Birth Injury Claims in Ontario: Cerebral Palsy, HIE and the Deadlines for Children

Your child was supposed to be born healthy. Instead, something went wrong around the time of birth, and now you are raising a child with cerebral palsy, a brain injury, or a disability that will shape the rest of their life. You are exhausted, you are grieving the future you imagined, and somewhere underneath all of it is a hard question you may feel guilty even asking: could this have been prevented, and does someone have to answer for it? This article is for parents in exactly that position. It is written plainly, and it does not pretend the law is simple or that money can undo what happened.

Here is the most important thing to know up front, because it surprises almost everyone and it costs families dearly. Your child's own claim for their own injuries is protected. In Ontario, the clock on a child's claim generally does not even start to run while they are a minor, so a claim for an injury at birth can often be brought years later. But your own claim, as a parent, for your own losses, is not protected the same way. It runs on the ordinary deadline, and it can quietly expire while your child is still a toddler. Many families discover this too late. If you take nothing else from this page, take that.

This guide explains what birth injuries like cerebral palsy and hypoxic ischemic encephalopathy (HIE) are, what you must prove to hold a doctor or hospital responsible, why causation is so difficult, how large the lifetime cost of care can be, and, above all, how the deadlines work, so that a limitation period does not decide the question before you ever get answers. The framework comes from the common law of negligence, the Limitations Act, 2002, and the Family Law Act.

If you think your child may have been harmed by negligent maternity or newborn care, the single most useful thing you can do is speak with a birth injury lawyer in Ontario early. These claims turn on hospital records and expert medical opinion that take a long time to gather, the deadlines are unforgiving, and, as you will see, your own family's window can be much shorter than your child's. This article is general information about Ontario law. It is not legal advice, and reading it does not create a lawyer and client relationship. Every claim turns on its own facts and medical evidence.

What is a birth injury?

A birth injury is harm to a baby or, sometimes, the mother that happens because of what did or did not occur during pregnancy, labour, delivery, or the newborn period. Not every difficult birth causes a lasting injury, and not every lasting injury is anyone's fault. The term covers a wide range, from temporary bruising that heals in days to permanent, life altering brain damage. The claims that this article is about are the serious ones: the injuries that leave a child needing care and support for life.

It helps to separate the medical description from the legal question. Medically, doctors describe what happened to the child's body and brain; legally, the question is narrower and harder, namely whether the care was negligent and whether that negligence caused the injury. A child can have a devastating birth injury with no negligence behind it at all. The most serious birth injuries usually involve the brain, because the newborn brain is fragile and very sensitive to a shortage of oxygen, which is why so many birth injury claims centre on cerebral palsy and the oxygen related brain injury that often precedes it.

What is cerebral palsy?

Cerebral palsy, often shortened to CP, is not a single disease. It is a group of permanent disorders of movement and posture caused by damage to the developing brain, before, during, or shortly after birth. The damage does not get worse over time, but it is permanent. Depending on the part of the brain affected and how badly, cerebral palsy can be mild, causing a slight limp or awkward hand, or profound, leaving a child unable to walk, speak, or care for themselves, and often accompanied by seizures, feeding difficulties, and cognitive impairment.

Doctors describe different forms of cerebral palsy by the movement problem they cause. Spastic cerebral palsy involves stiff, tight muscles. Dyskinetic cerebral palsy involves involuntary movements. Hypotonic cerebral palsy involves unusually low muscle tone, so the child seems floppy. The word "hypotonic" matters for this article, because it is the diagnosis at the centre of one of the leading Ontario cases discussed below.

It is important, and only fair, to say clearly that cerebral palsy has many causes. It can result from genetic conditions, infections during pregnancy, strokes in the womb, prematurity, and events that no one could have prevented. Research has steadily shown that a large share of cerebral palsy is not caused by anything that happened during labour and delivery. A diagnosis of cerebral palsy, on its own, is not evidence that anyone did anything wrong. Whether a particular child's cerebral palsy was caused by negligent care is a medical and legal question that can only be answered by examining that child's records with expert help.

What is HIE (hypoxic ischemic encephalopathy)?

Hypoxic ischemic encephalopathy, or HIE, is a brain injury caused by a lack of oxygen and blood flow to a newborn's brain around the time of birth. Broken into plain words, "hypoxic" means too little oxygen, "ischemic" means too little blood flow, and "encephalopathy" means the brain is not working normally. HIE is one of the more common pathways to a birth related brain injury, and in serious cases it can lead to cerebral palsy, developmental delay, cognitive impairment, and epilepsy.

The brain can be starved of oxygen at birth for many reasons: the umbilical cord can be compressed or prolapse, the placenta can separate too early (placental abruption), the uterus can rupture, a baby can get stuck during delivery, or labour can simply become too stressful for a baby who was already vulnerable. In many of these situations, timely recognition and a prompt delivery can prevent or limit the injury, which is why the standard of care during labour focuses so heavily on watching the baby closely and acting quickly when there is trouble.

Here again, the same caution applies. HIE can occur despite excellent care, and some of the events that cause it unfold too fast for anyone to prevent. The existence of HIE does not prove negligence. What can point to negligence is a failure to monitor the baby properly, a failure to recognize clear warning signs, or an unreasonable delay in delivering a baby who was in distress.

Why do birth injury deadlines matter so much?

In birth injury cases, the deadlines are the trap that catches good families with real claims, because of a mismatch almost no parent knows about until a lawyer explains it: your child's deadline and your own deadline are not the same, and yours is much shorter.

Think about how a birth injury unfolds. In the first months you are focused entirely on your baby's survival, you may be told the outcome was tragic but unavoidable, and you have no capacity to chase records or lawyers. Years can pass in survival mode. Throughout those years your child's own claim is generally safe, because the law suspends it while they are a minor. But your own claim, as a parent, is running the whole time, and if it expires it is gone, even though your child's claim lives on. Families routinely lose part of their own compensation this way, not because their claim was weak, but because no one told them the two clocks run differently. That is the single biggest reason to get advice early.

What are birth injury claims worth in Ontario?

Birth injury claims that succeed tend to produce some of the largest awards in Canadian personal injury law. This is not because the courts are generous, and it is not a windfall; it is arithmetic. A child injured at birth may need paid care, therapy, equipment, and support for many decades, and the law tries to fund every one of those years. The pain and suffering portion is comparatively small and capped; the truly large numbers come from the lifetime cost of care and the income the child will never be able to earn.

The table below sets out the main heads of damages in a serious birth injury claim, who they compensate, and roughly how large they tend to be. The dollar ranges are general illustrations, not promises, and every case turns on its own medical and expert evidence.

To see how real these numbers are, consider two decisions that Ontario courts and the Supreme Court of Canada have actually decided. In Cheung v. Samra, 2022 ONCA 195, the parties had agreed before trial that the child's damages, if the doctors were found liable, were $14.9 million. The fight at trial was not about the amount; it was about liability and causation. In Cojocaru v. British Columbia Women's Hospital and Health Centre, 2013 SCC 30, the Supreme Court of Canada upheld an award of about $4 million ($4,045,000) against a single obstetrician. These are not outlier fantasies. They are what a lifetime of care for a severely disabled child actually costs.

One number that is not large is pain and suffering. In a line of 1978 decisions, the Supreme Court of Canada capped non pecuniary damages, and that cap, adjusted for inflation, sits at roughly $465,000 to $470,000 for 2026. It applies to every personal injury claim, including birth injury, so even in the most heartbreaking case the pain and suffering portion cannot exceed that ceiling. Birth injury awards still reach many millions because future care and lost earning capacity are not capped, and for a young child those two heads dwarf everything else, as our guide on how future care becomes the dominant number in catastrophic cases explains.

A simplified illustration of how the numbers add up

The following figures are illustrative and simplified, to show why the totals are so large; they are not a formula or a prediction for any child. Real calculations are done by actuaries and economists, who reduce future costs to a present value, add a gross up for the tax the invested fund will pay, and adjust for contingencies. The point here is only to show the order of magnitude.

Imagine a child with severe cerebral palsy whose care, therapy, medication, equipment, and case management add up to about $200,000 in a representative year, broken down as follows.

Now stretch that across a long life. Even after reduction to present value, a need of roughly $200,000 a year across many decades produces a future care claim in the millions on its own. Add the income the child will never earn, home and vehicle modifications, and the management fee and tax gross up, and you reach totals like the ones in the real cases above. That is why a birth injury claim is worth the years of work these cases take.

What do you have to prove in a birth injury claim?

A birth injury claim is a medical malpractice claim, and medical malpractice is not a special area of law with its own statute; it is the ordinary law of negligence applied to health care. That means you have to prove the same four things as in any negligence case: that the provider owed your child a duty of care, that the care fell below the accepted standard, that the substandard care caused the injury, and that real harm resulted. We explain these four elements in general terms in our guide on whether you have a medical malpractice case in Ontario; here we focus on how they play out in the delivery room.

You must prove each element on a balance of probabilities, meaning more likely than not. Duty of care is almost never in dispute, because a provider caring for a mother and baby plainly owes them a duty, and harm is usually obvious, because these are children with serious disabilities. As in most medical cases, the real battle is fought on the middle two elements, the standard of care and causation, both decided almost entirely on expert medical evidence.

What is the obstetrical standard of care?

The standard of care is the level of skill and care the law expects of a reasonable provider in the same position. The leading case is the Supreme Court of Canada decision in ter Neuzen v. Korn, 1995 CanLII 72 (SCC), which Ontario courts still apply today: a doctor must practise in accordance with a prudent and diligent doctor in the same circumstances. Two refinements matter here. First, a specialist such as an obstetrician is held to the standard of a reasonable specialist, not that of a family doctor. Second, the standard is not perfection; a judgment call that turns out badly can still meet it if a reasonable specialist could have made it at the time with the information available.

In the maternity setting, the standard of care touches many moments. During pregnancy it can include recognizing and managing risk factors such as intrauterine growth restriction (a baby not growing as expected in the womb), preeclampsia, gestational diabetes, and a pregnancy that has gone past its due date. During labour it centres on monitoring the baby's heart rate, recognizing signs of distress, and responding quickly, including by expediting delivery when the baby is in trouble. It also includes managing emergencies such as shoulder dystocia, cord prolapse, and uterine rupture, and resuscitating a compromised newborn.

Are doctors judged with hindsight?

No, and this is one of the most important and least understood parts of the standard of care. In ter Neuzen v. Korn, the Supreme Court was clear that a provider is judged by the knowledge and standards of the time, not by what medicine or the family learned afterward. It is easy, looking back at a catastrophic outcome, to feel the danger must have been obvious. The law asks the fairer question of whether a competent provider, watching the situation unfold in real time, should have recognized and acted on it. Because obstetrical care involves technical matters, the standard is generally proven by expert evidence about accepted practice. Following a recognized practice normally shows the standard was met, but ter Neuzen recognized an exception: a common practice that is itself fraught with obvious risk can still be found negligent. In plain terms, "this is how it is usually done" is a strong defence, but not an absolute one.

Is a bad outcome proof that the standard was breached?

No, and this is the hardest truth for a grieving parent to hear. A devastating outcome, even the worst imaginable, does not by itself prove the care was negligent. Childbirth carries real, unavoidable risk, and some babies are harmed despite flawless care. To prove a breach, you have to show, through a qualified expert, what a reasonable provider would have done differently and that the provider failed to do it. This is why these cases cannot be run on outrage alone, however justified. They are built on records and expert opinion.

Did the substandard care cause the injury?

Even if you prove the care was negligent, you must still prove that the negligence caused your child's injury. In birth injury cases, causation is usually the hardest element by far, and it is where many otherwise sympathetic claims collapse.

The default test is the "but for" test, confirmed by the Supreme Court of Canada in Clements v. Clements, 2012 SCC 32. You must prove, on a balance of probabilities, that but for the provider's negligence, the injury would not have happened. In a birth injury case, that usually means proving that if the baby had been delivered sooner, or monitored properly, or resuscitated correctly, the brain injury would probably have been avoided or would have been significantly less severe. If the injury would have occurred anyway, causation fails, even if the care was substandard.

Causation is difficult here for a specific reason: the defence will almost always argue that the brain injury happened before labour, or was caused by a genetic condition, an infection, or a prenatal stroke, rather than anything in the delivery room. The timing becomes a battleground fought with brain imaging, umbilical cord blood results, placental pathology, and the pattern of the injury itself. Proving the damage occurred during labour, and that earlier action would have prevented it, requires strong, specialized expert evidence.

There is, however, real help for injured patients, from the Supreme Court of Canada's medical malpractice decision in Snell v. Farrell, 1990 CanLII 70 (SCC). The Court held that causation need not be proven with scientific precision; it is a practical question of fact answered by ordinary common sense. Crucially, where the defendant's own negligence has made it harder to prove exactly what happened, a court may draw an inference of causation in the absence of persuasive evidence to the contrary. This matters enormously in birth injury cases, because a common allegation is precisely that the provider failed to monitor the baby: when a hospital does not properly record or watch a baby's heart rate, it cannot then complain that the parents cannot pinpoint the exact minute the oxygen supply failed. Snell prevents that unfairness.

How the leading Ontario cases show these principles at work

Three real decisions show how the standard of care and causation come together in birth injury litigation. None of them is a template for any other case, but together they illustrate the landscape.

In Cheung v. Samra, 2022 ONCA 195, the child was affected by intrauterine growth restriction, meaning the baby was not growing normally in the womb. The allegation was that the obstetricians were negligent for not delivering sooner in light of that condition, and that the delay caused the child's brain injury. A jury found both defendant doctors negligent and found that their negligence caused the child's hypotonic cerebral palsy. Because the parties had already agreed the damages were $14.9 million, the only questions for the jury were liability and causation. The trial judge then set the verdict aside and ordered a new trial, on the basis that the jury's answers on causation were too brief and conclusory. In 2022 the Court of Appeal disagreed and restored the jury's verdict and the $14.9 million award, holding that a civil jury is not required to give detailed reasons where there was evidence capable of supporting its answers. The case is a reminder both of how large these awards are and of how hard defendants fight, even after losing before a jury.

In Gutbir v. University Health Network, 2012 ONCA 66, a baby was born permanently brain damaged after a labour in which, a jury found, the fetal heart rate was not adequately monitored. Clear abnormalities in the heart rate ought to have been detected and acted on with an earlier delivery, but were not, and the result was a prolonged period without enough oxygen before birth. The obstetrician and the hospital were found liable. Gutbir is a textbook illustration of the intrapartum monitoring claim: the negligence lies in failing to watch the baby closely enough and to act quickly enough when the warning signs appear.

In Cojocaru v. British Columbia Women's Hospital and Health Centre, 2013 SCC 30, the mother suffered a uterine rupture during labour, linked to the scar from a previous caesarean, which cut off the baby's oxygen supply and caused a brain injury that led to cerebral palsy. The Supreme Court of Canada upheld a finding of negligence against one obstetrician for failing to obtain the mother's informed consent to attempting a vaginal birth after a previous caesarean, because the significance of the risk of uterine rupture had not been adequately conveyed. The Court upheld the award of about $4 million against that obstetrician, while setting aside the findings against the hospital, the nurse, and the other doctors. Although Cojocaru is a British Columbia case, it was decided by the Supreme Court of Canada, so its reasoning on informed consent applies in Ontario too. It shows that a birth injury claim is not only about what happened during delivery; sometimes it is about a conversation that should have happened weeks earlier.

Illustrative examples: how birth injury claims pass or fail

The following are illustrations only. They are not real clients, they are not based on the cases above, and they are not predictions about any particular situation. They exist to show how the elements play out, and why a claim can fail even when a family's grief is entirely real.

A missed growth problem and a delayed delivery (likely a strong claim). A pregnancy is known to be complicated by poor fetal growth. Late in the pregnancy, tests suggest the baby is not coping well, but the delivery is not expedited for several more days. The baby is born severely compromised and is later diagnosed with cerebral palsy. An expert obstetrician opines that a reasonable specialist would have delivered the baby promptly once the warning signs appeared, and an expert in newborn brain injury opines that earlier delivery would probably have avoided most of the harm. Here the standard of care and causation can both be met, and the child's losses are lifelong.

A tragic outcome with a prenatal cause (likely fails at causation). A baby is born with a serious brain injury, and the family is devastated. But the medical evidence, including brain imaging and placental findings, shows the injury happened weeks before labour began, likely from an infection or a stroke in the womb, and that nothing during labour caused or worsened it. Even if some aspect of the labour care could be criticized, the parents cannot prove that different care would have changed the outcome, so causation fails. This is one of the hardest results in this area of law, and it is common, because so much brain injury has a prenatal or genetic origin.

A known risk despite careful care (likely fails at the standard of care). A delivery is managed competently, a genuine obstetrical emergency arises suddenly, and the team responds reasonably and quickly, but the baby is still harmed because the emergency simply unfolded too fast to prevent the injury. It is a terrible outcome flowing from a recognized risk of childbirth, not from negligence. Because the standard of care was met, there is no breach, and no claim, however unfair that feels.

What is not a birth injury claim, and what you can still do

Understanding what does not amount to a claim can bring a measure of peace, and stop a family from either blaming themselves or chasing a case that cannot succeed. Several things that feel like malpractice are not, in law.

A diagnosis of cerebral palsy, by itself, is not proof of negligence; as explained above, much cerebral palsy has causes that have nothing to do with labour and delivery. A difficult or frightening birth is not proof of negligence either, because most difficult births do not involve substandard care. An emergency caesarean is not evidence that something was done wrong; it is often evidence that the team recognized a problem and acted. And a bad outcome despite reasonable care is, sadly, part of the reality of childbirth, not a legal wrong.

There is one thing every family can and should do, regardless of whether a claim ultimately exists: get answers. You have a right to your medical records and to an explanation, and a lawyer can obtain the complete file and have it reviewed by qualified experts. Sometimes the most valuable outcome is simply a clear, honest answer to whether the injury could have been prevented. If it could not, that is painful, but it lets a family stop wondering; if it could, there is a claim to pursue, and the work of funding your child's future begins.

Whose claim is it? The child's claim and the parents' Family Law Act claim

This is the heart of the article, and the part most families get wrong. In a birth injury case there is not one claim but at least two, and they belong to different people and run on different clocks.

The first is the child's own claim, for the child's own injuries: this is where the future care, the lost earning capacity, and the child's pain and suffering live. It is by far the larger claim, and the one the law protects by suspending the deadline during childhood.

The second is the parents' own claim, brought under section 61 of the Family Law Act. This is not the child's claim; it is the parents' compensation for their own losses: the value of the care, guidance, and companionship they have lost, the nursing and personal care they themselves provide, out of pocket expenses, and, in appropriate cases, their own grief and mental distress. Siblings, grandparents, and other close family members can also have Family Law Act claims. Over a childhood of hands on caregiving, the value of a parent's own claim can be very substantial.

The trap is that these two claims do not share a deadline. The table below is the whole point of this section.

Read that table twice. The child may have until around age twenty; the parents may have only about two years. If the parents wait, focused understandably on their child, their own claim can be gone long before the child's is even close to expiring. This is not a rare technicality; it is a routine way that families lose part of their compensation.

What are the deadlines to sue for a birth injury in Ontario?

Now we can put the deadlines together. The rules come from the Limitations Act, 2002, and they reward acting early and punish waiting, with the punishment falling hardest on the parents' own claims.

How does discoverability work?

Under section 5 of the Limitations Act, 2002, a claim is discovered on the earlier of two dates: the day you first knew the key facts about your claim, and the day a reasonable person in your circumstances first ought to have known them. Those facts are, roughly, that an injury occurred, that it was caused by an act or omission, that the act or omission was the provider's, and that a court proceeding would be an appropriate remedy.

Discoverability matters here because negligence is so often hidden at first. Parents are frequently told the outcome was an unavoidable tragedy, and may only learn that an error may have occurred years later, when a later specialist raises a question or a records review reveals what the monitoring strips actually showed. In that situation the parents' two year clock may not start on the day of birth; it can start when they discovered, or reasonably should have discovered, that negligence probably caused the harm. But there is a catch: the law presumes you knew on the day of the event unless you prove otherwise, and it expects you to investigate a reasonable suspicion. Discoverability is a shield for the genuinely unaware, not a licence to sit on a claim you had good reason to look into.

Why does the child's claim get suspended?

Under section 6 of the Limitations Act, 2002, the basic limitation period does not run during any time in which the person with the claim is a minor and is not represented by a litigation guardian. In plain terms, a child's own claim is generally paused until they turn 18, unless someone is formally appointed to act for them, which is why a claim for an injury at birth can often be started many years later.

Section 15(4)(b) provides matching protection against the ultimate deadline. Ordinarily a 15 year longstop bars most claims measured from the date of the act or omission, even if never discovered, but that period is also suspended while the person with the claim is a minor without a litigation guardian, so it does not quietly extinguish a birth injury claim during a childhood. Together, sections 6 and 15(4)(b) keep a child's claim alive through the years when the family cannot possibly be litigating.

Should you wait until your child turns 18?

No, and treating the suspension as permission to wait is a serious mistake. First, and most importantly, the parents' own Family Law Act claims are not suspended and can expire while you wait. Second, the child's protection is not absolute: the suspension under section 6 applies while the child is a minor and unrepresented by a litigation guardian, and in some circumstances steps to appoint a litigation guardian can start the child's clock, so do not assume it is frozen solid. Third, evidence does not wait; staff move on, records are archived, and the monitoring strips become harder to interpret as the years pass. Fourth, your child needs the funds for care now, not at twenty. The strongest birth injury cases are the ones started early, while the trail is fresh. If you have any concern, the right time to get advice is now, not on a future birthday.

How do you protect a birth injury claim?

You cannot change what happened at your child's birth, but you can protect your family's ability to prove it and to bring both claims in time. A few practical steps help.

• Get the complete medical records. Request the full chart for the pregnancy, labour, delivery, and newborn period from every provider involved. The records that matter most include the electronic fetal monitoring strips, the labour nursing notes, the umbilical cord blood gas results, the operative note if there was a caesarean, the newborn resuscitation record, the neonatal intensive care records, and any early brain imaging. These are the backbone of the claim, and they are what an expert needs to see.
• Write down what you remember while it is fresh. Keep a dated account of what you were told, by whom, and when, and the names of everyone involved in the birth. Memory fades and staff change.
• Keep track of your child's needs and your own losses. Note the care you provide, the appointments, the equipment, the missed work, and the out of pocket costs. Both the child's future care claim and the parents' Family Law Act claim are built partly on this record.
• Be careful about signing anything. Do not sign releases or give detailed recorded statements to a hospital, insurer, or defence representative before you have legal advice.
• Do not wait, and watch the parents' clock in particular. Even if you are unsure whether there was negligence, an early consultation preserves your options and protects the parents' own claim, the one most likely to be lost to delay.
• Get an early expert assessment. Because these cases live or die on expert opinion, a lawyer can arrange the records review and preliminary expert input to tell you, realistically, whether the standard of care and causation can be proven before any deadline passes.

The single most damaging mistake is waiting, and it does the most harm to the parents' own claims. Time is not neutral in these cases. It works against the family.

How VC Lawyers can help

Birth injury claims are among the most demanding and most important cases in personal injury law. They demand complete hospital records, specialized experts in obstetrics and newborn brain injury, and the resources to fund years of litigation against well defended hospitals and their insurers. They are won on preparation, and lost, needlessly, when a family waits too long.

At VC Lawyers, we obtain and review the full maternity and newborn record, work with qualified experts to test whether the obstetrical standard of care was met and whether any breach caused your child's injury, and build the future care case so that a lifetime of your child's needs is fully captured. We also identify and protect every deadline that applies, including the parents' own Family Law Act claims, which run on a shorter clock than the child's and are the ones most often lost.

We work on a contingency fee basis for personal injury clients, which means no fees unless we recover for you, and the first consultation is free. If you believe your child may have been harmed by negligent maternity or newborn care, do not try to judge the standard of care and causation on your own, and do not let a deadline decide the question before you have answers. Contact VC Lawyers for a free consultation with a Toronto personal injury lawyer.

This article is general information about Ontario law. It is not legal advice, and reading it does not create a lawyer and client relationship. Every claim turns on its own facts and medical evidence, the standard of care and causation are decided on expert opinion, and the dollar figures and deadlines can change. For advice about your situation, speak with a lawyer.

Key terms explained

• Cerebral palsy (CP). A group of permanent disorders of movement and posture caused by damage to the developing brain. It has many possible causes, only some of which involve negligent care.
• Hypoxic ischemic encephalopathy (HIE). A newborn brain injury caused by too little oxygen and blood flow to the brain around the time of birth. It can lead to cerebral palsy.
• Intrauterine growth restriction (IUGR). A condition in which a baby does not grow as expected in the womb, which can be a warning sign that calls for closer monitoring and, sometimes, earlier delivery.
• Fetal heart rate monitoring. Watching the baby's heart rate during labour, often by electronic monitor, to detect signs of distress. Failing to monitor or to act on abnormal patterns is a common allegation in birth injury claims.
• Standard of care. The level of skill and care expected of a reasonable provider in the same position, measured by ter Neuzen v. Korn. A specialist is held to the standard of a reasonable specialist.
• Causation (the "but for" test). The requirement, confirmed in Clements v. Clements, to prove that but for the negligence, the injury would not have happened. It is usually the hardest part of a birth injury case.
• Litigation guardian. An adult, usually a parent, appointed to bring or defend a claim on behalf of a child or an incapable person.
• Family Law Act claim. A separate claim under section 61 of the Family Law Act by family members for their own losses caused by an injury to a loved one. It runs on the ordinary limitation clock, not the child's suspended clock.
• Limitation period. The deadline to start a claim. The basic period is 2 years from discovery, subject to suspensions for minors and incapable persons.
• Ultimate limitation period. The 15 year outer deadline measured from the act or omission, which is itself suspended while a claimant is a minor without a litigation guardian.
• Cost of future care. The projected lifetime cost of a child's care, therapy, equipment, and support. In serious birth injury cases it is by far the largest part of the award.
• Non pecuniary damages. Compensation for pain, suffering, and loss of enjoyment of life, capped by the Supreme Court of Canada at roughly $465,000 to $470,000 for 2026.