In national class action lawsuits where putative class members have suffered injuries, Family Law Act claimants (“FLA Claimants”) residing outside of Ontario may be excluded from damage awards. This is the result of a lack of provincial legislation allowing for FLA Claimants to seek pecuniary and non-pecuniary damages. This paper will briefly discuss some strategies to ensure that FLA Claimants outside of Ontario may pursue their damages in a class action lawsuit.
Section 61 of the Ontario Family Law Act
Pleading section 61 of the Ontario Family Law Act is a good place to start. While section 61 does not directly allow for FLA Claimants outside of Ontario to claim for damages, it is helpful in two ways: first, Ontario courts have traditionally certified class actions which include FLA Claimants from outside of Ontario, and found that such questions are not appropriately resolved at the certification stage, and are better left to be determined after the common issues trial; and second, in the context of a national settlement, class counsel tend to negotiate damage awards pursuant to the Ontario Family Law Act.
Pleading Dependants’ Damages on behalf of FLA Claimants as a Cause of Action
To date, FLA claims have been successfully pleaded as a common issue in class proceedings. As noted above however, it is debatable whether FLA Claimants residing outside Ontario will succeed even after the common issues trial, as the legislative framework in almost all provinces but Ontario is virtually non-existent. One way to get around this may be to plead damages, such as loss of care, guidance and companionship, as a cause of action. This would require counsel to address pecuniary and non-pecuniary damages for FLA Claimants outside of Ontario at an early stage in the proceedings.
In some provinces, specific causes of action related to family law claimants have successfully been certified to date. Further, in Ordon Estate v. Grail (“Ordon Estate”), the Supreme Court found that a claim for loss of care, guidance and companionship was permitted even where the statutory framework was silent. As a result of Ordon Estate, courts in some provinces have allowed dependents’ claims for loss of guidance, care and companionship without resort to provincial statues. In cases where courts have flat out rejected applying the Ordon Estate principle, counsel should attempt to creatively challenge these views within the context of class proceedings.
The Need for Legislative Change to Provincial Family Law Statutes
Legislative change would ensure damages for FLA Claimants outside of Ontario are not overlooked. The current regime in Ontario resulted from the 1969 Ontario Law Reform Commission Report, where recommendations to compensate family members for pecuniary damages finally found their way into the Family Law Reform Act (“FLRA”) of 1978. The Family Law Act, the successor to the FLRA, evolved to include compensation for non-pecuniary damages such as loss of guidance, care and companionship. For other provinces, it is necessary to continue to challenge these legislative voids to effect change and encourage legislative uniformity in this area.
Counsel must be proactive in the pleadings stage to ensure that FLA Claimants from outside of Ontario can pursue damages arising from an injury claim. While it is not necessary to seek inclusion of FLA Claimants from outside of Ontario at the certification stage, pleading both the Ontario Family Law Act, as well as loss of care, guidance and companionship as a cause of action is a good place to start.
About the Authors
Sally Lee and Sonya Diesberger are associates at Rochon Genova LLP; they practice in class actions.
This article appeared in Volume 20, No.1 (October 2011), OBA Civil Litigation Newsletter.
 Apart from s. 61 of the Ontario Family Law Act, it appears that only s. 2.1 of the Alberta Tort-feasors Act allows for a spouse to bring an action for injury inflicted on a married person.
 Andersen v. St. Jude Medical Inc., 2004 CanLII 17808 (ON SC)
 Robinson v. Medtronic Inc., 2009 CanLII 56746 (ON SC)
 See Elliott v. Western Health Care Corp., 2002 CanLII 54027 (NL SCTD)
In Ordon Estate it was the Canada Shipping Act
 For example, see Elliott v. Western Health Care Corp., 2002 CanLII 54027 (NL SCTD); Phillip v. Whitecourt General Hospital, 2004 ABQB 2 (CanLII).