What is an Infant Settlement Motion?
When a settlement has been reached that involves a person under the age of 18, that child must be represented by a “litigation guardian”. A Litigation Guardian is a person over the age of 18 who has authority to instruct legal counsel throughout the litigation and make decisions about the child. The Litigation Guardian is presumed to make all decisions in the best interests of the person under disability and is usually a child’s parent or trusted family member.
In personal injury litigation, it is not uncommon that the injured person is under the age of 18 and is represented by a Litigation Guardian. When the child’s claim is resolved and a settlement is reached, the Litigation Guardian and the other side will sign “minutes of settlement” which will likely state that the settlement is “subject to approval by the Court”. This is a normal condition since under the Rules of Civil Procedure which governs the conduct of and steps in litigation, all settlements involving minors must be approved by the Court. Therefore, while the Litigation Guardian is able to make decisions in the litigation and agree to a settlement on behalf of the child, the settlement requires approval by the Court. No settlement involving children is binding without court approval.
Since the majority of cases settle before reaching trial, it is likely that an infant settlement motion will be required if you have started a court action on behalf of a child. If no litigation was commenced and the settlement was reached prior to initiating a court action, then the approval would be filed by way of a court application as opposed to a court motion.
The motion to approve settlement must be filed under Rule 7.08 of the Rules of Civil Procedure which states as follows:
APPROVAL OF SETTLEMENT
Settlement Requires Judge’s Approval
7.08
(1) No settlement of a claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge.
(2) Judgment may not be obtained on consent in favour of or against a party under disability without the approval of a judge.
Exception
(2.1) This rule does not apply to a settlement or judgment respecting the appointment under the Substitute Decisions Act, 1992 of a guardian of property or guardian of the person.
Where no Proceeding Commenced
(3) Where an agreement for the settlement of a claim made by or against a person under disability is reached before a proceeding is commenced in respect of the claim, approval of a judge shall be obtained on an application.
Material Required for Approval
(4) On a motion or application for the approval of a judge under this rule, there shall be served and filed with the notice of motion or notice of application,
(a) an affidavit of the litigation guardian setting out the material facts and the reasons supporting the proposed settlement and the position of the litigation guardian in respect of the settlement;
(b) an affidavit of the lawyer acting for the litigation guardian setting out the lawyer’s position in respect of the proposed settlement;
(c) where the person under disability is a minor who is over the age of sixteen years, the minor’s consent in writing, unless the judge orders otherwise; and
(d) a copy of the proposed minutes of settlement.
(4.1) If there is no litigation guardian and the settlement that is the subject of the motion or application is in respect of a matter under the Substitute Decisions Act, 1992 to which this rule applies, the affidavit referred to in clause (4) (a) shall be provided by the moving party or applicant (as the case may be), and the affidavit referred to in clause (4) (b) shall be provided by his or her lawyer.
Children’s Lawyer or Public Guardian and Trustee
(5) On a motion or application for the approval of a judge under this rule, the judge may,
(a) direct that material filed on the motion or application be served on the Children’s Lawyer or on the Public Guardian and Trustee; and
(b) direct the Children’s Lawyer or the Public Guardian and Trustee, as the case may be, to make a written report stating any objections he or she has to the proposed settlement and making recommendations, with reasons, in connection with the proposed settlement.
MONEY TO BE PAID INTO COURT
7.09 (1) Any money payable to a person under disability under an order or a settlement shall be paid into court, unless a judge orders otherwise.
(2) Any money paid to the Children’s Lawyer on behalf of a person under disability shall be paid into court, unless a judge orders otherwise.
The motion seeking approval of the settlement will be filed at court and a judge will review the motion. The motion is usually done in writing and simply filed for a judge to review. The judge will either approve the terms of the settlement or not approve it and give directions on what additional information is needed to approve the settlement.
After the judge approves the settlement, the settlement funds are typically paid into court to be administered by the accountant of the Superior Court of Justice. It is possible to obtain an order to have the settlement funds administered in trust by someone other than the accountant of the Court (such as an investment advisor). In such a case, evidence will need to be provided to the judge as to why that option would be in the child’s best interests. The judge may also release some of the funds to pay for the child’s care such as medical expenses or school related expenses.
There are significant differences in procedure when representing a child. You should seek the assistance of an experienced injury lawyer that has experience dealing with child injury cases.
We offer free consultations.
Call us at 613-315-4878.
Marc N. Quinn – Ottawa child injury lawyer