Who can File a Wrongful Death Claim in Ontario?

By Matt Lalande in Wrongful Death on June 26, 2023

Who can File a Wrongful Death Claim in Ontario?

In Ontario, wrongful death claims are a type of lawsuit typically brought by the family or estate of a person who has died as a result of negligence or misconduct of another person or entity in car accidents, motorcycle accidents, bicycle accidents, pedestrian accidents or other types of unfortunate and tragic situations. The Ontario Family Law Act (FLA) specifically provides the legal basis for these family members to make claims in the case of wrongful death.

Section 61(1) of the FLA sets out that, if a person is injured or killed because of the fault or negligence of another, the following family members may bring a claim to recover their pecuniary damages:

Section 61(1) of the FLA sets out that, if a person is injured or killed because of the fault or negligence of another, specific family members may bring a claim to recover damages. Note that although the section refers to “pecuniary loss”, the loss of guidance, care and companionship is often referred to and treated as a non-pecuniary loss.

• Spouse
• Children
• Grandchildren
• Parents
• Grandparents and
• Siblings

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Spouse

For a spouse to bring an a wrongful death claim, sections 1 and 29 of the FLA combine to allow claims in any of the following situations, where the claimant:

• Was married to the injured or deceased person.
• Was in a marriage that was voidable or void but entered into in good faith.
• Lived with the injured or deceased person for three years or more.
• Had a child with the plaintiff.
• Was in a relationship of some permanence with the injured or deceased person.

Child and Parent

Section 1 of the FLA defines child and parent as follows:

• “Child”: Includes a person whom a parent has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody.
  
• “Parent”: Includes a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody.

The child and parent do not have to have a biological relationship to each other. The non-biological or adoptive parent must have shown a “settled intention” to treat the child as their child in order to bring a successful claim. A “settled intention” is shown in cases where a parent has acted in a way that shows that he or she intends to treat the child as their own (see MacDonald v. MacDonald, 1979 CarswellOnt 109 (Ont. Co. Ct.) and Hyatt v. Ralph, 2015 CarswellOnt 1332 (Ont. S.C.J.)).

Grandparents, Grandchildren and Siblings

Grandchildren, grandparents and siblings are not defined by the FLA. Consistent with parents and children, it may be argued that they may be included as FLA claimants if there was a settled intention of the parties to treat each other as family. A biological relationship is not necessary.

Date of Relationship

In order to successfully advance an FLA claim, you must determine if the parties are qualified to bring claims based on their relationship status at the time of the incident. A claim cannot be successfully advanced for a relationship formed after the event that caused the injury or fatality. These types of relationships include marriages after an injury and the additional family relationships that flow from the new union.

The right of an unborn child to make an FLA claim was considered by the Ontario Superior Court of Justice in Musselman v. 875667 Ontario Inc., 2010 CarswellOnt 3704 (Ont. S.C.J.), affirmed 2012 CarswellOnt 1507 (Ont. C.A.). It was held that an unborn but conceived child who is later born alive may advance a claim for FLA damages.

Have you Lost a Love one Unexpectedly? You may have a Wrongful Death Case.

As Ontario Wrongful Death Lawyers, our goal is to not only obtain compensation on your behalf for your pain and loss, but also to help financially protect your children and family. We encourage all wrongful death inquiries, and we are more than happy to discuss your legal options thoroughly. Our consultations are free of charge, free of obligation, and completely confidential. Our lawyers are flexible and can arrange a consultation at a time that is convenient to you and your family—and we are happy to answer any questions you have.

To schedule your free consultation with our Hamilton wrongful death lawyers, call us toll-free, no matter where you are in Ontario at 1-888-LALANDE or local throughout Southern Ontario area at 905-333-8888. Alternatively, you can chat with our live operator 24/7 or send an email through our website and we will be happy to get right back to you.