The victim of a car crash or other injury is rarely alone, as their injury often has a serious impact on their family. The victim may need to depend on their family members for personal care, transportation, and other forms of assistance. They may also lose the ability to contribute to their family in the way they did prior to their accident. If the victim is killed, their family members may also incur expenses for a funeral and may suffer damages due to the loss of their relationship with the victim.
In Ontario, the Family Law Act (“FLA”) enables a victim’s family members to make claims for compensation for the impact of an accident on their lives. Only the following family members are eligible to make a claim under the FLA: a victim’s spouse (common law or married), children, grandchildren, parents, grandparents, brothers, and sisters.
The FLA allows eligible family members to claim for the following:
– Actual expenses incurred for the benefit of the person that was injured or killed;
– Funeral expenses;
– Travel expenses incurred to visit the person during their treatment or recovery period;
– Expenses for nursing, housekeeping, or other care for the injured person;
– Compensation for loss of income to provide services (i.e. when an eligible family member provides care to the injured person, instead of hiring someone) or the value of the services provided;
– Compensation for the loss of or negative impact to the relationship with the victim (known as the loss of guidance, care and companionship that the eligible family member would have received were it not for the injury or death); and
– Where the eligible family member is the victim’s spouse, financial support obligations.
Many portions of an FLA claim – i.e. care, funeral or travel expenses – are easy to assess. For these economic loss claims, the Court will consider whether it was reasonable to incur the costs and if so, claimants will typically be reimbursed.
It is much trickier for the Court to assign a value to a claim for the loss of guidance, care, and companionship, and, unfortunately, the compensation awarded is never enough to replace what was lost. For these claims, the Court must take an in-depth look at the relationship between the family members and attempt to break down what was lost due to the victim’s accident-related injuries or death.
If a victim’s injuries or death are caused by a motor vehicle accident, there is an additional wrinkle in the assessment of damages for the loss of guidance, care, and companionship (for any claims for compensation not tied directly to incurred expenses). In these cases, the Insurance Act prescribes a substantial deductible (currently valued at nearly $19,000) that is subtracted from any award for loss of guidance, care, and companionship that is less than about $62,000. As an example, if a family member is awarded $50,000 for the loss of guidance, care and companionship following a loved one’s motor vehicle accident, they would only receive about $31,000.
In practice, FLA claims are often advanced alongside a claim for compensation brought by the victim but can be brought as standalone claims. These claims are subject to strict time limitations, so be sure to speak to a lawyer as soon as possible if a loved one has been involved in an accident.