Suing in tort typically focuses on an injured individual, the pain they have suffered, and the impact of the injury on their life. However in many cases, the injured individual is not the only person negatively impacted. What happens to the child of a parent who was driving their car and got into a serious accident?
The Right to Sue
Under section 61 of the Family Law Act ("FLA"), if a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, certain "dependants" have a right to sue in tort. A dependant is someone who is supported or sustained by someone else, as family members often are by one another. Legally, dependants can include a spouse, children, grandchildren, parents, grandparents and siblings. That means those family members can sue someone at fault for the injury or death of their loved ones.
The damages they can claim may include an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred. Two questions that come out of this are: 1) what is loss of guidance, care and companionship?; and 2) what might someone reasonably expect to receive for that kind of loss?
Loss of Guidance, Care and Companionship
The Ontario Court of Appeal has defined these three words separately.1 Companionship is the deprivation of the society,...
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