If a wrongful death settlement involves a minor child in Markham, Ontario law mandates that a Superior Court of Justice judge must formally approve the child’s payout. The funds are then securely held by the Accountant of the Superior Court and earn interest until the child reaches their 18th birthday.
When a parent or sibling is tragically killed in a Markham accident, the youngest members of the family often suffer the most profound long-term losses. Under Ontario’s Family Law Act, children are legally entitled to claim substantial financial compensation for the loss of their parent’s care, guidance, companionship, and future financial support.
However, the legal system recognizes that children under the age of 18 cannot sign legal contracts, nor can they safely manage hundreds of thousands of dollars. To prevent funds from being mismanaged by well-meaning (or financially irresponsible) guardians, the province has instituted incredibly strict rules regarding settlements for minors.
You cannot simply agree to an insurance company’s offer and deposit a child’s settlement into a joint family bank account. The process requires significant judicial oversight. Here is exactly how a wrongful death claim involving minor children is finalized in Ontario.
Step-by-Step Process for Settling a Child’s Claim
Settling a minor’s claim adds an extra layer of procedure to the standard lawsuit timeline. Your Markham personal injury lawyer will handle these complex legal motions on your family’s behalf.
Step 1: Appointing a Litigation Guardian
Because a child cannot start a lawsuit themselves, an adult must act on their behalf. This person is called a “Litigation Guardian,” and it is usually the surviving parent or legal guardian. The Litigation Guardian works with the law firm to make legal decisions during the case, but they do not gain personal ownership of the child’s eventual compensation.
Step 2: Negotiating the Settlement
Your lawyer will calculate the child’s specific damages. This includes calculating how much financial support the child would have received from the deceased parent until they finished their post-secondary education. Once a global settlement is reached with the at-fault driver’s insurance company, a specific portion of that money must be distinctly allocated to the minor child.
Step 3: Infant Settlement Approval Motion
Under Rule 7 of the Rules of Civil Procedure, no settlement involving a minor is valid in Ontario until a judge approves it. Your lawyer will draft a detailed motion and present it to a judge at the Superior Court of Justice.
The judge will review the lawyer’s fees, the evidence of the case, and the amount allocated to the child to ensure the settlement is exceptionally fair and in the child’s best interest.
Step 4: Transfer to the Accountant of the Superior Court
Once approved, the insurance company does not hand the cheque to the surviving parent. Instead, the child’s funds are paid directly to the Accountant of the Superior Court of Justice. The government holds this money in a secure, interest-bearing account. On the child’s 18th birthday, they receive the full sum plus the accumulated interest.
How Much Does it Cost in Markham?
Protecting a child’s financial future involves some administrative and legal costs, but the court ensures they are fair.
| Legal Fees for Minors | A judge must specifically approve the percentage your lawyer charges on the child’s portion of the settlement, ensuring the child is not overcharged. |
| Motion Fees | Filing the formal approval motion at the Superior Court incurs court fees, which are generally covered as disbursements by your law firm. |
| Office of the Children’s Lawyer | In some complex cases, the Office of the Children’s Lawyer (OCL) may intervene to review the file. Their involvement is a free government service to protect the child. |
How Long Does the Process Take?
A standard wrongful death lawsuit generally takes 2 to 4 years to resolve. If a minor is involved, the required Infant Settlement Approval Motion will add roughly 2 to 4 months to the finalization of the case. Importantly, while adults have exactly two years to file a lawsuit, the two-year limitation period for a minor often does not officially begin until they turn 18. However, waiting is highly discouraged; it is best to have a Litigation Guardian file the claim immediately while evidence is fresh.
Frequently Asked Questions (FAQ)
Can the surviving parent access the child’s money for living expenses?
Generally, no. The funds held by the Accountant of the Superior Court are strictly locked away. However, if there is a severe financial emergency directly related to the child’s welfare, the parent can apply to the court to request an early release of specific funds, though judges are very reluctant to approve this.
Does the child have to testify in a Markham courtroom?
It is incredibly rare for a child to ever step foot in a courtroom. The Litigation Guardian provides all necessary information, and the settlement approval is usually handled by lawyers submitting written documents to a judge.
What happens to the money when the child turns 18?
On their 18th birthday, the child reaches the age of majority in Ontario. They can contact the Accountant of the Superior Court of Justice, provide proper identification, and the full amount (with interest) is released directly to them to use however they see fit.
Can we put the settlement into an RESP instead?
In some circumstances, a judge may approve an alternative structured settlement or trust, such as an annuity that pays out over time for university, but it requires extensive proof that this alternative structure is far more beneficial and secure than the government’s court account.
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