Settlement of injury cases involving minors creates certain challenges for personal injury lawyers and the parents of the minors. The Rules of the Court provides special considerations when a minor settles an injury claim. Those Rules are meant to protect a minor’s interest in settlement proceeds and ensure that the settlements and fees charged by lawyers are fair and reasonable.
When someone under the age of 18 starts a lawsuit, they require a “litigation guardian”. The litigation guardian is typically a parent and that person instructs the lawyer and makes decisions in the lawsuit including when to settle and for how much.
While the litigation guardian makes decisions during the court action or in negotiations prior to a court action, any settlement reached requires approval by a Justice of the Ontario Superior Court of Justice. This requirement for approval applies to situations where a settlement is reached before litigation is started and where litigation has already been started.
Steps Involved in Settling Injury Cases for Minors
On an application or motion to approve a settlement involving a minor (child under the age of 18):
- the litigation guardian must file an affidavit setting out the material facts,
- and the reasons why they approve the proposed settlement,
- an affidavit of the lawyer acting for the minor through the litigation guardian setting out why the settlement is fair and reasonable,
- if the child is 16 years or older, that child must provide a consent to the settlement and draft order.
- The litigation guardian must also provide a copy of the Minutes of Settlement.
- If the Justice is satisfied the settlement is fair, they will sign an Order to that effect and the settlement monies for the minor are paid into Court (to the accountant of the Superior Court of Justice).
- Sometimes a Justice may refuse to sign the proposed Order either because they do not have enough information, or they believe the settlement is not fair. In that case, the litigation guardian must negotiate a better settlement or provide additional information and re-apply for approval.
The Ottawa injury lawyers at QTMG focus on all types of injury cases throughout Ontario. We are experienced in settling injury cases for minors and we offer a no-fee guarantee. So, you don’t pay anything until you settle. Request a free case evaluation today.