When A Loved One Is Injured Or Killed During An Aviation Accident, Does the Family Law Act Apply?

airplane at dusk taking off from a runway

They are scenes that play out at airports across Canada and worldwide. Joyful reunions as passengers exit the gates from their plane trip and spot the family members and loved ones waiting to greet them. Even if no one is present at the airport as a passenger disembarks, there is always relief when a phone call or text message reassures a traveller’s loved ones that they have “arrived, safe and sound.”

But tears of joy can quickly become tears of anguish if the passenger emerges from the plane with an unexpected injury. Or, worse still, the passenger does not appear at the exit gate at all. Although air travel (particularly commercial air travel) remains one of the safest forms of transportation, when airplane accidents do happen they can change the lives of passengers and their loved ones forever.

In this blog post, I explain how a passenger’s family members and loved ones can access compensation for their own losses related to a passenger’s accidental injury or death during air travel.

The Family Law Act

Ontario’s Family Law Act (FLA) is a wide-ranging statute that outlines many legal aspects of a spousal union, including the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership and provisions for other mutual obligations in family relationships.

The Act also provides recourse for certain family members and dependents of a person who is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled to recover damages, if the person had not been killed. Family members which include spouses, children, grandchildren, parents, grandparents, brothers and sisters may make a claim under s. 61 of the Ontario FLA.

Recoverable damages in case of injury may include:

  • actual expenses reasonably incurred for the benefit of the person injured or killed;
  • actual funeral expenses reasonably incurred;
  • a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;
  • where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and
  • an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.

When an FLA plaintiff advances a tort claim, common law precedent has maintained that each case must be decided on its own evidence and “in light of the particular family relationships” at issue.

It’s important to note that unlike the cap on general damages the Supreme Court of Canada imposed (which stands at appropriately $400,000 as of January 2024), there is no cap on FLA damages. As my colleague D. Joel Dick noted in a blog post reviewing a landmark ruling on FLA claim by two parents over the death of their daughter in a house fire, the court has determined it will only interfere where the award shocks the conscience of the Court (unreasonably high or low).

Does the Family Law Act Apply To Aviation Accidents?

If a flight is solely between domestic destinations, Canadian statutory law (federal, provincial and/or territorial) and common law precedent (or Quebec’s civil code) will apply in any tort action against a defendant.

The Ontario Family Law Act would likely be applicable in a tort action for damages if the claim can be brought within the jurisdiction of Ontario. If the claim cannot properly be brought in Ontario, a claim employing a comparable statute that provides recourse to family members would likely apply. For example, Alberta’s Fatal Accidents Act, s. 8, provides the following mandatory awards for “grief and loss of the guidance, care and companionship of the deceased person”:

  1. $82,000 to the spouse or adult interdependent partner of the deceased;
  2. $82,000 to the parent or parents or the deceased person divided equally if the action is brought to benefit both parents; and
  3. $49,000 to each child of the deceased person.

But many passengers take international flights that originate in Canada, flyover or make stopovers in Canada, or have Canada as a passenger’s final destination. And some Canadian travelers travel between non-Canadian destinations by plane. In these cases, international aviation agreements and/or local laws may be applicable in terms of liability and tort actions.

If a passenger is injured or killed during any portion of air travel when there is an international portion of the trip itinerary, an international agreement called the Montreal Convention (or portions of its predecessor the Warsaw Convention) could apply. In cases where an accident occurs in or over a non-signatory country, (such as the tragic downing of Ukraine Airlines Flight PS752 over Tehran, Iran), Canada would still have jurisdiction to hear claims involving passengers who purchased roundtrip tickets in which Canada was listed as their final “destination” (the flight itinerary involved a return trip which included two stopovers in Ukraine, which is a signatory of the convention).

The Carriage by Air Act, which enacts into law the Montreal Convention of 1999, specifies which family members are eligible to make a claim for compensation from the death of a passenger in aviation cases. These include:

  1. The passenger’s spouse or a person who was cohabiting with the passenger in a conjugal relationship for a period of at least one year immediately before the death of the passenger,
  2. a parent, step-parent
  3. grandparent
  4. brother, sister, child
  5. adopted child, stepchild, grandchild,
  6. or any person for whom the passenger stood in the place of a parent.

Crew members and/or their families are generally not permitted to make claims if the crew member was on duty when the accident occurred (as opposed to being transported when off-duty).

Determining if the Montreal Convention applies and the interplay between provincial and federal statues can be complicated and varies based on the specific facts of a case. It is always best to seek independent legal advice from an experienced aviation accident lawyer to get advice on the most viable path to receive compensation.

What Should I Do If My Loved One Has Been Hurt or Killed in An Aviation Accident?

Learning a loved one has been tragically injured or killed in an aviation accident can be completely overwhelming. Amid all the emotions you may be feeling and all the unanswered questions swirling in your head, it may be extremely difficult to think about talking to a lawyer about compensation for your losses.

But it is essential to get independent legal advice as soon as possible following the accident – particularly if a potential defendant is offering compensation. For example, the Montreal Convention stipulates that following an aviation accident where a passenger has been injured or killed,  an air carrier must make an advance payment if it determines there is immediate economic need.  But, if there are any conditions attached to such a payment meant to indemnify the air carrier or which could otherwise compromise your right to further compensation, asking an aviation accident lawyer to review this paperwork will help you to feel confident that you are making an informed decision and protecting your rights.

Rest assured that as an experienced aviation accident lawyer, I bring the utmost compassion and sensitivity when I speak with injured passengers and/or their loved ones. During a no cost, no obligation initial consultation, I’ll listen attentively to your story, answer any questions you may have, and outline your options (including how to access resources that will help as you heal). If I believe I can assist you as you seek compensation for your losses, I will gladly offer to be your trusted legal representative and advocate.

I understand some of what you and your family may be feeling and experiencing, because I have been through a tragic aviation accident personally. As I lived through and healed from that traumatic event, I developed a sense of compassion for people who have experienced life-changing injuries and tragedies that I brought into my own legal practice.

If you or a loved one is in need of legal advice following an aviation accident, please contact me for a free consultation to learn how I can help you.

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