|
The Rights of Mothers of Unborn Children to Sue for Pecuniary Damages
Romanoski Estate v. Seburn[1] looked at the question of whether a mother of an unborn child whose father died as a result of the negligence of another, could pursue a claim under s.61of the Family Law Act ("FLA") for pecuniary losses. At the heart of the issue was whether or not the mother was a "spouse" within the meaning of Part III of the FLA.
Facts
The plaintiff mother was pregnant when the father of her unborn child was killed in a car accident. At the time of the accident the mother and father had only been living together for approximately 7 months and were not married. The child, Tamia, was born 7 months after the father was killed. A claim for pecuniary damages under section 61 of the FLA was commenced against the driver of the car and the bar that served the driver alcohol. The daughter, mother, and the father's estate were listed as plaintiffs.
Motion
The defendants brought a summary judgment motion arguing that the mother could not claim for damages.
Sweeny J. first concluded that there was no genuine issue requiring a trial and that the summary judgment process provided enough evidence to fairly and justly answer the question raised on the motion.
The mother's ability to pursue a claim comes from section 61 of the FLA which provides that:
61.(1) If a person 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 if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.
"Dependent" and "Spouse" in Part III are defined as:
"dependant" means a person to whom another has an obligation to provide support under this Part;
"spouse" means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited,
(a) Continuously for a period of not less than three years, or
(b) In a relationship of some permanence, if they are the natural or adoptive parents of a child.
The definition of "child" in s.1(1) of the FLA reads:
"child" includes a person whom a parent has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody;
The defendant moving party argued that the definition of "child" in section 1.1 of the FLA requires that the father exhibit a settled intention to treat the child as a child of the marriage and, since the child was not born, that could not occur. The Court found that the definition is an extended definition that was not relevant to the issue before the Court. This definition would apply for the purposes of determining child support to a child who is neither a natural or adopted child.
The mother relied on Dagg v. Cameron (which we blogged about here) in which the applicant was the mother of a child en ventre sa mere at the date of the father's death and the issue was whether she was a "spouse" for the purposes of the Succession Law Reform Act, RSO 1990 c. S. 26 ("SLRA"). However, unlike the FLA, the SLRA includes in the definition of "child" a "child conceived before and born alive after the parent's death".
In the present case, Sweeny J. concluded that:
[25]. . . In interpreting the specific provisions in the FLA, the legal fiction of en ventre sa mère must be considered. Tamia has a claim as an unborn child. It would be consistent with the legal fiction that [the mother] would also have a claim. The birth of Tamia and the relationship between [the mother] and [the father] prior to the death of [the father], establish the "some permanence" requirement of the definition of spouse in Part III of the FLA.
[26] The purpose of s. 61 is to acknowledge the harm done to families as a result of the death of a family member. The section is entitled "right of dependents to sue in tort." In my view, it is consistent with the intention and purpose of the FLA that the mother of a child en ventre sa mère should be entitled to pursue a claim for pecuniary loss arising out of the death the child's father under s. 61 of the FLA.
Sweeny J. concluded that the mother was therefore entitled to pursue her claim under s. 61 of the FLA.
Conclusion
This is yet another case in a long line of cases in family law and estates law where the definition of "spouse" has been litigated. Being a "spouse" is not a cut and dry definition and will depend on many factors, including the legislation under which the proceeding is being brought.
| 
