Courts in Ontario have inherent the jurisdiction and obligation to protect minors (children under the age of 18). This means that when a child is injured as a result of the negligence of another person, the law requires additional procedures to be followed and provides certain protections for the child.
Procedural Requirements
Personal injury claims on behalf of minors have special procedural requirements. An adult, usually the child’s parent or guardian, must assume the role of the child’s decision maker and become the child’s “litigation guardian”. The litigation guardian has the authority and responsibility to make all decisions in the litigation on the child’s behalf. It is the litigation guardian who consults with the lawyer representing the child and gives the lawyer instructions.
Court Approval of Settlements
One of the most significant protections for minor litigants is that no settlement of a claim entered into on behalf a child is legally binding, until it has been approved by a Court. In addition the settlement funds payable to a child are to be “paid into Court” and held by the accountant of the Superior Court of Justice, until the child turns 18, unless there are special circumstances. Special circumstances include a disabled child who requires money for ongoing rehabilitation services or assistive devices. If the funds are not paid into court then they are to be invested in conservative investments such a Guaranteed Income Certificate or a high interest saving account. In cases where the child needs regular treatments it may be more appropriate to buy an annuity so that regular payments are available to meet anticipated expense.
If the funds are paid into court or invested the child’s legal guardian can ask for some of the funds to be released for special or unexpected expenses before the child turns 18, but the guardian must obtain the approval of the Court. When the child turns 18, they can receive any remaining funds.
Motion for Court Approval
The child’s lawyer asks the court to approve the proposed settlement by bringing a motion before a Judge. The motion is usually done by means of an extensive paper record and if the supporting material is sufficient appearing in court is often not necessary.
On a motion for Court approval of a proposed settlement the child’s lawyer must file an affidavit of the litigation guardian setting out the material facts and the reasons supporting the proposed settlement and the position of the litigation guardian in respect of the settlement. In addition the lawyer must file an affidavit setting out the lawyer’s position in respect of the proposed settlement. If the minor is over the age of sixteen years, the minor’s consent in writing is required, unless the judge orders otherwise. Finally the court must receive a copy of the proposed minutes of settlement which set out the terms of the settlement in detail.
On a motion for the approval of a settlement made on behalf of a minor, the Court may direct that the material submitted in support of the approval be served on the Children’s Lawyer or on the Public Guardian and Trustee. They can then file a report stating any objections they have to the proposed settlement and make recommendations in connection with the proposed settlement.
The Best Interests of the Child
In every case the Court will decide whether to approve the proposed settlement based on whether or not it is in the best interests of the child.
Any personal injury claim brought on behalf of a child is complex and involves additional legal services and expenses. The procedures outlined above are mandatory and must be followed.
If your child has been injured, we have the necessary experience representing minors to assist you in presenting the child’s personal injury claim.
