Neutral Citation: 1995 ONICDRG 119

File No. A-005175

ONTARIO INSURANCE COMMISSION

BETWEEN:

YVONNE RODRIGUE AND MELISSA RODRIGUE

Applicants

and

CANADIAN GENERAL INSURANCE COMPANY

Insurer

DECISION

ISSUES:

Henry Hietikko died in an automobile accident on April 6, 1993. He held an automobile insurance policy issued by Canadian General Insurance Company (Canadian General); every such policy contains the benefits, including death benefits, set out in Ontario Regulation 672¹.

Yvonne Rodrigue made an application for accident benefits arising out of the fatal accident. She and Mr. Hietikko had never married, but had lived together for some period of time. To qualify for benefits as Mr. Hietikko's spouse, Ms. Rodrigue must prove that they cohabited continuously for a period of at least three years.

The parties agree that Ms. Rodrigue and Mr. Hietikko lived together in a common-law relationship from November 1, 1990 (when Ms. Rodrigue gave up her own apartment and moved into Mr. Hietikko's apartment) until the date of Mr. Hietikko's death, a period of two years and five months. The dispute concerns the status of the relationship in the balance of the period before this, - the seven months beforehand, when they both maintained separate residences.

The issue in this arbitration is:

Were Mr. Hietikko and Ms. Rodrigue spouses pursuant to section 224(1) of the Insurance Act, R.S.O 1990, c. I-8 and section 11(2)(a) of the Schedule?

Death benefits were also claimed on behalf of Ms. Rodrigue's daughter, Melissa Rodrigue (Melissa), under section 11(2)(b) and (c) of the Schedule. Mr. Hietikko was not Melissa's natural or adoptive father. To qualify for benefits it must be established that Melissa was principally dependent for financial support upon Mr. Hietikko or Mr. Hietikko's spouse.² At the hearing, Melissa's counsel conceded that she did not meet the criterion of principal financial dependence on Mr. Hietikko; however, there is no dispute that she was so dependent upon her mother, Ms. Rodrigue. Melissa's entitlement therefore depends on a finding that Ms. Rodrigue is Mr. Hietikko's spouse.

Ms. Rodrigue withdrew her claim for a special award under section 282(10) of the Insurance Act at the hearing. She and Melissa also claim interest on any award and their arbitration expenses.

RESULT:

1. Ms. Rodrigue is entitled to death benefits of $50,000 under section 11(2)(a) of the Schedule.

2. This order is subject to the condition that money payable hereunder shall be directed to be paid to the Ministry of Community and Social Services to meet any overpayment in respect of family benefits determined by the Ministry to be owing by Ms. Rodrigue, to the extent of the overpayment.

3. Melissa Rodrigue is entitled to death benefits of $20,000 under section 11(2)(c) of the Schedule.

4. The Applicants are entitled to interest on the outstanding amounts under section 24 of the Schedule.

5. The Applicants are entitled to their expenses incurred in respect of the arbitration.

HEARING:

The hearing was held in Thunder Bay, Ontario, on July 25 and July 26, 1994, and continued on August 10, 1994, before me, Susan Naylor, senior arbitrator.

Present at the hearing:

Applicant:

Yvonne Rodrigue

Applicant's

Anthony J. Potestio

Representative

Barrister and Solicitor

Applicant

Melissa Rodrigue

Applicant 's

David McKenzie and Gavin W. Freitag

Representative

Barristers and Solicitors

Insurer's

Nan Diaram

Representative

Barrister and Solicitor

14 witnesses, including members of Mr. Hietikko's family, co-workers and friends, and housing and social services representatives, testified at the hearing. Their names are listed in Appendix A. 25 exhibits were filed and are listed in Appendix B. Books of authorities were filed by counsel for Ms. Rodrigue and Canadian General. The cases and statutes cited are listed in Appendix C.

THE STATUTORY CONTEXT:

Part III of the Schedule provides for funeral expenses and death benefits for an insured's family in the event of a fatal automobile accident. In addition to the standard benefits available, Mr. Hietikko had purchased Optional Benefit 1, providing for increased benefits in the event of his death. Section 11(2) of the Schedule, states:

(2) If, as a result of an accident, an insured person dies within the benefit period set out in subsection (3), the insurer will pay with respect to the insured person, if Optional Benefit 1 has been purchased,

(a) $50,000 to his or her spouse, if the deceased is survived by a spouse who was his or her spouse at the time of the accident;

(b) $50,000 to his or her dependants, if the deceased is survived by any dependant who was a dependant at the time of the accident and is not survived by a spouse who is entitled to a benefit under this section;

(c) $20,000 to each of his or her surviving dependants who was a dependant at the time of the accident.

The term "spouse" is defined in section 224(1) of the Insurance Act.,³ :

"Spouse" means either of a man and a woman who,

(a) are married to each other,

(b) have together in good faith entered into a marriage, or

(c) are not married to each other and have cohabited continuously for a period of not less than three years, or have cohabited in a relationship of some permanence if they are the natural or adoptive parents of a child.

Ms. Rodrigue bases her claim to benefits on the first part of subsection (c), namely that she and Mr. Hietikko "have cohabited continuously for a period of not less than three years".

The legislative history of the extended definition of spouse in the Ontario Standard Automobile Policy⁴ was set out in the recent Supreme Court of Canada decision in Miron et. al. v. Trudel et. al, 1995 CanLII 97 (SCC), [1995] S.C.J. No. 44, issued on June 2, 1995.⁵

In that decision, Madame Justice L'Heureux-Dube described the functional goal of the policy as being:

to protect stable family units by insuring against the economic consequences that may follow from the injury to one of the members of the family.⁶

The court noted that a number of legislative schemes, originating with the 1978 Family Law Reform Act,⁷ have adopted criteria referring to the duration of the relationship and the existence of children in designating those family units outside of marriage which are of sufficient stability and interdependence to warrant statutory provision.⁸

The general principles set out in the family law cases are applicable to accident benefit cases. The language of the relevant provisions of the Insurance Act and the Family Law Act is the same. Both schemes share common goals. Madame Justice L'Heureux-Dube commented on the obligation of mutual support imposed upon common-law spouses under the Family Law Act, noting that the basic purpose of the Ontario Standard Automobile Policy

is almost inextricably related to that mutual dependence and to the relationship of interdependency upon which that obligation is premised.⁹

There is no definition of cohabitation in the Insurance Act. In the family law context, the concept has been defined as living in a conjugal relationship;¹⁰ living together in a marriage-like relationship outside marriage,¹¹ or living together as husband and wife.¹²

Each case turns upon its own particular facts. Judicial authorities have suggested certain criteria against which to evaluate the individual facts and circumstances. In Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON HCJ), 17 R.F.L. (2d) 376, Kurisko J. included as relevant criteria accommodation arrangements, sexual and personal relations, responsibility for household services, interaction in a family and social context, financial arrangements and support, and responsibility towards children. However:

The extent to which the different elements of the marriage relationship will be taken into account must vary with the circumstances of each case¹³

Cohabitation must be continuous to qualify. However, the cases have made it clear that temporary interruptions in physical living arrangements do not terminate cohabitation, unless either party has demonstrated "in a convincing manner" a settled state of mind that the relationship is at an end:

the test should be realistic and flexible enough to recognize that a brief cooling-off period does not bring the relationship to an end.¹⁴

The test of continuous cohabitation is both subjective and objective

Whether or not a couple have cohabited continuously is both a subjective and an objective test. What was the intention of the parties as gleaned from the facts and how were they regarded by others?¹⁵

The courts have looked for commitment and support, and at the parties' expectations, in ascertaining their intentions.¹⁶

EVIDENCE AND FINDINGS:

Mr. Hietikko and Ms. Rodrigue met at a New Year's Eve party in 1984. In Ms. Rodrigue's words: "that was it"; they started going out immediately. She had just turned 18 at the time, and had a one year old daughter, Melissa; Mr. Hietikko was 22 years old. They continued to go out together for the next eight and a half years until Mr. Hietikkos' death, except for a brief period around 1988 (the date is somewhat unclear), when they broke up for about two months.

Mr. Hietikko was a boilermaker by trade. He made a good living; between 1988 and 1992 he earned between $40,000 and $50,000 a year, plus unemployment insurance benefits.¹⁷ He was in receipt of unemployment benefits in the months before his death. Both Mr. Hietikko and Ms. Rodrigue lived in Thunder Bay, but Mr. Hietikko's work took him out of town, for weeks and often months at a time.

Throughout the eight and a half years that Ms. Rodrigue was in a relationship with Mr. Hietikko, she was in receipt of social assistance under the Family Benefits Act,¹⁸ as a single parent and sole supporter of her daughter. Her benefits included a basic allowance ($428 in 1987) and a shelter allowance, for her rent and her utilities. For much of the time, she lived in subsidised housing (the Harbour Heights apartment) provided through the Thunder Bay Housing Authority. Her benefits, including the subsidised housing, would have been affected had the Ministry of Community and Social Services (the Ministry) determined that she was living in a common-law relationship with Mr. Hietikko.¹⁹

Under the rules governing receipt of social assistance, Ms. Rodrigue, at the outset and from time to time, was required to certify her marital status, whether anyone (other than named dependants) was living at her home or using her address, and her sources of income. Recipients of family benefits were obliged to notify the Ministry of any change in relevant circumstances, including living arrangements. Ms. Rodrigue was aware that her answers would be relied on to determine her entitlement to family benefits.

Ms. Rodrigue completed updated reports on a regular basis between 1985 and 1993, usually at home with a Ministry representative attending.²⁰

In each of these reports, Ms. Rodrigue indicated that she was single, that, since the last report, there had been no change in her marital status, and that no one, except Melissa, lived at her home. Ms. Rodrigue's answers remained the same even after she gave up her separate residence and moved into Mr. Hietikko's apartment in November 1990.

Ms. Rodrigue provided similar information on the forms she was regularly required to complete to allow the Thunder Bay Housing Authority to assess her qualifications for a rent subsidy and to establish her rent.²¹

Ms. Rodrigue testified that the information she provided in the reports was either untrue or partially untrue. She did not consider herself to be living in a spousal relationship until around December 1989, when she and Mr. Hietikko discussed moving into his apartment. However, she acknowledged that, when she completed an update report on November 11, 1986, and from then on, she should have disclosed that he was living at her home. Ms. Rodrigue did not report that she received any support from Mr. Hietikko, although, according to her evidence, she was receiving around $900 a month from him at the time of his death.²²

I was advised by Ms. Rodrigue's counsel that, in 1994, she reported to the Ministry that she had made false statements about her living arrangements, that she had agreed to plead guilty to a charge of fraud, and to make restitution to the Ministry. The amount of restitution has not been determined, but is tentatively based on the existence of a spousal relationship from November 1990 to April 1993, representing an overpayment of $32,389.00. Charges have not yet been laid.

I was urged by Ms. Rodrigue's counsel to view her admission favourably in evaluating her credibility and in weighing the evidence. However, the timing of and impetus for her action are somewhat equivocal and I am not persuaded that I should attach much weight to the admission.

I take Ms. Rodrigue's solemn declarations as to her living arrangements and her income very seriously; they contradict her claim. However, they are not determinative of the issue. The intent of the parties must be elicited from all the circumstances. Nevertheless, the contradictions give me little confidence in the reliability of Ms. Rodrigue's sworn testimony and I chose not to rely on her testimony for the most part, except where it is corroborated by reliable, independent sources.

Up until the end of October 1990, Mr. Hietikko and Ms. Rodrigue maintained separate residences. When they first met, Mr. Hietikko was living at an old farm house on Melbourne Road, which he rented. He and some friends lived there for several years, although it was described by his family as a very basic dwelling - a place where Mr. Hietikko and his friends stored and fixed up broken-down cars and other equipment. Mr. Hietikko kept the farm house for recreational purposes after he moved out, but he continued to use it as a mailing address for business purposes (such as on his driving license and insurance), for reasons which were not clear to me.²³

At some point in 1988, Mr. Hietikko rented a two-bedroom apartment which was owned by his mother (the South Marks Street apartment). He shared the apartment with another person; they had their own bedrooms and split the rent, each paying $250.

Throughout this period, Ms. Rodrigue had her own apartment, the Harbour Heights apartment, where she and Melissa had lived since late 1985. Towards the end of October 1990, (according to the rent receipts, formally, from November 1), she gave up this apartment and moved in to the South Marks St. apartment with Mr. Hietikko. According to the evidence, the two places were about 20 minutes' drive away from each other.

Ms. Rodrigue testified that, as their relationship developed, Mr. Hietikko spent increasingly more time at the Harbour Heights apartment, whenever he was in town. Towards the end of 1986, he gradually moved many of his personal belongings there, such as his stereo, pictures, work tools, work clothes and casual wear. This timing is corroborated by members of Mr. Hietikko's family and friends.²⁴ Mr. Hietikko continued to leave furnishings and some personal belongings at the South Marks St. apartment: clothes and his business records.

It is Ms. Rodrigue's position that, although Mr. Hietikko maintained a separate residence at Melbourne Road and later South Marks St., the reality of the situation was that they were living together, mostly at her Harbour Heights apartment. The process of his moving in and becoming comfortable there was gradual, but by late 1989, they were spending virtually all their free time together, taking it in turns to stay at each other's place. Ms. Rodrigue estimated that Mr. Hietikko stayed at her apartment at least three or four nights a week. Then, they would go over to Mr. Hietikko's apartment at South Mark's St. and stay there together for a few more days. They both had keys to the apartments and were free to come and go as they pleased. Mr. Hietikko bought a small bed for Melissa which he put up in his room, especially for when she and her mother came to stay. For the most part, Ms. Rodrigue did not leave any personal belongings at South Marks St.

According to Ms. Rodrigue, Mr. Hietikko occasionally stayed on his own at South Marks St. when he was working at a nearby site or had been out drinking; she estimated this to be during 1989 for approximately one night a week, occasionally two. Ms. Rodrigue also explained that Melissa had a childhood disorder, and was sometimes difficult to deal with, throwing temper tantrums and carrying on. She thought that Mr. Hietikko sometimes returned to South Marks St. on his own to get away from the commotion at her apartment when this occurred. Mr. Evans, a friend, suggested that Mr. Hietikko sometimes wanted his own space, and this is consistent with Ms. Rodrigue's testimony.

Ms. Rodrigue's testimony was corroborated by Mr. Hietikko's colleagues and members of his family. During much of the time, Mr. Hietikko's driving license was suspended and he had to rely on friends and family for rides. Consequently, they were well positioned to know his whereabouts. Mike Huntus and Leo Evans were fellow boilermakers and longstanding friends of the couple. At different times, they shared both the Melbourne Road farmhouse and the South Marks St. apartment with Mr. Hietikko. Mr. Huntus lived at South Marks St. for around seven months from November 1988 to May 1989; then Mr. Evans took over until he left to get married in August 1990. In the first half of his tenancy, Mr. Evans worked on a six month project out of town with Mr. Hietikko. Mr. Evans gave him a ride to Thunder Bay on week-ends. Mr. Evans testified that he invariably picked Mr. Hietikko up, and dropped him off, at Ms. Rodrigue's apartment. Mr. Hietikko sometimes came by the South Marks St. apartment to pick up mail and a change of clothes, but he did not spend any time there. Mr. Evans stated that, after the six month project had finished, he saw even less of Mr. Hietikko at the apartment.

Mr. Huntus gave evidence in a similar vein, as did Bruce McDonald, another colleague who worked with Mr. Hietikko on a project in Red Rock in the summer of 1989. All three testified to seeing Mr. Hietikko's personal belongings at Ms. Rodrigue's apartment whenever they visited. Mr. Hietikko's co-workers and family telephoned the Harbour Heights apartment first whenever they needed to reach him. The union hall also called him there, when a job came up on the books.²⁵ Both Mr. Huntus and Mr. Evans confirmed that Ms. Rodrigue and Melissa stayed at South Marks St., from time to time.

The Hietikko family was close and saw each other frequently. Kristiina Coughlin, Mr. Hietikko's sister, visited the couple at Ms. Rodrigue's apartment. She testified that it was obvious that Mr. Hietikko was living there; his boots and shoes were in the front porch, his coats were in the front hall and his clothes were "strewn all over the place". Mr. Hietikko's mother, Raili Hietikko and his sister, Irene Hietikko, both agreed with the gist of this assessment.

Ms. Rodrigue's best friend, Pauline Kuper, lived in a neighbouring apartment building. She talked to Ms. Rodrigue by telephone every day and visited her about three times a week. Mr. Hietikko was frequently there. Ms. Kuper often stayed late at Ms. Rodrigue's apartment, playing cards, talking or watching television; Mr. Hietikko would go on to bed, leaving her and Ms. Rodrigue to talk late into the night.

According to all these witnesses, Mr. Hietikko seemed very much at home at Harbour Heights.²⁶ He shared in some of the domestic tasks, and particularly enjoyed cooking. Friends testified to seeing him prepare dinner when they were visiting the apartment; Ms. Kuper said that he always cooked the dinner when she was there. The couple were often seen shopping together for groceries, when Mr. Hietikko was in town. Ms. Rodrigue did Mr. Hietikko's laundry and got him ready for his out-of-town projects.²⁷

Canadian General questioned the amount of time that Mr. Hietikko spent at Ms. Rodrigue's apartment. They called as witnesses Adeleine Burns, the superintendent of the apartment building who lived next door to Ms. Rodrigue, and Deborah Anderson, the property manager. Neither had observed a male coming and going from Ms. Rodrigue's apartment on a regular basis and assumed Ms. Rodrigue lived alone with Melissa. However, given Mr. Hietikko's, and the witnesses' work schedules, and the layout of the exits in the apartment building, it is not particularly surprising that neither of them ran into Mr. Hietikko. Moreover, I do not discount the possibility that Ms. Rodrigue and Mr. Hietikko conducted themselves discreetly so as to avoid jeopardising Ms. Rodrigue's benefits. This might also explain why, when Ms. Rodrigue's social worker visited her at home at both Harbour Heights and later at South Marks St., she apparently did not observe signs of a male living there that warranted reporting, although, according to the testimony presented here, Mr. Hietikko's belongings were often clearly in evidence to the casual visitor.

The evidence indicates that Mr. Hietikko and Ms. Rodrigue had a close, intimate and (save for a brief two-month period when they broke up around 1988), exclusive relationship. Mr. Hietikko frequently called Ms. Rodrigue long distance when he was out of town.²⁸ Although they did not have lengthy vacations, he would arrange for Ms. Rodrigue and Melissa to fly up to where he was working and spend some time there. Afterwards, they would all travel to Thunder Bay together. The couple spent summer weekends at Mr. Hietikko's parents' cottage or at Ms. Rodrigue's cottage.

Family photographs, taken over the period of their relationship, showed the couple on holiday, together at friends' weddings or at the family cottage. Another set of photographs shows Mr. Hietikko playing with Melissa.²⁹ Copies of birthday and Valentine cards, containing affectionate endearments from Mr. Hietikko to Ms. Rodrigue were also filed.

The Hietikko family accepted and treated Ms. Rodrigue and Melissa as members of the family. They celebrated family functions - Christmases, birthdays, and family get-togethers - together. Mrs. Raili Hietikko, Mr. Hietikko's mother, described Ms. Rodrigue as "part of the family, like a daughter-in-law", and treated Melissa like her other grandchildren.

Friends and family testified that Mr. Hietikko, Ms. Rodrigue and Melissa were known and accepted as a family. Mr. Evans testified that friends treated the couple "like a married couple"; and that he thought they were living together from the time he first met them together in 1985. Mr. McDonald, who met them in 1986/1987, stated that they were a couple "as long as I knew" them. When Mr. Hietikko died, the obituary notice prepared by his family and published in the Thunder Bay Chronicle Journal/Times News, listed his family, and firstly, "his dear companion, Ms. Rodrigue and her daughter Melissa". At the funeral service, his sister Irene read a eulogy that said of her brother:

Henry was a good friend, brother, son, uncle, and a dear companion to Yvonne. ...He was also a family man, busy making a life with Yvonne and Melissa.³⁰

Mr. Hietikko did not have a will. His family agreed that Ms. Rodrigue, together with Kristiina Coughlin, should be appointed the administrators of his estate,³¹ and that she and Melissa should share in the distribution of the estate, because they were his family. Ms. Rodrigue received the bulk of Mr. Hietikko's estate.³² These facts do not directly address the period of cohabitation, but they support the evidence of witnesses that the couple was known and accepted as a couple living together as a family unit.

The fact that the couple had no plans for, or serious discussions about marriage, is not particularly significant - many non-married spousal couples do not have plans to marry. Nor do I regard the fact that Ms. Rodrigue was introduced as Mr. Hietikko's girlfriend, a term that Ms. Rodrigue referred to herself in the statement she gave to Canadian General³³ to be significant: in today's world, the term is fairly generic.

Mr. Hietikko's friends and family spoke of Mr. Hietikko's love and affection for Melissa, whom, they said, was treated by him and his family as his daughter. The photographs filed of the two of them together portrayed something of the closeness of their relationship. I heard evidence that Mr. Hietikko exercised many of the rights and responsibilities of a parent: He kissed Melissa goodnight when she went to bed³⁴, taught her to read,³⁵ disciplined her, as needed,³⁶ and participated in decisions about her schooling.³⁷ He bought her gifts on her birthday - bicycles, toys, clothes, a fishing rod, skiis and hockey equipment. He bought her clothes, usually big-ticket items such as winter coats or boots - at other times of the year.³⁸

Mr. Hietikko and Ms. Rodrigue did not have a joint bank account or share banking arrangements. Ms. Rodrigue primarily supported herself and Melissa through social assistance; Mr. Hietikko's financial support appears to have been largely limited to purchasing more costly items of an extraordinary nature that Ms. Rodrigue could not afford, and helping her out towards the end of the month when she had spent her social assistance. This support was sporadic and there is no documentary evidence to verify it.

Nonetheless, I have reliable evidence that the economic relationship between the parties was not an arms-length, independent one; Ms. Rodrigue had a legitimate expectation that whenever she needed financial support, Mr. Hietikko would provide it. Many witnesses testified to being present when Mr. Hietikko gave or sent money to Ms. Rodrigue.³⁹ Witnesses saw him give her cash for beer and groceries, from time to time. When Mr. Hietikko worked out-of-town, Mr. Evans drove him to a bank on several occasions to wire her money and Ms. Kuper testified that, when he was going away, he would leave Ms. Rodrigue blank, post-dated cheques, for her needs.

I also heard evidence that, over time, Mr. Hietikko bought furniture items and appliances for the Harbour Heights apartment: a television, microwave stand, two sets of tables and chairs, and a second-hand couch and cooking equipment.⁴⁰ There seemed to be some arrangement that Mr. Hietikko would be reimbursed for his contribution towards some of these items. Ms. Rodrigue testified that she offered to reimburse Mr. Hietikko for his contribution towards the cost of a table and chairs ($250 of $500) and a couch ($500). Evidence that a party expects reimbursement for household items militates against a finding that the parties are cohabiting, in the absence of an alternative explanation.

The arrangement that Mr. Hietikko would be reimbursed for certain items appeared to relate exclusively to furniture items for which Ms. Rodrigue sought reimbursement from the Ministry. Ms. Rodrigue submitted two claims for a furniture allowance, and, in each case, supplied an invoice from Mr. Hietikko as proof of purchase. The first invoice, dated November 6, 1988, indicated that Ms. Rodrigue owed Mr. Hietikko $200 for the cost of the couch, although this amount was not consistent with Ms. Rodrigue's testimony. The second invoice, dated March 1, 1990, stated that Ms. Rodrigue had purchased a table and chairs for $300, of which she had paid $150 to Mr. Hietikko, with the balance outstanding. In each case, Ms. Rodrigue was granted the $150 furniture allowance. She admitted, in testimony, that she did not reimburse Mr. Hietikko more than that amount for the table and chairs.⁴¹

When Ms. Rodrigue was living at Harbour Heights, Mr. Hietikko did not contribute to payment of the rent or to the utilities, although he paid for the long distance calls he made. He paid $250 as part of his share of the South Marks St. apartment. When Ms. Rodrigue moved in to South

Marks Street in November 1990, she assumed responsibility for payment of the full rent of $500 and the utilities, and her shelter allowance was increased to cover her additional costs. Mr. Hietikko did not contribute anything to the rent but, according to Ms. Rodrigue, paid for half the hydro, cable and for his telephone calls.

The evidence as a whole suggests strongly that Mr. Hietikko and Ms. Rodrigue did not operate on an arms-length independent financial basis, but, on the contrary, arranged their affairs to maintain and maximise Ms. Rodrigue's family benefit entitlement, to their mutual benefit as a couple.

The parties also shared certain assets. While Ms. Rodrigue was living at Harbour Heights, Mr. Hietikko bought her, in succession, three second-hand cars to drive. He paid for the insurance and maintenance. There was a strong element of self-interest in the purchase, as Mr. Hietikko had to rely on Ms. Rodrigue for transportation for much of the time he was in town. However, he continued to list her as a driver under his insurance policy when he bought his own truck in 1991 and had his license restored.⁴²

Cases have held that the fact that the parties maintain separate residences, while significant, may not be fatal to a finding of cohabitation, when viewed in the broader context of the relationship.⁴³

In McEachern v. Jackson (supra), the parties owned their own homes and in the course of a 15 year relationship, never physically moved in with each other. They did not share a bank account and kept their financial affairs separate. They spent their free time together at each other's places. The applicant performed various household services for her partner, who bought her clothes and contributed to her household expenses. They were held to be spouses.

In Molodowich v. Penttinen (supra), the respondent maintained his own apartment before giving it up and moving in with the applicant. During this time, he spent his spare time with the applicant at either his or, more usually, her place, gradually accumulating personal belongings there. Although the respondent testified that he had no interest in living together with anyone, Kurisko J. found that the course of events did not reflect his stated intention and that the relationship between the parties began even before he physically moved in with the applicant.

Counsel for Canadian General referred me to Bellis v. Innes (supra), a decision of the British Columbia County Court, in which Hutchinson J.reached the opposite conclusion. The parties were economically independent, there were no joint assets or liabilities, the party visited the plaintiffs house only when invited and did not have a key, he did not take part in the raising or disciplining of the plaintiffs child, he stayed elsewhere most nights, he did not keep any clothes at the plaintiff's home and did not contribute to her household expenses. The facts of this case are obviously distinguishable.

The importance of financial interdependence was emphasised in Re Stoikiewicz and Filas. The parties lived in the same apartment, but had separate bedrooms. The applicant was in receipt of mother's allowance and paid the respondent, who owned the building, rent. Steinberg U.F.C.J. concluded that the partes were not cohabiting because, although they were on intimate relations, their economic life was independent and they did not look to each other for support. Any household services were provided in part payment of the rent.

In Ms. Rodrigue's case, however, the arrangement between the parties had no commercial overtone and the evidence is clear that Mr. Hietikko supplemented Ms. Rodrigue's family benefits, whenever Ms. Rodrigue needed more money.

In this case, the nature of the relationship between Mr. Hietikko and Ms. Rodrigue gradually evolved over time, as he moved his things into her apartment. He spent more and more time with her, until, by 1989/1990, he was spending most of his spare time with her. His union, family and friends would reach him at her apartment. The couple shared the domestic chores. Friends and family considered Mr. Hietikko, Ms. Rodrigue and Melissa, to be a family. He provided her with financial support whenever she needed it and he treated her daughter as his own. These facts are not dissimilar from those inMolodowich and McEachern.

Mr. Hietikko maintained his own residence, which he returned to from time to time, sometimes with Ms. Rodrigue but sometimes on his own. Why he continued to rent his own apartment, and to occasionally stay there on his own is a matter of speculation. It may relate to Ms. Rodrigue's continued eligibility for subsidised housing or family benefits or to his desire to have his own space from time to time. Assuming the latter, in light of the overall evidence, I do not see this occasional use as inconsistent with cohabitation; it is more analogous to the use of a retreat cottage.

Counsel for Canadian General pointed to the fact that Mr. Hietikko never acknowledged a familial relationship with Ms. Rodrigue or Melissa in any of his business filings. In income tax returns and his application for unemployment insurance, he described himself as a single man without eligible dependants and always claimed the basic exemptions.⁴⁴ Ms. Coughlin prepared her brother's and Ms. Rodrigue's tax returns. She testified that she suggested claiming Melissa as his dependant; her brother's response was "not yet". Mr. Hietikko did not put either Melissa or Ms. Rodrigue on his union benefit plan, quite possibly because family benefits covered Melissa's medical costs.

Counsel submitted that these factors indicate that Mr. Hietikko did not have the requisite intent to cohabit in a spousal relationship, with the responsibilities of such, until the parties physically moved in together in November 1990. However, this logic is equally true of the period after November 1990, - when everyone agrees that the parties were cohabiting - since Mr. Hietikko continued to describe himself a single man without dependants in his income tax and unemployment insurance filings.

Based on the evidence as a whole, I find that the way Mr. Hietikko described himself to government authorities is not an accurate reflection of his relationship with either Ms. Rodrigue or Melissa, and does not outweigh the substantial evidence that they were truly a family.

Much was made of the fact that Ms. Rodrigue provided a statement to Canadian General shortly after the accident but before she contemplated a claim on her own behalf, in which she described herself as Mr. Hietikko's girlfriend and acknowledged living together with him in a common-law relationship only after November 1990. However, in the statement, she reported that Mr. Hietikko was at her Harbour Heights apartment most of the time and provided her with money when she ran short, and that it was when she moved into South Marks St. that "they started living together full-time". In my view, the contents of the statement are equivocal and are not necessarily inconsistent with her claim or her testimony at the hearing.

There is a question of when cohabitation commenced. In many cases, as here, it is difficult to pinpoint the time when a relationship evolves to cohabitation in a legal sense, as a couple gradually move in with each other and spend more and more time together. In the cases of Molodowich v. Penttinen (supra) and McEachern v. Jackson et. al. (supra), the court did not find it necessary to determine the precise time at which cohabitation commenced.

In Reeson v. Kowalik (1991), 1991 CanLII 12833 (ON CTGD), 36 R.F.L. (3d) 396, the applicant spent some nights at the respondent's home, but left most of his clothes and belongings at his own home, where he returned to change his clothes, shower, dress for work and do his laundry. He often slept at his home. He finally gave up his apartment and moved his belongings to the respondent's home in June 1985.

Feldman J. ruled that:

Although there were many indicia of a permanent conjugal relationship prior to June 1985, ... there must be an identifiable date when cohabitation begins, and in this case, it is the date when Mr. Reeson had no other home to "go home" to.⁴⁵

However, the facts here are distinguishable. In Reeson, the respondent's apartment was his home: he kept his belongings there, his adult son lived there, and he returned there to get ready for the day. In contrast, Mr. Hietikko stayed at Ms. Rodrigue's apartment as a matter of course, kept most of his belongings, including his work clothes and tools, there and only returned to his own apartment without her intermittently. For Mr. Hietikko, Ms. Rodrigue's apartment was his home.

Ms. Rodrigue testified that she began to think of herself and Mr. Hietikko as "more than girlfriend and boyfriend" around December 1989, when they started discussing her moving into South Marks St. in the event that Mr. Evans vacated the apartment. However, her testimony appeared somewhat self-serving in this regard and was not consistent with the testimony of Mr. Evans, who suggested that the timing of the discussions about his moving out was later than this.

Many of the witnesses thought that the couple were living together at Harbour Heights as early as 1986.

I do not consider it necessary to pinpoint the moment in time in which the relationship evolved to a relationship of cohabitation. I find that, by the beginning of 1990, Mr. Hietikko and Ms. Rodrigue were living together as a couple, in a family group with Melissa. The evidence suggests that this had been the case for some considerable time prior to this. It is not necessary for me to deal with the character of their brief separation around 1988; I am satisfied that the couple cohabited continuously for the three years before Mr. Hietikko's death.

Therefore I find that Ms. Rodrigue and Mr. Hietikko were spouses at the time of the accident, and that Ms. Rodrigue is entitled to a death benefit of $50,000 under section 11(2)(a) of the Schedule. It follows that Melissa is entitled to a death benefit of $20,000 under sections 3(2) and 11(2)(c) of the Schedule.

Ms. Rodrigue's counsel advised me that Ms. Rodrigue had directed him irrevocably to assign the proceeds from this arbitration to the Ministry of Community and Social Services to meet the family benefit overpayment determined to be owing. He invited me to make my order conditional upon this undertaking, and I do so.

EXPENSES:

Under section 282(11) of the Insurance Act, as amended, an arbitrator may award an applicant his or her expenses of the arbitration. This has generally been done, even where the applicant has been unsuccessful, provided that the application has merit and the applicant's conduct has not unreasonably prolonged the proceeding. In this case, Ms. Rodrigue was successful in her application.

Counsel for Canadian General submitted that Ms. Rodrigue should not be granted all or part of her expenses, because she had perpetrated a fraud upon the Ministry. Applicants have been denied their expenses where there is evidence of fraudulent conduct in relation to the application for accident benefits or in relation to the arbitration proceeding. However, in this case, there is no such nexus between Ms. Rodrigue's misrepresentations to Ministry officials about her family benefits and her claim for accident benefits. She admitted her conduct prior to the commencement of the hearing and did not unreasonably prolong the proceedings. She and Melissa are entitled to their expenses in respect of the arbitration.

ORDER:

1. Ms. Rodrigue is entitled to death benefits of $50,000 under section 11(2)(a) of the Schedule.

2. This order is subject to the condition that money payable hereunder shall be directed to be paid to the Ministry of Community and Social Services to meet any overpayment in respect of family benefits determined by the Ministry to be owing by Ms. Rodrigue, to the extent of the overpayment.

3. Melissa Rodrigue is entitled to death benefits of $20,000 under section 11(2)(c) of the Schedule.

4. The Applicants are entitled to interest on the outstanding amounts under section 24 of the Schedule.

5. The Applicants are entitled to their expenses incurred in respect of the arbitration.

August 30, 1995

Susan Naylor

Senior Arbitrator

Date

Appendix A

List of Witnesses

Kristiina Coughlin, Mr. Hietikko's sister

Leo Evans, Mr. Hietikko's co-worker and roommate

Bruce McDonald, Mr. Hietikko's co-worker

Mike Huntus, Mr. Hietikko's co-worker and roommate

Raili Hietikko, Mr. Hietikko's mother

Irene Hietikko, Mr. Hietikko's sister

Pauline Kuper, friend and neighbour of Ms. Rodrigue

Melissa Rodrigue, Ms. Rodrigue's daughter

Yvonne Rodrigue, the Applicant

Anne Mason, Ms. Rodrigue's neighbour

Adeleine Burns, superintendent, Harbour Heights Apartment

Deborah Anderson, property manager, Viking Investments

Larry Roland Pennier, program supervisor, Income Maintenance, Social Services Department, City of Thunder Bay

Kenneth Morrison, insurance adjuster

Appendix B

Exhibits

Exhibit 1

Records, City of Thunder Bay, Social Services Department

Exhibit 2

Housing records, Thunder Bay District Housing Authority

Exhibit 3

Records, Harbour Heights Apartments

Exhibit 4

Driver's license history, Ministry of Transportation (Ms. Rodrigue)

Exhibit 5

Driver's license history, Ministry of Transportation, (Mr. Hietikko)

Exhibit 6

Statement dated April 14, 1993, by Ms. Rodrigue

Exhibit 7

Certificate of Automobile Insurance dated March 31, 1993

Exhibit 8

Letters of Administration dated June 28, 1993

Exhibit 9

Letter dated December 21, 1993, from Anthony Potestio, Christie & Potestio, Barristers and Solicitors

Exhibit 10

Financial Statement, Yvonne Rodrigue

Exhibit 11

Income tax summaries, Revenue Canada, 1988-1993 (Ms. Rodrigue)

Exhibit 12

Income tax summary and returns, Revenue Canada, 1988-1992 (Mr. Hietikko)

Exhibit 13

Affidavits:

Yvonne Rodrigue, sworn on October 7, 1993

Raili Hietikko, sworn on October 8, 1993

Leo Evans, sworn on October 4, 1993

Pauline Kuper, sworn on October 7, 1993

Irene Hietikko, sworn on October 8, 1993

Exhibit 14

Letter dated July 6, 1994 from Janet M. Smith, controller, Great Lakes Fabricating

Exhibit 15

Unemployment insurance records (Mr. Hietikko)

Exhibit 16

Letter dated July 13, 1994 from Thunder Bay District Housing Authority

Exhibit 17

Letter dated July 13, 1994 from Canada Trust and banking records, December 1992- April 1993, (Mr. Hietikko)

Exhibit 18

Banking records, March 31, 1993-April 24, 1994, (Ms. Rodrigue)

Exhibit 19

Summary of rental receipts, October 1988-June 1993, (Ms. Raili Hietikko)

Exhibit 20

Handrawn map (Irene Hietikko)

Exhibit 21

Handrawn list of gifts (Melissa Rodrigue)

Exhibit 22

Set of photographs 1985-1992

Exhibit 23

Set of photographs 1986-1991

Exhibit 24

Birthday and anniversary cards

Exhibti 25

Letter dated June 22, 1994 to Toronto Dominion Bank

Exhibit 26

Accident benefits form (Ms. Rodrigue)

Exhibit 27

Letter dated May 11, 1993 from Jo-Ann Eccleston, Canadian General

Exhibit C

Legislation and Cases Cited

Legislation:

Insurance Act, R.S.O. 1990, C. I-8, as amended

Family Law Act, R.S.O. 1990, C. F-3, as amended, section 29

Family Law Reform Act, R.S.O. 1980 C. 152, as amended, Part II, section 14

Succession Law Reform Act, R.S.O. 1990, C.S-26, as amended, Part V

Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, R.R.O.1990, Reg. 672

Standard Automobile Policy (1985)

Ontario Automobile Policy, O.P.F. 1, Part B

Judicial Authorities:

Molodowich v. Penttinen (1990), 1980 CanLII 1537 (ON HCJ), 17 R.F.L. (2d) 376

McEachern v. Jackson, unreported, Ontario Court (General Division) Sheppard J, Court File No. 25613/93, Reasons delivered July 22, 1993

Re. Labbe v. McCullough (1979), 1979 CanLII 2139 (ON PROVCT), 23 O.R. (2d) 536

Dicks v. Zavitz (1979), 13 R.F.L. (2d) 178

Re Feehan and Atwells (1979), 1979 CanLII 1613 (ON HCJ), 24 O.R. (2d) 248

Sanderson v. Russell (1979), 1979 CanLII 2048 (ON CA), 9 R.F.L.. (2d) 81 (Ont. C.A.)

Re Stoikiewicz and Filas (1979), 1978 CanLII 1328 (ON HCJ), 21 O.R. (2d) 717

Reeson v. Kowalik (1991), 36 R.F.L. (3d) 296

Bellis v. Innes (1980), 1980 CanLII 3813 (BC SC), 21 R.F.L. (2d) 40

Barnard; Barnard et. al. v. Safeco Insurance Co. Of America (1986), C.C.L.I. 279

Chevrier et al. v. Zurich Insurance Company, [1985] I.L.R. 7389

Revega v. Western Union Insurance Company, [1975] I.L.R. 1142

Ireland v. Royal Insurance Canada et. al., [1992] I.L.R. 1845

Miller v. Safeco Insurance Co. Of America (1984), 1984 CanLII 2019 (ON HCJ), 48 O.R. 451

Pagliarella et. al. v. Di Biase Brothers Inc. et. al. (1989), 1989 CanLII 4388 (ON HCJ), 71 O.R. (2d) 193

Martins v. Gibraltar General Insurance Co. (1984), 1984 CanLII 5962 (ON HCJ), 6 C.C.L.I. 226

Taylor v. Ontario (Motor Vehicle Accident Fund (1984), 1989 CanLII 10431 (ON HCJ), 44 C.C.L.I. 116

McNeilly et al v. Allstate Insurance Company, [1973] I.L.R 471

Consolidated - Bathurst Export Limited v. Mutual Boiler and Machinery Insurance Company (1980), 1979 CanLII 10 (SCC), 1 S.C.R. 888

Arbitration decisions:

Pietro Manti and Wawanesa Mutual Insurance Company, December 17, 1992, OIC File No. A-001496

Adolf and Maria Crnkovic and Simcoe & Erie General Insurance Company, April 8, 1993, OIC File No. A-002228

Maninder Singh and State Farm Mutual Automobile Insurance Company and Pilot Insurance Company, June 4, 1993, OIC File Nos. A-001525 and A-001526

D. Cattrysse and The Westminster Mutual Fire Insurance Company and Anglo Canada General Insurance Company, June 21, 1993, OIC File Nos. A-001618 and A-001789

Peter Najem and. Axa Insurance Company and Economical Mutual Insurance Company, July 27, 1993, OIC File Nos. A-003115 and A-003116

Bruce and Eleanor McDonald and State Farm Insurance Companies, March 11, 1993, OIC File No. A-001347

Michael Ridgley and Zurich Insurance Company, April 13, 1994, OIC File No. A-004083

Brenda Lautaoja and General Accident Indemnity Company, May 10, 1994, OIC No. A-007087

Fathia Ahmed and Allstate Insurance Company of Canada, May 18, 1994, OIC File No. A-003995

Margaret McGuire and Zurich Insurance Company and State Farm Mutual Automobile

Insurance Company, June 20, 1994, OIC File Nos. A-002988 and A-002989

Vincenzo Scavuzzo and Canadian Home Assurance Company, March 18, 1992, OIC File No. A-000626

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Schedule, section 3(2); subsections 11(2)(b) and (c)
3. 3See also Ontario Automobile Policy Form 1, section 5.2.4
4. 4Section B, Subsection 2 and 3, Part II
5. 5Insurance Act, R.S.O. 1980, c. 218, ss.231, 231, Schedule C.
6. 6Paragraph 109
7. 7R.S.O. 1978, c. 2 Part I.
8. 8The Statutory Accident Benefits Schedule, Ontario Regulation 776/93, as amended, enacted under the Insurance Statute Law Amendment Act,1993, S.O. 1993, c. 10, changes the extended definition of spouse for the purposes of accident benefits from three years cohabitation to one year, but only in respect of accidents occurring on or after January 1, 1994.
9. 9Paragraph 114
10. 10The Family Law Act, section 1(1) defines "cohabit" to mean "to live together in a conjugal relationship, whether inside or outside marriage".
11. 11Re Feehan and Atwells (1979), 1979 CanLII 1613 (ON HCJ), 24 O.R. (2d) 248
12. 12Sanderson v. Russell (1979), 1979 CanLII 2048 (ON CA), 24 O.R. (2d) 429
13. 13Warwick v. Minister of Community and Social Services (1978), 1978 CanLII 1300 (ON CA), 21 O.R.(2d) 528, cited in Molodowich v. Penttinen (supra)
14. 14Sanderson v. Russell, (supra)
15. 15McEachern v. Jackson, p. 10 unreported, Ontario Court (General Division) Sheppartd J. Court File No. 25613/93, reasons delivered on July 22, 1993;See also Re Feehan and Attwells (supra); Re Harris and Godkewitsch (1983), 1983 CanLII 2002 (ON PROVCT), 41 O.R. (2d) 779
16. 16McEachern v. Jackson (supra); Re Stoikiewicz and Filas (1979), 21 O.R. (2d) 77; Bellis v. Innes (1980), 1980 CanLII 3813 (BC SC), 21 R.F.L. (2d) 40
17. 17Exhibits 12, 13, 14 and 15
18. 18R.S.O 1980, c. 151; R.S.O. 1990, c. F.2
19. 19Testimony of Larry Roland Pennier, Program Supervisor, Income Maintenance, Department of Social Services, Corporation of the City of Thunder Bay
20. 20Exhibit 1, Reports dated November 11, 1984, November 22, 1985, May 14, 1986, November 19, 1986, May 7, 1987, March13, 1988, November 11, 1988, May 12, 1989, November 7, 1990, December 6, 1991, November 16, 1992, November 23, 1993
21. 21Exhibit 2, Thunder Bay Housing Authority file: May 18, 1990, May 18, 1989, May 19, 1988, May 22, 1987, May 13, 1986; Exhibit 3, Harbour Heights Apartment file
22. 22Financial Statement, Exhibit 10
23. 23See the testimony of Kristiina Coughlin and Irene Hietikko; Exhibits 5 and 7;
24. 24Testimony of Irene Hietikko, Pauline Kuper, Leo Evans
25. 25Testimony of Raili Hietikko, Leo Evans, Pauline Kuper
26. 26Testimony of Irene Hietikko, Leo Evans, Kristiina Coughlin
27. 27Testimony of Pauline Kuper, Yvonne Rodrigue
28. 28Testimony of Leo Evans, Pauline Kuper, Yvonne Rodrigue
29. 29Exhibits 22 and 23
30. 30Testimony of Irene Hietikko; Affidavit of Yvonne Rodrigue, Exhibit 13
31. 31Testimony of Kristiina Coughlin, Letters of administration, Exhibit 8
32. 32Testimony of Kristiina Coughlin; Exhibit 9, Letter from Christie & Potestio, dated December 21, 1993
33. 33Statement dated April 14, 1993, Exhibit 6
34. 34Testimony of Kristiina Coughlin
35. 35Testimony of Leo Evans
36. 36Testimony of Mike Huntus
37. 37Testimony of Yvonne Rodrigue
38. 38Testimony of Kristiina Coughlin; Pauline Kuper
39. 39Testimony of Leo Evans, Mike Huntus and Pauline Kuper
40. 40Testimony of Pauline Kuper
41. 41Exhibit 1
42. 42Exhibit 7
43. 43McEachern v. Jackson et. al. (supra)
44. 44Exhibit 15, Application for Unemployment Benefits; Exhibit 12, Income tax returns 1989, 1990 and 1991
45. 45Page 410