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When a person's death is the result of someone else's fault, such as in a car crash or slip and fall, the deceased's next-of-kin usually know to reach out to a lawyer for advice, but what are the rules when the injured person survives?
In Ontario, the right to claim compensation arising from the death OR injury of a loved one is established by the Family Law Act (FLA). Section 61 allows specific family members — parents, grandparents, spouses (including common law), children, and siblings — to seek their own compensation for not only financial expenses incurred but also for the “loss of guidance, care and companionship that the claimant might have reasonably expected to receive from the person if the injury or death had not occurred.” You will hear lawyers refer to these types of claims using the verbal shorthand of “FLA claims.”
What you can claim
- Loss of guidance, care, and companionship, referring to the unique, non-financial loss of the relationship itself. Such a claim is always specific to the individual claimant given his or her own relationship with the injured party.
- Out-of-pocket expenses reasonably incurred for the injured or deceased person's benefit (e.g., equipment, counselling, parking, meals while at hospital).
- Funeral expenses in fatal cases.
- Travel expenses reasonably incurred to visit during treatment or recovery.
- Value of services you provide as compensation for stepping in to give nursing, housekeeping, childcare, or other necessary care because of the injury. This can be measured by market replacement cost even if you are unpaid.
Courts assess the nature and closeness of the relationship, the degree of disruption to family life, and the necessity and reasonableness of the expenses and services.
How these claims fit with others
- They are known as “derivative claims” that run alongside the injured person's own lawsuit or, in a death, are anchored to the deceased's right to sue. These claims rise and fall in tandem with the liability analysis that applies to the underlying injury/fatality claim.
- Each eligible family member has a separate claim, but they are usually advanced together.
- Amounts must be reasonable and may not duplicate other recoveries.
Practical tips for establishing proof
- Keep receipts and a log of mileage, parking, time spent caregiving, and tasks performed.
- Obtain notes from health providers supporting the need for your visits or services.
- Document how family routines, support, and companionship changed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
