful medical malpractice case and the purpose of a medical malpractice case, please follow the links below:

An introduction to medical malpractice: Do I have a case?

What can a medical negligence action accomplish?

Assessing medical malpractice damages

Generally, in a medical negligence case in Ontario, the following are potential categories of damages that may be claimed depending on the facts of the potential case.

Below are a series of articles related to assessing medical malpractice damages. The topics not linked will be the subject of additional posts in the coming weeks.

  1. An introduction
  2. Non-pecuniary general damages
  3. Income loss
  4. Past and future expenses, including health care costs
  5. Family Law Act damages
    • Overview (current article)
    • Services rendered, expenses incurred, and pecuniary losses
  6. Other
    • Subrogated claims
    • Aggravated and punitive damages
    • Battery and lack of informed consent

An overview on Ontario’s Family Law Act damages

In Ontario, the Family Law Act permits individuals who have a particular relationship to an injured person to advance a claim for their pecuniary losses resulting from the injury to that person, including their loss of guidance, care, and companionship. Without specific legislation, generally, at common law, family members do not have a right to advance these claims. The existence and extent of this legislation will vary as between Canadian provinces and territories.

Who may advance a claim under the FLA?

In Ontario, the legislation permits the following individuals to advance a claim with respect to their injured family member:

  • spouses (including common law spouses and same sex couples);
  • children;
  • grandchildren;
  • parents;
  • grandparents;
  • brother and sisters.

This includes persons whom a parent has demonstrated a settled intention to treat as a child of his or her family (i.e. a stepchild, etc.), except if receiving valuable consideration in a foster home by a person having lawful custody. These relationships have to be in existence at the time of the alleged negligence (i.e. if you started a relationship with the individual after the injury then you cannot advance an FLA claim).

What claims may be advanced by family members under the FLA?

In Ontario, the legislation sets out that the types of damages advanced by family members may include:

  1. Actual expenses reasonably incurred for the benefit of the person injured or killed;
  2. Actual funeral expenses reasonably incurred;
  3. A reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;
  4. Where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable loss of income or the value of the services; and,
  5. An amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person had the injury or death not occurred.

The above categories do not encompass all types of damages that family members may claim. For example, family members who are dependent upon the injured or killed person may also have a claim for loss of income from the injury or death of that person. The specific types of damages that may be claimed on behalf of family members are dependent upon the specific facts of an individual’s case. As noted in the previous articles, medical negligence actions are not governed by Ontario’s Insurance Act, and therefore they are not subject to the deductibles set out in that Act.

Assessment of FLA claims in a medical negligence case

Generally, in Ontario, the courts have assessed Family Law Act claims for the loss of guidance, care and companionship very conservatively.

If claims are advanced for services rendered or incurred expenses, supporting documentation may be necessary to substantiate these claims. It is important to retain all supporting documentation (receipts, invoices, bank accounts, etc.) if you are considering a potential medical negligence action.

Expert accounting evidence may be required if a family member is advancing a dependency claim for the loss of the benefit of the income of a loved one who is deceased as a result of the alleged negligence, or if there is a loss of income advanced on behalf of a particular FLA claimant.

No statutory deductions for FLA Claims in medical negligence actions

Medical negligence claims are not subject to the Ontario Insurance Act. Therefore, the specific rules and regulations with respect to statutory deductibles and FLA claims are not applicable in a medical malpractice action.

Do you require assistance with a potential medical malpractice action?

At Siskinds LLP, we have a team of lawyers and staff  with expertise in medical negligence cases and health law, with extensive experience assessing and litigating complex medical negligence cases.

Kimberly N. Knight is a lawyer in Siskinds’ Medical Malpractice and Health Law Group. If you have any questions or would like more information on this topic, please contact Kimberly at [email protected] or call 877-672-2121.

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