Alix Digout – Updated February 2023 (Original Post January 2019)
How does a child pursue compensation for injuries caused by someone else’s negligence? Simply put, they need the assistance of an adult to do so.
As per Nova Scotia’s Rules of Court, a minor is an individual who has not yet reached the age of majority (19 years old). Those who are 19 years old and above are considered capable of making decisions and instructing legal counsel unless they have physical, mental, or psychological incapacities. For a minor to sue or be sued, a Litigation Guardian must be appointed. The Litigation Guardian will make decisions and instruct legal counsel on the minor’s behalf.
To become a Litigation Guardian, an individual is required to file a Litigation Guardian’s Statement with the court. The statement must include:
- Their consent to become Litigation Guardian;
- The nature of their relationship with the minor;
- Confirmation counsel has been appointed;
- Confirmation of no adverse interests to that of the minor; and
- Acknowledgement of the minor and/or Litigation Guardian’s potential liability for costs.
Nova Scotia’s Rules of Court set out the following specific duties for a Litigation Guardian:
(1) A Litigation Guardian may make any decision a party could make in a proceeding except the Litigation Guardian must make decisions according to what, in like circumstances, a reasonable person would do in the person’s own interests.
(2) The Litigation Guardian of a child sixteen or more years of age must keep the child informed of the proceeding, consult the child before making decisions that affect the child, and encourage the child to consult directly with counsel.
(3) A Litigation Guardian who, despite the Litigation Guardian’s statement, has an interest in the proceeding adverse to that of the minor must obtain the appointment of a replacement guardian or make a motion for directions.
(4) All duties of a party in a proceeding must be discharged by the Litigation Guardian on behalf of the party.
(5) A Litigation Guardian for a child must advise each other party of the child’s date of birth.
(6) A Litigation Guardian for a person who is not capable of managing their affairs must advise each other party of the details of the disability and any orders or decisions of a judge, court, or tribunal regarding the party and the incapacity.
Litigation Guardians are required keep minors who are 16 years old and above updated and informed about their claim and to encourage discussions between the minor and counsel where appropriate.
Settling a Minor’s Claim:
Court approval of any settlement must be obtained despite the parties agreeing to settle. A Judge of the Nova Scotia Supreme Court is required to approve the settlement. Regardless of the proposed settlement amount, the court must be satisfied the settlement is fair and in the best interest of the minor.
There are different procedural requirements for settlements over $25,000 versus those under $25,000. For settlements over $25,000, the following information must be provided to the court to obtain approval:
- The proposed terms of settlement;
- An order approving settlement and establishing a trust;
- Affidavits from the Litigation Guardian and legal counsel setting out material facts and attaching relevant medical evidence;
- Affidavit of the proposed Trustee/surety;
- Trustee’s Bond; and
- Consent of the minor if they are 16 years old or older.
A more streamlined process is in place for approval of settlements of $25,000 or less. The net settlement funds (less legal fees, disbursements and HST) from an approved settlement under $25,000 do not require a surety or extensive investment structure. Instead, the funds are placed in a GIC, with the trustee/Litigation Guardian undertaking not to collapse the GIC before the minor reaches 19, unless permitted by the court.
If your child has been injured because of another individual’s negligence, the personal injury lawyers at MDW Law would be pleased to meet with you for a free consultation to review their claim and discuss next steps.