It’s every parent’s worst nightmare: their child being seriously injured in an accident. As the father of two boys, I often run through worst case scenarios in my head, with a view to protecting them.
There’s no way to completely wrap them in cotton and bubble wrap, much as I’d like to, and the reality is that injuries happen.
If they’re serious, you need to be prepared to deal with the situation on a practical level, and that can include filing a personal injury suit.
Basic Information About Children And The Courts
When it comes to courts, a person cannot file a suit (or be sued themselves) if they are under the age of majority.
In Ontario, that’s 18 years old. Before then, children aren’t deemed legally able to bring a case to court or to instruct a lawyer. Having a lawyer acting for them is essential, but isn’t sufficient. A parent or guardian still needs to be acting on the child’s behalf.
The courts have always taken the position that it is their duty to protect children, as a top priority. While it is usual for the parent or guardian who brought the suit about to be appointed as the “litigation guardian”, it’s not a given.
There are times where the court decides to bring in a different person to act as guardian. This could happen, for example, if the parent(s) were so seriously injured in the same accident, that they are unable to represent their child themselves.
Another interesting fact is that the usual two-year deadline to file a personal injury suit does not apply in the case of a minor. The clock doesn’t start ticking until the child reaches the age of majority.
Giving Evidence In Court
While there is technically no age limitation as to whether or not someone is competent to give evidence in court, the reality is that children under the age of 14 can be challenged on the basis that they cannot understand the oath they would take to tell the truth.
The judge can examine their competency and decide that a young child can give evidence if they can understand the concept of truth and the importance of being truthful.
What Is A Litigation Guardian?
As I wrote earlier, this is an individual who will represent the interests of the child in court.
Typically, it’s a parent or legal guardian, but it can also be a close family member, or even a lawyer if there is a power of attorney in place. If there is no one available to act as a litigation guardian, one can be appointed through the Office of the Children’s Lawyer, though this is typically a last resort.
The guardian will represent the child in court and review settlement offers (if requested to do so by the judge). However, the court is the final arbiter as to whether the settlement is fair and if it will be approved. In fact, the lawyer representing the child via the litigation guardian will have to file a motion for court approval. From the court’s point of view, it comes down to the best long term interests of the child.
Managing Settlement Funds
Interestingly, it’s not guaranteed that a parent or guardian will be allowed to manage the settlement funds on behalf of their child, even if it is intended to pay for ongoing medical expenses. If the court does allow the parent / guardian to manage the money, they would issue stipulations as to how that money must be invested, how it can be withdrawn and so on.
Ultimately, the court has to approve the settlement of the claim and where those funds are held / managed. If the settlement funds are over $10,000, they are typically paid into the court through the Accountant of the Superior Court of Justice.
By having the settlement held and invested by the court, only funds approved by a judge can be withdrawn, until the child reaches the age of majority. The judge will consider each request for a withdrawal and consider the following:
- The obligation of a child’s parents to support and look after the child
- The child’s situation
- The amount of money in court
- The age of the child
- Whether the money is being spent on education, medical expenses or maintenance
- The source of the funds (Source)
Since the income earned on those invested funds is non-taxable until the child turns 21, there is no issue with regards to taxation.
All in all, a child who is suing for a personal injury is in need of extra protection, even if they have able parents and / or guardians.
It’s fundamental in our court system that children enjoy special protections and civil litigation is no different in that respect from family law.
