Ontario’s Family Law Act allows a claim as a statutory tort for the family members adversely impacted by the wrongdoing. It states that such a claim is allowed where the primary person “is entitled to recover damages” due to the default or neglect of another. This will require the underpinning a valid tort claim, as discussed here.

Right of dependants to sue in tort

61 (1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.  R.S.O. 1990, c. F.3, s. 61 (1); 1999, c. 6, s. 25 (25); 2005, c. 5, s. 27 (28).

Damages in case of injury

(2) The damages recoverable in a claim under subsection (1) may include,

(a) actual expenses reasonably incurred for the benefit of the person injured or killed;

(b) actual funeral expenses reasonably incurred;

(c) a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;

(d) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and

(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.  R.S.O. 1990, c. F.3, s. 61 (2).

Contributory negligence

(3) In an action under subsection (1), the right to damages is subject to any apportionment of damages due to contributory fault or neglect of the person who was injured or killed.  R.S.O. 1990, c. F.3, s. 61 (3).

This remedy has been used in an case of sexual assault. ¹ This was a 2015 decision in an undefended case. The daughter of the plaintiff was awarded $15,000 for aggravated damages.

The Ontario Supreme Court considered and applied this claim in its 2008 decision. ² An award was made under the same statute for the plaintiff’s same-sex partner in the sum of $15,000. The trial court found that while the plaintiff was able to continue to participate on some of the social, recreational, companionship and household activities, there were, nonetheless, many activities which she could not do or enjoy. ³

The trial judge, in a similar case in July of 2007, seeking damages for the intentional infliction of mental suffering found no liability but did set a provisional assessment of damages for the Family Law claims of five family members in the composite sum of $100,000. ⁴

Most other jurisdictions in Canada have similar legislation.