Considerations for Minor Plaintiffs – Legal Steps to Take if Your Child Is Injured

• 
  Catherine Shearer
  Partner

This is every parent’s worst nightmare. Your child is injured during birth, at daycare, or even in a serious car accident. What rights does your minor child have?

If injured as a result of someone’s negligence, your child has the very same rights as an adult. This means they are entitled to recover compensation for their pain and suffering, economic losses, past and future care costs, and other expenses incurred on their behalf to name a few.  However, since your child is legally incapable of making their own decisions, a parent or guardian needs to be appointed as their litigation guardian.

A litigation guardian, generally a parent, must file an affidavit declaring that they consent to act as the litigation guardian, has appointed a lawyer to act in the proceeding, states if they and the minor are residents of Ontario, sets out the relationship to the minor, states they have no adverse interest in the proceeding, and finally that the litigation guardian will be personally liable for any costs awarded against the minor.

The litigation guardian will then be able to act on the behalf of the injured child. This will allow the litigation guardian to make decisions for their child and to instruct counsel while acting in the best interest of the child. To ensure that the outcome of the lawsuit is in the best interest of the child  any settlement reached must be approved by a Judge of the Ontario Superior Court before it can be binding.

In addition to receiving court approval, any settlements or awards compensating the injured child must either be paid into court or into a structured settlement where the funds will remain until the child reaches the age of majority and has capacity. If as a result of the incident, the injured child will not regain capacity once reaching the age of majority due to the severity of their injuries, there are a whole host of care and spending considerations that are best dealt with on a case-by-case basis.

Similarly, you may also be wondering what would happen if there are extensive medical and rehabilitation expenses that you cannot afford without using the funds paid into court. There are several ways that a portion of the funds set aside by settlement or award can be paid to cover expenses on behalf of the injured child. One example is if a parent or guardian could not afford needed expenses, that parent or guardian could then apply to the court to have a portion of the money paid out of court for the particular purpose.

If the unimaginable happens and your child has been injured as a result of negligence, it’s best to call a lawyer as soon as possible after the incident and once the child’s condition has stabilized. This will allow you to protect you and your child’s legal rights.

When a child is injured the legal process to recover damages on their behalf is complicated and quite frankly, scary. As a scared and confused parent, you will have enough on your plate without having to worry about the legal complexities. Finding a lawyer you can trust and rely on is essential to navigating the long road ahead with assurance.

This article was written by Personal Injury Lawyer Catherine Shearer, working from both our Guelph Ontario and London Ontario offices.