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September 2021

Amending to Add Family Law Act Claims: Not So Fast!

Case Study: Malik v Nikbakht

Eric Boate
Eric W.D. Boate,
Partner


Ryan R. Taylor
Ryan R. Taylor,
Associate

By Eric W.D. Boate and Ryan Taylor

The Ontario Court of Appeal heard an appeal in Malik v. Nikbakht, 2021 ONCA 176, brought by the plaintiff, Sarfraz Malik. The action arose from a 2013 motor vehicle accident in which Mr. Malik was driving with his wife and three sons. In 2018, Mr. Malik brought a motion for leave to amend the Statement of Claim to add a claim for damages pursuant to s.61 of the Family Law Act, RSO 1990, c. F.3., including damages for:

(a) out-of-pocket expenses incurred for the benefit of his three children;
(b) a reasonable allowance for loss of income and the value of other services rendered to his three children; and
(c) the loss of care, guidance and companionship reasonably expected to be received from his three children had the defendants' negligence not occurred.

Master Wiebe hearing the motion found in favour of the plaintiff, in that, he was bound by the Ontario Superior Court of Justice decision Bazkur v. Coore, 2012 ONSC 3468. Bazkur held that Family Law Act claims are derivative in nature from the underlying claim of an injured family member, thus considered ahead of damages as opposed to a new cause of action. As such, as long as the underlying claim is commenced within the limitation period, a Family Law Act claim may be added even after the limitation period.

...claims made pursuant to s.61 of the Family Law Act must be made within the applicable limitation period under the Limitations Act.

The defendant appealed Master Wiebe's ruling to a judge of the Ontario Superior Court of Justice. On appeal, the Ontario Superior Court of Justice held that it was not bound to follow the decision in Bazkur, finding that a claim under s.61 of the Family Law Act was a cause of action distinct from the underlying claims that were advanced in a timely manner.

The decision was appealed to the Ontario Court of Appeal, which held that a claim under s.61 of the Family Law Act was its own cause of action, distinct from a claim in negligence. In making this finding, the Ontario Court of Appeal held:

13.      Significantly, the new cause of action created by s. 61 of the FLA is "derivative": Camarata, at para. 9. In other words, Mr. Malik's s. 61 FLA claim would be for his damages arising out of injuries caused to his children as the result of allegedly negligent breaches by the defendants of duties of care they owed to his children. As the appeal judge pointed out, at paras. 28-29, this is a fundamentally different claim than Mr. Malik's negligence action, which claimed damages arising out of his own injuries caused as the result of allegedly negligent breaches by the defendants of duties of care they owed to him. Indeed, as the appeal judge recognized, at para. 17, had Mr. Malik brought his s. 61 FLA claims in a timely way, he could have done so even without instituting a negligence action of his own.
...

15.      It follows that the appeal judge was correct in finding that Mr. Malik was not entitled to amend his statement of claim to bring a new statutory cause of action outside of the applicable limitation period.

As such, it is clear that claims made pursuant to s.61 of the Family Law Act must be made within the applicable limitation period under the Limitations Act, 2002, and that these claims are a distinct cause of action, not merely a claim for additional damages.


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