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The ABCs of Family Law Act Claims and Their Preparation for Trial in Medical Malpractice Actions

The ABCs of Family Law Act Claims and Their Preparation for Trial in Medical Malpractice Actions
Author: Richard M. Bogoroch Author: Melinda Baxter


Principally, the key factors in the assessment of Family Law Act claims in a personal injury action, and for the purpose of this paper, a medical malpractice action, are the extent and duration of the loss, and the valuation of associated losses and expenses, applied within the framework of suitably adjusted amounts for inflation. Pecuniary and nonpecuniary losses may be claimed. Over the years the quantum of awards for loss of care, guidance and companionship have tended to be modest, however, the impact of juries and their continued persistence in awarding significant amounts under this head of damage is effecting the range of awards in a positive direction.

Claims by family members resulting from the injury or death of the victim are governed by the Family Law Act, R.S.O. 1990 c.F.3 (hereinafter “FLA”).

General Principles

Section 61 of the FLA, specifically subsections 61(1) and 61 (2)(e) govern who is entitled to an award of damages and the basis for that award. Section 61(1) identifies that spouses, children, grandchildren, parents, grandparents, brothers and sisters can be awarded damages pursuant to an FLA claim. These limitations were broadened in the Court’s decision in Miron v. Trudel1, where it was held that the legislation has been extended to include unmarried life-partners.

Generally speaking, the requisite family relationship must have existed at the time of the incident. However, there are cases in which the claimant was not an eligible FLA claimant at the time of the incident, but became so afterwards. These decisions are based on the grounds that the FLA should be interpreted liberally so as to give the effect intended, ie. encouraging and strengthening the role of family in society2. For example, in Espinosa v. Garisto3, the Court concluded that a child en ventre sa mere at the time the principal cause of action arose could bring a claim pursuant to section 61 of the FLA.

If a family member meets the requirements of subsection 61(1); pursuant to subsection 61(2)(e) they can sue for the loss of “guidance, care and companionship” which they may reasonably have been expected to receive from the injured party had the injury not occurred. Essentially, subsection 61(2)(e) is available whenever the claimant is psychologically distressed over a loss of quality in family relations4. It is important to note that pursuant to subsection 61(3) of the FLA, the victim’s contributory negligence or failure to mitigate can effect recovery5. Ultimately, the damage amounts awarded are conventional, subject to the evidence advanced and the impact of inflation. If there is no proof of loss then an award will not be granted6, and where the loss appears small damages will be correspondingly modest7. However, where evidence warrants it, damages can be quite substantial.

As discussed, FLA claims may be brought where fatal injuries have occurred. A claim may be brought where the death is caused by the fault or neglect of another. Damages are assessed by reference to loss with a focus on what the claimants’ position would have been but for the death and to restore that position so far as possible.

An action undertaken pursuant to the FLA is derivative in nature or dependant on an action that may be brought by the injured person or his/her estate. The award of damages for an FLA claim are based on the compensatory principle and include the duty to mitigate. Some cases have defined these principles. For example, in Levesque v. Lipskie8, it was concluded that the duty to mitigate has not been extended to the requirement that the claimant seek employment to compensate for income loss following the death of a family member, if the claimant was not employed outside the home or a source of income prior to the incident. Additionally, as identified in Macartney v. Warner9, the Ontario Court of Appeal, in a motor vehicle accident case, concluded that the FLA claimants could maintain an action for loss of income resulting from the death of their son, in association with their claim for nervous shock.

1 (1995), 124 D.L.R. (4th) 693 (S.C.C.)
2Mason v. Peters (1982), 139 D.L.R. (3d) 104 (Ont. C.A.)
3 (1986), 38 A.C.W.S. (2d) 155 (Ont. H.C.)
4 Schmidt v. Sharpe (1983), 27 C.C.L.T. 1 (Ont. H.C.)
5 Brain v. Mador (1985), 32 C.C.L.T. 157 (Ont. C.A.)
6 Moore v. Cooper Canada Ltd. (1990), 2 C.C.L.T. (2d) 57 (Ont. H.C.)
7 Heney v. Ontario Superintendent of Insurance (1983), 1 C.C.L.I. 68 (Ont. H.C.)
8 (1991), 80 D.L.R. (4th) 243 (Ont. C.A.)
9 (2000), 46 O.R. (3d) 641 (Ont. C.A.)

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