Derivative but Separate: Section 61 of the Family Law Act

When someone is injured in a car accident, it is not just their life that is affected. Their families’ lives may be affected as well. For example, they may have to take on more responsibilities, may need to miss days from work, and could lose the companionship of the injured family member. In situations such as this, they may be able to advance a claim through section 61 of the Family Law Act (“FLA”). Eligible family members wishing to do so must be cognizant of the limitation period they face.

In Malik v. Nikbakht, 2021 ONCA 176, the plaintiff, Mr. Malik, and his children were injured in a three-car motor vehicle accident. Mr. Malik brought a claim against the owners and operators of the other vehicles, however, he did not include a claim under the FLA. Mr. Malik’s wife and children brought a claim against Mr. Malik, where they did include an FLA claim. More than four years after the accident, Mr. Malik brought a motion for leave to amend his statement of claim to add his own FLA claims relating to his losses arising from the injuries to his children. This motion was resisted by one of the defendants due to it being past the basic two-year limitation period that exists. This motion was originally successfully argued; however, it was appealed to the Superior Court of Justice where it was overturned. It was then appealed again to the Court of Appeal.

The Court of Appeal ruled that a s. 61 FLA claim is a distinct cause of action, which has to be brought within the two-year limitation period. Discoverability is an issue beyond the scope of this blog. The Court determined that “Mr. Malik’s s. 61 FLA claim would be for his damages arising out of injuries to his children as the result of allegedly negligent breaches by the defendants of duties of care they owed to his children. … this is a fundamentally different claim than Mr. Malik’s negligence action, which claimed damages arising out of his own injuries caused as the result of allegedly negligent breaches by the defendants of duties of care they owed to him.”[1]

While generally, you are able to amend your claim at a later date to add additional damages, this does not apply to a s. 61 FLA claim. An s. 61 FLA claim, while derivative in nature, is a new statutory cause of action and therefore has to be brought within the applicable limitation period.

[1] Malik v. Nikbakht 2021 ONCA 176 para. 13