Family Law Act of Ontario and s. 61: claiming for loss and injuries

When someone is killed or seriously injured because of another’s negligence, the harm does not stop at one person. The Family Law Act Ontario gives certain surviving family members the right to sue for their own losses through section 61 of the Act. What courts will award, and to whom, has shifted considerably in recent years, and personal injury lawyers need to know where things stand.

What is s. 61 of Ontario’s Family Law Act?

Before Ontario’s Family Law Act (FLA) came into force, families had almost no legal path when a loved one was killed or injured through someone else’s negligence. Common law offered them nothing, and their loss was not recognised as a separate wrong. However, section 61 changed all of that.

The section creates a statutory right of action that did not exist before. As the Ontario Court of Appeal said in Macartney v. Warner, 2000 CanLII 5629 (ON CA), the provision “dramatically expanded recovery” for Ontario families.

Under s. 61(2), the losses that can be claimed include:

• actual expenses reasonably incurred for the benefit of the injured or deceased person
• actual funeral expenses
• travel costs incurred to visit the person during treatment or recovery
• loss of income, or the value of services, where the claimant provides nursing, housekeeping, or similar care to the injured person
• compensation for the loss of guidance, care, and companionship the claimant would reasonably have expected to receive

Check out this video of one of the Canadian Lawyers’ top personal injury boutiques for 2026:

Learn about the provincial laws and deadlines that lawyers and litigants must not miss when it comes to personal injuries proceedings. Check out our article on “Personal injuries proceedings act: Limits, notices, and traps.”

The derivative nature of FLA claims

FLA claims are derivative, meaning they are tied to the primary claim. If the injured or deceased person’s case fails on liability, the FLA claims fall with it. Where liability is established, each family member must prove their own individual loss through their own evidence. A claimant does not need to bring a separate tort claim of their own to advance an FLA claim.

The Family Law Act of Ontario applies across all of personal injury law. It means that motor vehicle accidents, slip and falls, occupiers’ liability, medical negligence, and product liability cases can all give rise to s. 61 claims under the FLA.

Who qualifies as dependants under Ontario’s Family Law Act?

The Family Law Act Ontario does not give every grieving family member a right to claim, because the law defines a closed class of eligible claimants. Anyone outside that list cannot bring a s. 61 claim, regardless of how close the relationship was.

The closed class includes:

• spouses
• children and grandchildren
• parents and grandparents
• brothers and sisters (siblings)

We’ll discuss each dependant below.

Spouses

For married couples, there is no minimum duration. For unmarried couples, however, the FLA requires continuous cohabitation for at least three (3) years, or a relationship of some permanence where the parties are also parents of a child together, per s. 4 of the Children’s Law Reform Act.

That three-year rule was challenged in Brebric v. Niksic, 2002 CanLII 41745 (ON CA). When the claimant’s boyfriend was killed in a motor vehicle accident after they had cohabited for 18 months, she challenged the rule under the Canadian Charter of Rights and Freedoms.

However, the Ontario Court of Appeal dismissed the challenge, finding the three-year threshold is a reasonable and objective standard for identifying relationships stable enough to carry the support obligations behind s. 61.

Children

The FLA does not limit the meaning of a “child” to biological offspring. It extends to anyone a parent has shown a clear intention to treat as a member of their family, which means that stepchildren and adopted children can qualify. But there’s one exception, who is a child placed in a foster home by someone with lawful custody.

Siblings

Brothers and sisters are regularly left off claims entirely. The Family Law Act of Ontario includes them in the closed class, and where there is evidence of a close and active relationship, a sibling’s s. 61 claim can be meaningful.

Learn about handling catastrophic injury cases from one of the best personal injury law firms in the country:

Check out Canadian Lawyer’s Special Report on Canada’s Best Personal Injury Law Firms for a list of the country’s leading personal injury boutiques and firms.

How do courts quantify loss for surviving dependents under the FLA?

Courts assessing Family Law Act Ontario claims split damages into two categories:

• pecuniary loss (financial)
• non-pecuniary loss (relational)

Knowing how courts approach each one is where preparation makes the difference for lawyers handling personal injury cases.

Pecuniary losses

Pecuniary losses are the traceable financial costs, such as:

• income lost while providing care
• market value of caregiving services
• other out-of-pocket expenses connected to the injury or death

These claims are often underdeveloped, and courts will compensate real financial loss, but the evidentiary record must support it clearly. In turn, approximate figures and unsupported estimates consistently fall short when claimed for personal injury cases.

Non-pecuniary loss

Non-pecuniary loss under FLA’s s. 61(2)(e) addresses the relational side. It refers to what the claimant has lost in terms of the other person’s presence, support, and involvement in their daily life.

When assessing this head of damages, courts look at the following:

• the age and physical condition of the claimant
• the quality and closeness of the relationship
• whether the parties lived together and how often they were in contact
• the degree of emotional self-sufficiency of the claimant
• the joint life expectancy of the claimant and the deceased or injured person

Claims built on general statements, such as “we were very close” or “they were always there for us”, carry little weight on their own. As a good practice, claims for non-pecuniary loss must have specific, documented evidence of how the relationship worked from day to day, so that courts can actually assess and put a value on such claims.

The deductible in motor vehicle accident cases

Where the claim under Ontario’s Family Law Act arises from a motor vehicle accident, non-pecuniary awards in injury cases are subject to a statutory deductible under s. 267.5(8.4) of Ontario’s Insurance Act:

• the 2026 deductible is $23,956.52 per claimant
• the deductible drops away once an award crosses the “vanishing deductible” threshold
• in fatal cases, the deductible does not apply

In moderate injury cases, this deductible can reduce an otherwise valid FLA award to nothing. Personal injury lawyers should factor it into any cost-benefit analysis before advancing a non-pecuniary FLA claim in a motor vehicle accident context.

What are the landmark decisions on s. 61 of Ontario’s Family Law Act?

Case law on s. 61 of the Family Law Act Ontario has moved steadily since the early 2000s. Here are a few key decisions that define where things stand when it comes to these types of personal injury claims.

To v. Toronto Board of Education (2001 ONCA)

The case of To v. Toronto Board of Education, 2001 CanLII 11304 (ON CA) is still the starting point for every non-pecuniary FLA damages argument. The Ontario Court of Appeal identified $100,000, measured in February 1992 dollars, as what might be viewed as the high end of the accepted range for guidance, care, and companionship damages.

Equally important in To is that the Court confirmed that Ontario has no legislative cap on these awards, and each case must be assessed on its own facts.

Fiddler v. Chiavetti

In Fiddler v. Chiavetti, 2010 ONCA 210, the Ontario Court of Appeal applied an inflation adjustment to the benchmark from the To case, bringing it to approximately $125,000 in January 2005 dollars, and reduced a $200,000 jury award to that figure. The Court confirmed, just like in To, that there is no judge-made cap either.

Malik v. Nikbakht

Malik v. Nikbakht, 2021 ONCA 176 settled a debated point: FLA claims under the Family Law Act Ontario are a separate cause of action. The two-year limitation period under Ontario’s Limitations Act, 2002 runs independently for each FLA claimant. As such, a plaintiff cannot add FLA claims to an existing action after that two-year period has expired.

Moore v. 7595611 Canada Corp.

This is the decision that reset expectations. In Moore v. 7595611 Canada Corp., 2021 ONCA 459, a jury awarded each parent $250,000 for the loss of their adult daughter in a house fire. The Ontario Court of Appeal upheld both awards, applying the standard from Young v. Bella, 2006 SCC 3: appellate intervention is only warranted where an award “shocks the conscience of the court.”

At the time of the daughter’s death in November 2013, the inflation-adjusted To benchmark stood at approximately $150,000. The jury awarded $100,000 above that, and the Court of Appeal let it stand, pointing to the depth of the parent-child relationships and what both parents had lost as their daughter entered adulthood.

Family Law Act Ontario: how claims are now put forward

For personal injury lawyers, the practical takeaway is that the claims under s. 61 of Ontario’s Family Law Act are only as strong as the evidence behind them. A well-documented FLA claim, built on specific evidence of how the relationship worked, what it meant, and what is now missing, will always outperform one treated as an afterthought. As the courts have said since To and repeated in Moore: there is no formula. There is only the evidence, and what it says about a life that cannot be replaced.

Bookmark Canadian Lawyer’s Personal Injury page for more news, articles, and updates for Canadian legal professionals, such handling s. 61 cases under the Family Law Act Ontario.