When a person is injured in a car accident, they are often not the only victim, and as personal injury lawyer Steve Rastin told Law Times, the provisions of the Family Law Act (FLA) can be used to help relatives recover some funds related to the care of a loved one. As the article notes, part V of the FLA, entitled “Dependant’s claim for damages,” §61(1) gives a spouse, common-law spouse, children, grandchildren, parents, grandparents, brothers and sisters of a person injured or killed by the fault or neglect of another an entitlement to recover their pecuniary loss resulting from the injury or death.
Rastin, managing partner of Rastin Trial Lawyers, tells Law Times that this right exists in addition to the Accident Benefits system, where payouts have been drastically reduced as a result of recent amendments to the Statutory Accident Benefits Schedule and Insurance Act.
“I have no doubt that for many people who have a car accident, they find out they are paying money for nothing,” he said. “They are put in the MIG (Minor Injury Guideline) guideline, they get $3,500 coverage, no housekeeping, limited or nonexistent attendant care, and income replacement capped at $400. If most citizens knew how little they are getting for how much they pay, they would be outraged,” added Rastin.
Two types of claims can be advanced under the FLA, as outlined in §61(2), namely pecuniary claims — actual expenses reasonably incurred for the benefit of the person injured or killed — including funeral expenses and an allowance for the loss of income or the value of nursing or housekeeping services provided for the person, for example, and non-pecuniary expenses. These include compensation for the loss of guidance, care, and companionship that the claimant might reasonably have expected to receive from the person. However, Rastin said those who bring a pecuniary claim for actual expenses need to prove it.
“If an individual family member has to give up their job to care for their injured loved one, that’s a huge case. Even if they are on a modest income, it’s a significant financial cost,” he said. “But many family members provide care around jobs or do shift work because they can’t afford to give it up. So how big is the pecuniary loss?” he added.
Often in these cases, Rastin noted, family members sacrifice their quality of life.
“They give up all their extracurricular activities. It’s not fair if the insurance company says they haven’t lost anything,” he explained.
“My answer is, before, they had a robust life.” That portion, he says, becomes a non-pecuniary claim.
“You’re not allowed to sue for grief, loss, and anger, but for loss of care, guidance, and companionship,” explained Rastin. “What is the quality of the relationship worth?”
As the article notes, the government has introduced a deductible to deter people from going forward with minor non-pecuniary claims. When that was put in place, said Rastin, it stopped 85 to 90 per cent of FLA claims.
“Now, we open a file in only 8 per cent of cases that come in,” he said. “People who are legitimately injured are turned off by the deductible.”
At the same time, Rastin said he uses the FLA regularly — as the article notes, many plaintiff lawyers consider the FLA to be the best avenue for redress, given the current legal landscape.
“If I fight for a client, even if I get $10,000 net, that’s $10,000 more than they would have gotten otherwise,” said Rastin.