WHAT DOES FAMILY LAW HAVE TO DO WITH MY INJURY CLAIM?

As outlined in Martin Law's recent companion blog article, Are You A Caregiver?, it's estimated that as many as 4 million Canadians have become informal and unpaid caregivers for family (Brain Injury Canada). That's a huge number of unsung heroes battling every day to help a loved one while struggling to get by with their own lives, work and burdens.

We see parents, grandparents, children, spouses and siblings stretched to the max just trying to deal with their loved one's car crash or slip and fall injuries. Family Law Act claimants (close family members with a companion claim) struggle to help during the lawsuit and ultimately must continue to struggle for years after the case has ended.

But what is a Family Law Act claim and why does it matter to my family?

In Ontario, we have a law called the Family Law Act passed years ago by our Ontario Legislature. Under that Act, family members may claim for both financial loss as well as their loss of your care, guidance and companionship suffered as a result of your injury. This law gives your family a number of rights and an opportunity to claim money for those damages. However, like most things in life, with those rights come responsibilities.

Let’s break these FLA (Family Law Act) claims down into step by step bullet points:

• Who can make a FLA claim? Traditionally, we thought of this class of plaintiffs as the spouse plus biologically two generations up, two generations down and one step sideways. In other words, your husband or wife and then up the family tree for parents and grandparents and then down the family tree for children and grandchildren.  Then sideways across the branches for brothers and sisters. However, our modern reality of blended families has broadened this class and a biological relationship is not strictly required. For example, if your parents are in a permanent relationship and/or you are their adopted child and have suffered an injury, then these modern family relationships will certainly be considered;

• What can Family claim? Lawyers talk about pecuniary and non-pecuniary loss. This translates to:

1. tangible out of pockets are actual expenses incurred, travel allowance to visit the injured person during her treatment or recovery as well as a fair amount to compensate family for lost work and income and/or their unpaid services, care or nursing; and
2. loss of that relationship. Families are family for a reason. We count on one another’s support, comfort and help for life. When a person suffers an injury, she is not the only one affected. Everyone in her family suffers that loss. Everyone is bound and loses a huge part of that special supportive family relationship. That support can be emotional, physical and financial. Our legal system struggles but ultimately will put a dollar figure on that damaged relationship. Why a dollar figure? Why money? Because in the end, that is really the only thing our system can do. Our Courts cannot rebuild a person and cannot rebuild that family. Compensation for that loss is what we have to work with;

• How is a FLA claim actually made? These claims are made as part of the injured person’s lawsuit or Statement of Claim. FLA claimants are plaintiffs named in the style of cause at the beginning of the claim;

• How much is a FLA claim worth? There is no set figure. There is no going or published rate. This depends on the nature of the injury and each individual family member’s relationship with that injured person. Lawyers and our Courts look to the facts of each case and also to previous Court judgments called precedents. However, it is rare for FLA claims to be a windfall or big money. FLA claims are intended to provide some partial compensation as a result of the serious injury of a close family member; and

• What is the downside? There are at least 3 significant concerns that accompany these FLA claims:

1. Family is now a part of the lawsuit and must attend Examinations for Discovery as well as any Court dates. This may mean taking time off work, losing income and/or paying for additional childcare or babysitting services;
2. In Ontario car crash claims, there is a very large deductible applied against part of an injured person’s claim as well as a large deductible applied against part of each FLA claim. Our Ontario Government created these deductibles. The most recent Ontario Governments, at the request of insurance companies, have increased deductibles as well as indexed them for inflation. Depending on the severity of the injury and the impact of the loss on a particular family member, that Ontario deductible can undercut an FLA claim and that claim ultimately may not be all that substantial; and
3. Because family becomes part of the lawsuit, if the claim goes to Trial and you lose, then all plaintiffs including Family claimants may be responsible for costs. In most cases, even though the negligent driver or property owner who caused the injury must be named in the lawsuit, the defendant in a personal injury claim is really a large national or international insurance company. That insurance company calls the shots, picks the defence lawyer, pays the defence lawyer and it’s the insurance company that pays any settlement or Trial award. Costs are the large defendant insurance company’s legal and other expenses. Going to Trial is expensive. While our Courts are generally reluctant to impose costs on FLA plaintiffs when they lose at Trial, often since many Trial Judges were themselves litigators and know family claimants are already struggling financially because of the family's loss, the awarding of costs remains in the discretion of the Trial Judge.

The old saying has never been more true, “When One Suffers, We All Suffer.”

Families know this. When your family is injured as a result of someone else’s negligence, then consider if bringing FLA claims is right for your family. Discuss this with your lawyer. FLA claims should never be an automatic add-on that you don't understand. Call an experienced injury lawyer to find out where your family stands.