Can I Sue a Spouse or Family Member for Personal Injury?

Personal injury law, specifically tort law, protects those who are injured through no fault of their own. Personal Injury law encompasses tort law, municipal liability, civil litigation, accident benefits, long-term disability, product liability, sexual harassment, and medical malpractice.

“Personal injury” is the legal term for an injury that is either physical (pain or harm to one’s body) or psychological (cognitive or mental impairment). Tort law is concerned with claiming damages that result from another party’s negligence.

Physical Injuries:

• • • Brain and spinal cord injuries
    • Soft tissue injuries
    • Broken or fractured bones
    • Amputation, loss of limbs, or paralysis
    • Wrongful death

Psychological Injuries

• • • Severe changes in sleep or appetite
    • Depression, psychological trauma, or anxiety
    • Memory loss
    • Changes in personality, behaviour, or temperament

In the 2017 case of Saadati v. Moorhead, the Supreme Court of Canada unanimously decided that tort law must treat mental and physical injury claims similarly. Psychological injury claimants are no longer burdened with satisfying special evidentiary requirements to prove their suffering, such as the diagnosis of a cognitive or psychological disorder. Instead, the focus is on the claimant’s actual pain, not the label attached to it.

Factors Considered When Assessing Damage

When assessing the value of a claim, many factors are considered: the cause and nature of the injury, and the impact it has on one’s ability to function and participate in society. Most personal injury damages come in the form of monetary benefits that pay for what was lost due to injury. In some cases, compensation for medical bills or property damage is relatively easy to determine. However, other cases can be more difficult to calculate (when the victim’s quality of life becomes severely compromised, for example).

Common Types of Damages Awarded in Personal Injury Cases

Medical Treatment: This includes the cost of necessary medical care and reimbursement of money that the victim may have paid out of pocket. It also includes compensation for the estimated cost of any future medical treatments.

Pain and Suffering: Compensation for a victim’s current (and possibly future) pain and suffering is known as non-pecuniary general damage. A threshold must be met when claiming pain and suffering as a result of a motor vehicle accident (unlike other cases where there is no threshold). In order to meet this threshold, if applicable, a lawyer must prove to the court that the incident resulted in:

• • Death
  • Permanent serious injuries or impairment of an important physical, psychological, or cognitive function
  • Permanent and serious disfigurement

Income: If a car accident causes injuries that result in one’s inability to work, damages based on future income may be awarded. This is compensation for a “loss of earning capacity.” While lost income can be claimed without meeting the threshold mentioned above, you can only receive 70% of the net loss, minus accident benefits that you receive. After trial, you are entitled to 100% of the lost income in the context of a tort claim. If the incident is not a car accident, entitlement may be 100% of the past and future damages.

Housekeeping and Home Maintenance Services: If you are unable to perform certain chores and tasks around the house because of injury, you may be compensated for any money spent on home maintenance. This may apply to other chores and expenses.

Property Damages: If the incident caused loss or damage to material properties (such as clothes, gadgets, or other property), you may be entitled to reimbursement for repairs or compensation of their market value.

Claims by Family Members: The law in Ontario allows some of a victim’s family members to make a claim for themselves even if not injured or involved in the incident. Those who are eligible include spouses, immediate family members, and grandparents. According to the Family Law Act, family members can recover:

• • Reasonable allowances for travel expenses incurred to visit the injured victim during their recovery or treatment. This may also be available as accident benefits.
  • Nursing, housekeeping, and other related services that the victim needs as a result of the injury.
  • Expenses incurred for the benefit of the victim.
  • Monetary damages for loss of income.
  • Funeral expenses.

An amount to make up for the loss of care, guidance, and companionship that the family members enjoyed or reasonably expected to receive from the victim had the incident not occurred.

Limits on Damages

Awards on damages in Ontario are not unlimited, nor are they guaranteed. Both federal laws in Canada and local laws in Ontario limit what victims can recover, including:

Evidence: Not only must victims prove that their injuries are due to someone else’s negligence, but they must also prove that the amount to which they believe they are entitled is actually supported.

Capping of Non-Pecuniary Damages: In the 70s, the Canadian Supreme Court decided that claimants of non-pecuniary damages can receive up to $100,000. Due to inflation, the cap is now around $400,000.

Statutes of Limitations: When it comes to legal matters, sooner is better. Generally, victims of motor vehicle accidents in Ontario have two years to start a case against an at-fault party. However, it is not advisable to wait that long; if the limitation period passes, there is a high probability that the court may dismiss the case.

When You Can (or Should) Sue Your Spouse for Personal Injury

Happily married spouses typically don’t sue one another. In certain situations, however, it may be necessary to sue a spouse in order to recover compensation for injuries that have been suffered.

Consider the following:

Scenario 1 – Your spouse spills a drink on the floor and does not clean it up. You, in a rush, do not notice the spill. You slip and fall, hitting your head hard on the kitchen counter and causing injury.

Scenario 2 – You are running late to an important event. Your spouse is driving and you are in the passenger seat. Your spouse, thinking there is no oncoming vehicle, runs a red light. Just then, a speeding truck slams into your car. You sustain serious injuries and are incapacitated for months.

In the first scenario, you may sue your spouse but the insurance policy may exclude coverage if, for example, you live in the same household. Insurance companies usually exlude coverage for members of the household for certain incidents. That being said, some losses should be covered by the policy; it all depends on the incident and the language of the insurance policy.

In the second scenario, the driver spouse can be held liable for injuries sustained by the victim, even if the two are married. Collusion is unlikely in this case because it is presumed that the driver would not purposely risk the spouse’s life simply for financial gain. (Such situations are judged on extenuating circumstances in order to rule out the possibility of fraud.) If the victim believes she is entitled to more than what the insurance company is willing to pay in accident benefits, she can sue the spouse for damages. However, the driver must be named as the defendant. The insurance company will likely be who pays out if the victim wins the case and thus the sued spouse does not pay the victim spouse out of pocket and the married couple is better off overall

The principles applied in personal injury lawsuits are not one-size-fits-all and can vary depending on specific circumstances. It is best to enlist the help of a personal injury lawyer in order to understand what options are available to you and if you are eligible for compensation.

If you believe that you are entitled to compensation due to an injury, call Rooz Law Personal Injury Lawyers in North York at (416) 229-6000. We will fight for your rights and pursue the maximum compensation that you deserve.