Going forward after losing a loved one
Losing a loved one can have devastating effects on a family. In the months following a family member’s death, there are many arrangements that need to be made. When someone has been killed due to the fault of another, there may be recourse through a civil action for wrongful death. A lawyer with experience handling fatal injuries can help guide you through the process of seeking compensation for the loss of your loved one.
What is a wrongful death claim?
Civil actions for wrongful death may arise where someone has died as a result of the negligence or wrongdoing of someone else. The death must arise under circumstances where, had the deceased survived, they would be entitled to pursue a claim for damages.
Circumstances where wrongful death suits often arise include:
- Car accidents
- Pedestrian accidents
- Aviation accidents
- Boating accidents and drownings
- Dangerous, defective or faulty products
- Unsafe premises
Who can sue for wrongful death?
The category of who is eligible to pursue a claim for wrongful death differs by province and is set out in the relevant fatal accident legislation for each province. Generally speaking, family members closely related to the deceased, including parents, children, and spouses, can make a claim.
| Province | Eligible to claim | Legislative provision(s) |
|---|---|---|
| NS | Spouse, common-law partner, parent, or child | Section 5(1) of the Fatal Injuries Act |
| NB | Spouse, parent, child, sibling, or common law partner under certain circumstances | Section 7 of the Fatal Accidents Act |
| NL | Spouse, partner, parent, or child | Section 4 of the Fatal Accidents Act |
| PEI | Dependant, defined as spouse, parent, child, grandchild, spouse of any of the previous, divorced spouse who was entitled to support from the deceased, and anyone who was financially dependent on the deceased for at least 3 years prior to their death | Sections 6 and 1(f) of the Fatal Accidents Act |
| ON | Spouse, child, grandchild, parent, sibling, and common law partner in some circumstances | Sections 61(1) and 29 of the Family Law Act |
How long do I have to file a wrongful death claim?
In New Brunswick, Newfoundland and Labrador, Prince Edward Island, and Ontario, a claim for wrongful death must be started within 2 years of the deceased’s death. However, there may be some exceptions to this rule. Notably, in Nova Scotia, the limitation period is only 12 months after death. Regardless of where the death occurs, it is important to consult with a lawyer who has experience handling wrongful death claims shortly after your family member’s death to ensure that your rights are protected.
How long does a wrongful death claim take?
Civil litigation takes time. If you have lost a loved one and are considering pursuing a claim for wrongful death, organization is key to securing an expedient result. We understand that it is a stressful time and there are many things that need to be taken care of upon someone’s untimely death. Communication with an experienced lawyer is helpful in guiding you through the process.
Once all the relevant information is gathered and your lawyer has time to accurately assess the damages, they can begin negotiating on your behalf.
Due to the nature of wrongful death claims as opposed to other personal injury claims, without the need to wait for injuries to resolve or plateau before settlement, wrongful death claims can often be settled quicker.
Are wrongful death settlements taxable?
A settlement for wrongful death, like other personal injury settlements, is NOT taxable. This is because settlements are not classified as income. Amounts received as part of a settlement following someone’s death may be based on the deceased’s person’s income and the amount of financial support they would have otherwise provided. However, this amount is based on the net amount after taxes, and therefore, taxation has already been factored in. This principle is explored in more depth in the 1978 case from the Supreme Court of Canada, Keizer v. Hanna.
It is important to note that everything you do with your settlement money will not be exempt from taxation. So, for example, if you invest this money, it will be subject to taxation on the interest that you earn.
Relevant legislation
Nova Scotia
- Fatal Injuries Act, RSNS 1989, c 163.
- Survival of Actions Act, RSNS 1989, c 453.
New Brunswick
- Fatal Accidents Act, RSNB 2012, c 104.
- Survival of Actions Act, RSNB 2011, c 227.
Newfoundland and Labrador
- Fatal Accidents Act, RSNL 1990, c F-6.
- Survival of Actions Act, RSNL 1990, c S-32.
Prince Edward Island
- Fatal Accidents Act, RSPEI 1988, c F-5.
- Survival of Actions Act, RSPEI 1988, c S-11.
Ontario
- Family Law Act, RSO 1990, c F.3.
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