A collision on the highway, a fall on a construction site, a diagnosis missed in an emergency department. When someone dies because of another person’s negligence, the family is left with grief and, very often, with lost income, funeral bills and a household that no longer runs the way it did. No claim replaces a person. But Ontario law gives families a way to hold the responsible party accountable for what the death has cost them.
There is no single “wrongful death” lawsuit
What people call a wrongful death claim in Ontario is usually two claims brought together:
- Family Law Act claims by close family members for their own losses resulting from the death.
- The estate’s claim under the Trustee Act for losses the person who died suffered between the injury and death.
Both are normally advanced in the same lawsuit.
Who can claim under the Family Law Act
Section 61 of the Family Law Act allows these family members to claim:
- Spouses, including a common-law partner who lived with the person continuously for at least three years, or in a relationship of some permanence if they had a child together
- Children and grandchildren
- Parents and grandparents
- Brothers and sisters
Step-parents and step-children can qualify where there was a settled intention to treat the child as part of the family. Other relatives, friends and fiancés generally cannot claim, unless the relationship meets one of these definitions.
What family members can recover
The losses the law recognizes include:
- Funeral expenses actually incurred
- Expenses incurred for the person before death, such as care or treatment
- Reasonable travel costs for visiting the person during treatment
- Loss of financial support the person would have provided
- Loss of household services the person provided, such as childcare, home maintenance or caregiving
- Loss of guidance, care and companionship
Each claim is personal to the family member. A child who lost a parent at eight and a sibling who saw the person twice a year have separate claims, and courts assess them on the closeness of the actual relationship.
The estate’s claim
The Trustee Act lets the estate pursue the claims the person would have had if they had lived: income lost between the injury and death, expenses they incurred, and damages for their pain and suffering during that time. The estate cannot recover damages for the death itself or for the loss of expectation of life. That is what the Family Law Act claims are for.
The estate trustee brings this claim, so an estate trustee needs to be in place, sometimes with a court appointment, before the claim can proceed.
Deadlines
Limitation periods in death claims are unforgiving:
- Family Law Act claims generally must be started within two years, usually running from the date of death.
- The estate’s claim must be started within two years of the death. This deadline is strict and does not move based on when the family learned the facts.
- If the person responsible has also died, claims against their estate are subject to the same strict two-year limit from their death.
Different rules can apply to claims by minors. Do not wait to find out whether an exception applies. Our post on limitation periods explains the general rules.
How the cause of death changes the claim
Car accidents. Accident benefits for death and funeral expenses are now optional coverage under Ontario auto policies, so whether they are available depends on the policy in force at the time. Our post on optional accident benefits explains what to check. In the lawsuit, a death meets the tort threshold for the family’s guidance, care and companionship claims, but a statutory deductible still applies to that part of the award. We explain the threshold and deductible in a separate post.
Workplace deaths. Where the person was covered by the workplace insurance system, the family generally cannot sue the employer or co-workers and instead receives survivor benefits through the WSIB. A claim against someone outside that system, such as a contractor or equipment manufacturer, may still be possible. Our post on workplace injuries explains how the system works.
Medical negligence. Death claims against doctors and hospitals follow the same process as other medical malpractice claims, with the same heavy reliance on expert evidence.
Criminal charges. A criminal prosecution and a civil claim are separate. The civil claim does not depend on a conviction and is decided on the balance of probabilities, a lower standard than in criminal court.
First steps
- Obtain the death certificate and any police or coroner’s report numbers.
- Keep every receipt: funeral, travel, care and household costs.
- Request hospital and medical records early.
- Do not sign releases or accept payments from an insurer before getting advice.
- Identify who will act as estate trustee.
How we can help
At Kabir & Alam, we represent families in claims arising from car accidents, unsafe premises and medical negligence, and we handle the estate and family claims together so that nothing is missed. Read more about our personal injury practice or book a consultation with us.
This post is general information about Ontario personal injury law and is not legal advice. Every case turns on its own facts. Speak with a lawyer about your situation before making decisions.