An injury claim on behalf of a child is started by a parent or guardian acting as the child’s litigation guardian, because a person under the age of majority cannot start an action in their own name. Any settlement has to be approved by a judge, and the money is held for the child rather than paid to the parent. The limitation clock does not run against a minor, which is a protection and not a reason to wait.
Those four points cover almost every question parents ask in the first meeting.
The Parent Sues as Litigation Guardian, and Is Not the Claimant
The action is brought in the child’s name, by a next friend or litigation guardian. In practice that is a parent, and the court rules in each Atlantic province set out who may act and what they undertake.
The litigation guardian gives instructions and signs documents. The claim, and the money, belong to the child. A parent cannot compromise a child’s claim on their own view of what is fair, which is the reason for the approval step.
A Judge Approves the Settlement Before It Is Paid
No settlement of a child’s claim binds the child until a court approves it. The motion puts the medical evidence, the prognosis, the proposed figure and the proposed legal fees in front of a judge, usually with counsel’s opinion on why the settlement is in the child’s interest.
Judges refuse settlements. Where the prognosis is unsettled or the figure does not reflect a permanent injury, the answer is that the claim is not ready. That protection is the reason a defence insurer cannot buy a child’s claim cheaply at an early stage.
The Money Is Held in Trust Until the Age of Majority
Approved funds are usually paid into court or into a trust, commonly invested in a guaranteed instrument that cannot be collapsed before the child comes of age without the court’s permission. The age of majority is nineteen in Nova Scotia, New Brunswick and Newfoundland and Labrador, and eighteen in Prince Edward Island.
Where the child needs something before then, therapy, equipment, a specialised assessment, an application can be made to release funds for that purpose. The default is that nothing is released, and the parent does not have access to the account.
The Limitation Clock Does Not Run While the Claimant Is a Minor
Each province suspends or postpones the limitation period for a person under the age of majority, and each does it slightly differently.
- Nova Scotia. The Limitation of Actions Act says at section 18 that the limitation periods established by the Act do not run while a claimant is a minor. The Act as published by the House of Assembly sets out the general two year and fifteen year periods it is suspending.
- New Brunswick. Section 17 of the Limitation of Actions Act suspends the operation of any limitation period established by the Act while the claimant is a minor.
- Prince Edward Island. Under the Statute of Limitations, disability includes minority, and a person under disability when the cause of action arose may sue within the ordinary period or at any time within two years after the disability ends.
- Newfoundland and Labrador. The Limitations Act treats a person under nineteen as under a disability, and the action must be started within the ordinary limitation period running from the date the disability ceases.
A Suspended Clock Is Still a Bad Reason to Wait
Waiting until a child turns nineteen means a claim built on records nobody can find, a vehicle long since scrapped, and witnesses who have moved away. The suspension protects a child whose parents did nothing. It does not improve the evidence.
There is a second reason to move. A parent’s own claim, for the expenses they paid and the care they provided, is subject to the ordinary two year deadline and is not suspended by the child’s minority.
The Parent Often Has a Claim of Their Own
Where a parent has paid for treatment, travelled to appointments, lost income to provide care, or in some provinces lost the child’s services and companionship, that is the parent’s claim and it is pleaded alongside the child’s.
Keeping those two apart matters at the end, because the parent’s damages are paid to the parent and the child’s are held in trust. Both belong on the same statement of claim.
An Injury Claim on Behalf of a Child Is Valued Over a Longer Horizon
A permanent injury to a child is valued across a working life that has not started. Future loss of earning capacity has to be projected without an employment history, future care has to be costed for decades, and the effect of a scar or a cognitive deficit is assessed as the child grows into it.
These files move more slowly because of that. The guide chapter on general damages for injured children explains how the non-pecuniary award is assessed, and the chapter on general damages assessment explains the method used for every plaintiff.
What a Parent Should Do in the First Month
Get the child treated and keep every record, including the school’s, because a change in performance after a head injury is evidence a doctor’s file will not hold. Photograph injuries as they heal. Write down what the child could do before and cannot do now.
Do not give a recorded statement to the other driver’s insurer and do not sign an authorisation for the child’s full medical history. Where the injury arose in a collision, the firm’s car accident lawyers start the file and deal with the adjuster, and you can read what the firm can do at each stage.