Accidents and injuries involving children are unfortunately common. Kids can be seriously hurt by car accidents, slip and falls, dog attacks, and defective products (e.g., toys, bicycles, scooters, playground equipment).
A personal injury claim can be pursued when a child is injured because of someone else’s fault or negligence, but there are special considerations with these types of claims. Here is what you need to know about personal injury claims for children and what you should consider when settling a case involving a minor under your responsibility.
Understanding a minor’s personal injury claim
Who is a minor in Ontario?
A minor is any person under the age of majority. In Ontario, a child under the age of 18 is a minor. Ontario law says a minor can’t bring a personal injury claim case on his or her own behalf and can’t sign legal documents.
Can a personal injury claim be brought on a minor’s behalf?
Yes. A litigation guardian can bring a claim on behalf of an injured minor. A litigation guardian can be anyone over the age of majority. In many cases, the litigation guardian is the child’ parent, but it can also be a relative or guardian who agrees to act as the child’s representative. If no adult is willing or able to act as the minor’s litigation guardian, the Office of the Children’s Lawyer (“OCL”) can be appointed to act as litigation guardian.
It’s important to carefully consider who will best advance the child’s claim. Once appointed by the court, the litigation guardian steps into the minor’s shoes. The litigation guardian must take all steps necessary to protect the minor’s interests and advance the minor’s personal injury claim. The litigation guardian is authorized to give instructions and make all decisions in the litigation on the child’s behalf. The litigation guardian must be represented by a lawyer.
How long do you have to bring a minor’s personal injury claim?
Generally speaking, a personal injury lawsuit must be started within two years of the date the accident occurred. However, there are special rules for personal injury claims by minors. Section 6 of Ontario’s Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., states that the two-year limitation period does not begin to run while the injured person is under the age of majority, and is not represented by a litigation guardian in relation to the claim.
Settling a claim involving a minor under your responsibility
As litigation guardian, you are responsible for bringing the minor’s personal injury claim; giving instructions and making decisions on the minor’s behalf; and if possible, negotiating settlement of the minor’s claim.
Any settlement of a minor’s claim must be approved by a Justice of the Ontario Superior Court of Justice. This is an important safeguard for injured children. Settlement of a minor’s claim is not legally binding without the court’s approval. The approval requirement applies whether litigation has been started yet or not.
In all cases involving minors, the question for the court is whether the proposed settlement is in the best interests of the child. The court must approve the fairness and reasonableness of the amount the child is to receive given the nature and severity of their injuries, as well as how and when the child will receive the settlement proceeds.
Major considerations in settling a minor’s claim are the child’s prognosis and the status of their recovery. If there are “unknowns” about the child’s future abilities in light of the injuries or concerns that the child’s injuries are not yet fully healed (or may worsen as the child grows, etc.), it is unwise to settle the claim.
Court approval of a minor’s injury settlement
On a motion for approval of a personal injury settlement involving a minor, the court will review the application materials to determine whether the proposed settlement amount is in the minor’s best interests. Application materials must include:
an affidavit from the litigation guardian setting out material facts, reason(s) for the proposed settlement, and the litigation guardian’s position with respect to the proposed settlement;
an affidavit from the child’s lawyer setting out the lawyer’s position and why the settlement is fair and reasonable;
a copy of the minutes of settlement containing the full details of the settlement; and
the written consent of the minor, if the minor is 16 years of age or older.
The court can direct that the application material be served on the OCL or on the Public Guardian and Trustee (“PGT”). The OCL or PGT can then file a report which sets out any objections to the proposed settlement. They can also make recommendations with respect to the proposed settlement or its structure.
The court can refuse to approve a settlement if it hasn’t been provided sufficient information, or if the judge does not believe the settlement is in the child’s best interests. If the court is satisfied the settlement is fair, the judge will sign an Order approving the settlement and the funds for the minor will be held/paid according to the terms of the Order.
How and when a minor receives settlement money
Generally speaking, a minor’s personal injury settlement is paid into court. The court holds the minor’s settlement proceeds in trust until the minor reaches the age of majority. The money is then paid to them when they turn 18. There are some exceptions to the general rule. For example:
In appropriate cases, settlement proceeds may be invested in a structured settlement designed to protect the minor’s interests. A structured settlement such as a trust or annuity may be put in place, guaranteeing tax-free monthly payments to cover the child’s care and expenses.
The minor’s legal guardian—who may or may not have been the child’s litigation guardian—can apply to the court to request that some of the settlement proceeds be released to cover an expense for the direct benefit of the child, such as a medical expense or rehabilitation program.
Get advice from the personal injury lawyers at our law firm
Oshawa lawyers at Kelly Greenway Bruce are committed to providing personalized support to ensure accident victims get the compensation they deserve.
If you are pursuing a claim on a minor’s behalf, the skilled lawyers at our Oshawa law firm can advise you of the options, evaluate the child’s personal injury claim, and help develop a strategy to maximize the child’s personal injury compensation.
We can help you navigate the legal system and get the support your child needs to recover from the accident injuries. Connect with us today and schedule a free consultation.