If someone in your family is hurt in a motor vehicle accident, trip and fall, slip and fall, assault or other incidents, you have the right to make a claim. This claim for compensation, legally known as damages, are assessed on a case-by-case basis. The aim is to financially compensate for the loss or change in the relationship caused by the injuries. This includes changes in the care, guidance and companionship the relationship has sustained. The family member has two years from the date of injury to bring forth a claim.
In Ontario, the Family Law Act (“FLA”) grants rights to the family and close relatives of someone who has been injured or killed. These relatives are legally recognized as dependents, which includes spouses (as defined in Part III of the Act), children, grandchildren, parents, grandparents, and siblings, of the person who is injured and/or killed. These people can claim compensation to recover damages.[1] Essentially, FLA claims are intended to compensate an individual for the loss or change in the relationship one had with their loved one. The Act specifically looks at the loss of care, guidance and companionship, whether due to the extent of the injured person’s injuries, or their untimely death. Claimants are entitled to recover damages if the death and/or injury took place due to the fault or neglect of another person.
The purpose of this section of the FLA is to acknowledge that, even though this compensation scheme cannot bring a family member back, harm was done to the families as a result of their injury and/or death and the identified dependent should be entitled to recover.
Damages that can be claimed
Damages are assessed on a case-by-case basis. To demonstrate the exact loss of care, guidance and companionship, evidence of the familial relationship must be provided, as it cannot be inferred. Damages are assessed based on:[2]
- nature of the dependant’s relationship to the injured person;
- expenses reasonably incurred by the dependent for injured or deceased’s benefit;
- any funeral expenses, if applicable;
- travel expenses to visit the person during their treatment or recovery;
- an allowance for loss of income or value of the services the claimant provides such as housekeeping, nursing, or other services needed due to injuries; and,
- future treatment needs (including counselling)
As reiterated in Moore v. 7595611 Canada Corp (2021)., there is no legislated court-appointed limit on FLA damages. Each case is assessed based on its unique circumstances. The damages granted by the court are merely to replace and cover the loss of the loved one’s emotional support, advice, familial bonds, mentorship, love, intimacy, etc., that they would have continued to or had provided prior to the accident. It is not linked to the manner of the family member’s injury/death, but the ways in which it has affected the family members making a claim (claimants).
The deductibles for pain and suffering damages increase on a yearly basis to reduce the burden on the legal system and discourage inflated claims. Claimants seeking higher compensation will be required to support their case with substantial evidence.
As of January 1, 2025, there is a deductible of $46,790.05 for pain and suffering awards valued under $155,965.54. In cases of loss of guidance, care and companionship valued under $77,982.13, the deductible is $23,395.04. However, in cases of a fatality, there are no deductibles.
Need help after an injury?
This article was written by Anna Szczurko (partner) and Keren Kayembe (summer student). Anna is a lawyer practicing exclusively in the area of plaintiff personal injury litigation. If you or a loved one have been injured or have any questions about this article, please contact Anna for a free consultation at [email protected] or 519.660.7784
[1] Family Law Act, R.S.O. 1990, c. F.3
[2] Moore v. 7595611 Canada Corp., 2021 ONCA 459 (CanLII)
