Alix Digout – January 2019
How does a child proceed with pursuing compensation for injuries in an accident caused by someone else’s negligence? Simply put, they need the help of an adult to do so.
Nova Scotia’s Rules of Court provide that a minor is an individual who has not yet reached the age of majority (19 years old in NS). Individuals who are 19 and older are considered capable of making decisions and giving instructions to their counsel unless they have physical, mental or psychological incapacities. For a minor to sue or be sued, the court requires that a Litigation Guardian be appointed. The Litigation Guardian will make all decisions and instruct a lawyer on behalf of the minor.
In order to become a Litigation Guardian, an individual must file a Litigation Guardian’s Statement with the court. The statement must include:
- Consent to be Litigation Guardian for the party;
- 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.
The Nova Scotia 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 should be mindful of their requirement to keep minors who are 16 and older updated and informed in relation to their claim and applicable proceedings, and to encourage discussions between the minor and counsel where appropriate.
Settling a Minor’s Claim:
Court approval of the settlement must be obtained despite the parties agreeing to settle. Regardless of the proposed amount of the settlement, the court must be satisfied the settlement is fair and in the best interest of the minor and their future. A Judge of the Nova Scotia Supreme Court is required to approve the settlement.
There are different requirements for settlements over or 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 of the Litigation Guardian and solicitor 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 and older.
A more streamlined process is in place for approval of settlements on behalf of a minor 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 and the trustee/Litigation Guardian undertakes not to collapse the GIC before the minor reaches 19, unless permitted by the court.
If your child has been injured as a result of another’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.