If a child or minor is injured, can they sue? We’re often asked this question, so we decided to share the answer.
Children (defined as individuals under the age of 18) are not able to directly sue on their own; however their parent, guardian or any interested adult can represent them in making a claim.
When this happens, the person representing the child is referred to as a Litigation Guardian.
A Litigation Guardian is required to make a wide range of decisions affecting the lawsuit. For this reason, the Litigation Guardian must make their decision with regard to the best interests of the child. Also, the Litigation Guardian must not have any interests in the lawsuit that are adverse to that of the child. For example, if the person being considered for a Litigation Guardian is a defendant in the lawsuit, they cannot act as a Litigation Guardian.
Once the child turns 18, they can make claims on their own for something that happened to them as a child. While the Ontario Limitations Act sets out a two-year time limit for making most claims, in the case of an incident involving a minor, this time limit doesn’t begin until their 18th birthday. (It is important to point out, however, that the time limit can be extended, depending on many variables, so we encourage you to always check with a lawyer as to whether you’re out of time.)
Also, if a claim is begun on behalf of a child, that person can apply to the court to continue the lawsuit without a Litigation Guardian after they turn 18.
The Litigation Guardian may approve a settlement of the lawsuit for the child, but any proposed settlement must always be sent to a judge for approval to ensure that it’s fair and in the best interest of the child. This approval is not always given.
Also worth noting is that the parents or guardian do not get the settlement money. It’s usually required to be paid into a court bank account, where it is held, with interest, until the child turns 18.