Neutral Citation: 1995 ONICDRG 129

File No.: A-008179

ONTARIO INSURANCE COMMISSION

BETWEEN:

ROSALIE MCLETCHIE

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issues:

Mr. Gerald McLetchie died in a motor vehicle accident on October 15, 1992. The Applicant, Rosalie McLetchie applied to the Insurer for statutory accident benefits for herself and her children, Christopher and Ancil McLetchie, pursuant to sections 11(2)(a) and 11(2)(c), under Ontario Regulation 672¹. The Insurer refused to pay the benefits on the basis that the Applicant was not the spouse of Mr. McLetchie at the time of his death and her children were not his dependants. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. At the time of Mr. Gerald McLetchie's accident was Mrs. Rosalie McLetchie the common-law spouse of Mr. McLetchie within the meaning of the definition of "spouse" under section 224(1) of the Insurance Act, and therefore entitled to the benefits of spouse pursuant to section 11(2)(a) of the Schedule?

2. At the time of Mr. Gerald McLetchie's accident was Christopher McLetchie entitled to the benefits of a dependant pursuant to section 11(2)(c) of the Schedule?

3. At the time of Mr. Gerald McLetchie's accident was Ancil McLetchie entitled to the benefits of a dependant pursuant to section 11(2)(c) of the Schedule?

The Applicant also claims interest on any amounts owing, and her expenses incurred in the hearing.

Result:

1. At the time of Gerald McLetchie's accident, Mrs. Rosalie McLetchie was not the spouse of Mr. McLetchie within the meaning of the definition of "spouse" under section 224(1) of the Insurance Act, and is therefore not entitled to the benefits of a spouse pursuant to section 11(2)(a) of the Schedule?

2. At the time of Gerald McLetchie's accident, Christopher McLetchie was not principally dependent for financial support upon Gerald McLetchie within the meaning of the definition of "dependant" under section 3(2) of the Schedule, and is therefore not entitled to the benefits of a dependent pursuant to section 11(2)(c) of the Schedule?

3. At the time of Gerald McLetchie's accident, Ancil McLetchie was not principally dependent for financial support upon Gerald McLetchie within the meaning of the definition of "dependant" under section 3(2) of the Schedu/e, and is therefore not entitled to the benefits of a dependant pursuant to section 11(2)(c) of the Schedu/e?

Hearing:

The hearing was held in North York, Ontario, on August 28 and 29, 1995, before me, Joyce Miller, arbitrator.

Present at the Hearing:

Applicant:

Rosalie McLetchie

Insurer's Representative:

Brian Atherton Barrister and Solicitor

Witnesses:

Rosalie McLetchie Christopher McLetchie Ancil McLetchie Eudora McLetchie Karel Kukacka Lorraine Banks Bessie Tsonis

Exhibits:

Seven exhibits were filed and Mr. Atherton filed a case brief.

Catherine Boyle and Nancy Lowrey from Rosenberg, Weir and MacDonald recorded the proceedings.

Preliminary Matters:

1. Adjournment Request

The Applicant, Rosalie McLetchie requested an adjournment on the basis that she needed to retain counsel. She stated that she had been unable to get legal aid and could not afford a lawyer. She stated that she was unaware that her expenses could be paid by the Insurer.

Mr. Atherton, on behalf of Wawanesa, objected to the adjournment request. He stated that the Applicant had been advised by the pre-hearing arbitrator, Arbitrator Mackintosh, that she should retain counsel and that the hearing would proceed if she did not. He pointed out that the pre-hearing letter indicated that her expenses would be paid if the claim was not vexatious or frivolous. And thirdly, he submitted, that Wawanesa had been put through a great deal of expense in preparation of this hearing.

I denied the adjournment for the following reasons:

In my view the Applicant was attempting to unnecessarily delay the hearing. The Applicant had had ample time to retain a lawyer. She knew as far back as the first pre-hearing held on March 8, 1995 that she needed to retain counsel. At the second pre-hearing on July 12, 1995, the Applicant was advised by Arbitrator Mackintosh that the hearing would proceed on August 28, 1995, and that she was to get counsel as soon as possible.²

I do not accept the Applicant's statement that she did not understand that her expenses could be paid by the Insurer. I am confident that Arbitrator Mackintosh, whose very detailed pre-hearing letters are a reflection of her thoroughness, would have advised the Applicant that her expenses would be borne by the Insurer if her claim was not fraudulent, frivolous or vexatious.

Even if Arbitrator Mackintosh had not given such advice, the Applicant, who is a university graduate, in my view was very capable of understanding the pre-hearing letters which discussed both the need to retain counsel and the issue of expenses.

For the above reasons I declined to grant the adjournment.

2. Are Leslie Ann McLetchie, Marcia McLetchie and Michelle Bleasdell Applicants in this hearing?

Leslie Ann McLetchie, age 28, Marcia McLetchie, age 32, and Michelle Bleasdell, age 31, presented themselves at the hearing as the children of Gerald McLetchie and requested that they be allowed to participate in the proceedings.

I denied their request. In doing so I relied on the analysis and principle enunciated by Senior Arbitrator Rotter in the Couraudd³ case. In that case Senior Arbitrator Rotter reviewed the relevant legislation and held that "Parties must seek mediation before having their disputes adjudicated..." The Report of the Mediator on March 2, 1994, states that Leslie Ann McLetchie, Marcia McLetchie and Michelle Bleasdell failed to appear at the mediation. As well they did not appear at the two pre-hearings. The pre-hearing letter dated August 8, 1995, stated that they were not pursuing their claim.

For all of these reasons I found that Leslie Ann McLetchie, Marcia McLetchie and Michelle Bleasdell could not participate in the arbitration.

Evidence and Findings:

1. The Testimony of the Applicant, Rosalie McLetchie

The Applicant, who is 46 years old, was born in Trinidad. She met Gerald McLetchie when she was 16 years old⁴. She married him when she was 17 years old. One year later in 1967, their daughter Leslie was born. In 1970 they immigrated to Canada.

The Applicant described her marriage as a "roller-coaster". In 1977 she left Mr. McLetchie and in 1978, six months after their divorce, she married another man. A son, Ancil, was born of that second marriage.

The Applicant testified that Mr. McLetchie did not contest or recognize the divorce. She stated that he said he would never remarry and that she was his wife for life.

The Applicant's second marriage did not last long and also ended in divorce. She stated that in the early 1980's Mr. McLetchie wanted to marry her again.

The Applicant testified that in 1984 she and her three children moved in with Mr. McLetchie at his apartment at 10 St. Denis Drive. She stated that she never stopped living with Mr. McLetchie from that time until he died.

The Applicant stated that Mr. McLetchie supported her and her children when she went to Seneca College until 1986. In 1987, she decided to go to York University. She stated that she moved out to the university campus, but came back to 10 St. Denis Drive every weekend. She stated that at all times she kept her clothes, identification documents and her medication at 10 St. Denis Drive. She stated that when she went to York University she still continued to receive Mr. McLetchie's support.

The Applicant testified that the superintendent was aware that she and her children lived at 10 St. Denis Drive.

The Applicant's evidence, about having lived with Gerald McLetchie at 10 St. Dennis Drive from 1984 until he died in the car accident, was contradicted by four witnesses, including the superintendent of 10 St. Denis Drive.

(a) Eudora McLetchie

Eudora McLetchie, Mr. McLetchie's sister, testified that she was very close to her brother. She lived nearby and saw him about twice a week. She talked to him constantly on the phone.

Ms. McLetchie testified that the Applicant did not live with her brother at 10 St. Denis Drive, except for about six months in 1979. He did not financially support the Applicant or her son Ancil. Mr. McLetchie did pay support payments for his son Christopher until he was 18 years old.

Ms. McLetchie testified that her brother gave Christopher and Ancil emotional support, not financial support. She stated that at times the Applicant would take off somewhere and leave the boys alone. When this happened her brother would check up on the children to make sure that they were alright. Sometimes he brought them to his place to stay. However, he worked nights and it was difficult to supervise them.

Ms. McLetchie testified that after his divorce from the Applicant, her brother stated that he would never remarry. He did, however, have a steady woman friend, Joan Gaskin, in his life, from 1975, until she died of cancer, two months before the car accident.

(b) Mrs. Bessie Tsonis

Mrs. Bessie Tsonis was the superintendent at 10 St. Denis Drive for 19 years, from 1975 until 1994. She testified that the Applicant had only lived at 10 St. Denis Drive for about six or seven months, sometime in 1978/79. She stated that after the Applicant and her children moved out she never saw the Applicant again. The first time she saw Christopher after they had left was when he asked to be let into Gerald McLetchie's apartment after the accident.

Mrs. Tsonis testified that Mr. McLetchie lived alone. She stated that she saw Mr. McLetchie almost every day, since he worked at night. Sometimes he helped her out, for example to change a light bulb. Mrs. Tsonis stated that on weekends she saw Mr. McLetchie in the parking lot fixing cars and helping people.

Mrs. Tsonis stated that Mr. McLetchie was alone most of the time. The only family he spoke about was a daughter in British Columbia. He had a lady friend from church who would come and go, but did not live with him.

(c) Lorraine Banks

Ms. Banks has been the property manager for 10 St. Denis Drive since 1988. Ms. Banks testified that after her company bought the building in 1988 the names of a thousand tenants had to be entered into the computer in a very short time. The person who entered the data mistakenly entered Mr. and Mrs. McLetchie as the occupants of Mr. McLetchie's apartment in 1989.⁵ However, this was not correct. Ms Banks stated that Mr. McLetchie lived alone in the apartment.

Ms. Banks testified that she was friendly with Mr. McLetchie and she saw him almost every day. In 1991, because of major renovations taking place in the building, she had to be on the property seven days a week. As well, she was constantly in and out of the tenants' apartments, to supervise the work and get numerous releases, regarding to the renovations, signed by the tenants.

Ms. Banks testified that in the first part of 1991 she was in Mr. McLetchie's apartment almost every week either to supervise renovations or to get releases signed. She stated that when she was in Mr. McLetchie's apartment supervising the renovations, his closet doors were open and she saw only his clothes hanging. She did not see any evidence of anyone else living in the apartment.

Although Ms. Banks saw Mr. McLetchie every day, including weekends, she never saw the Applicant and did not know that Mr. McLetchie had two sons. Once when she asked Mr. McLetchie about whether he had any family, he withdrew very quickly and said he did not have any family.

Ms. Banks testified that Mr. McLetchie appeared to be lonely and tended to hang around with the other tenants and with herself and the superintendent.

(d) Karel Kukacka

Mr. Kukacka has been the superintendent of the building at 665 Kennedy Road for eight years. He stated that he only knew the Applicant as Rosalie Pierre and the Applicant and her two sons had lived in the building on two occasions. He stated that she moved out some time in 1991.

I accept the testimony of above the four witnesses. In my view they presented disinterested, objective, reliable evidence which contradicted the Applicant's assertion that she and her children lived with Mr. McLetchie from 1984 until he died.

I note that Mr. Kukacka stated that he only knew the Applicant as Rosalie Pierre. The evidence reveals that all official documents, including the Applicant's passport issued on September 7, 1990,⁶ her income tax returns from 1989 and 1991,⁷ her bank statement for August 27, 1991⁸ and the collection notice for the Applicant's student loan, dated December 17, 1992⁹ refer to the Applicant as Rosalie Pierre. As well, the evidence reveals that a travel invoice¹⁰ for March 20, 1992, is addressed to Ms. R. Pierre.

When the Applicant was questioned by Mr. Atherton as to why she used two names, Ms. Pierre and Mrs. McLetchie, she stated that she used Mrs. McLetchie because that was the name her children were known by.

From the evidence, I find that the Applicant is commonly known as Rosalie Pierre. In my view, the Applicant uses the name of Rosalie McLetchie when it is useful to her. In this case, I believe, she used the name McLetchie to shore up her assertion that she was the common-law spouse of Gerald McLetchie.

I give little weight to the "To Whom it May Concern" letter from Charles E. Kere, Ph.D.¹¹ who states that he has "...Known Rosalie McLetchie since 1987" and to his conclusion that to the best of his knowledge the Applicant and Gerald McLetchie were husband and wife.

The March 15, 1995 pre-hearing letter notes that Dr. Kere is a friend of the Applicant and that at one point it was his intention to represent her at the hearing. I do not view his letter as coming from a disinterested party.

Mr. Atherton, in referring to a xerox picture allegedly of the Applicant and Gerald McLetchie, with the reference beside it "Bank of Canada Xmas Party Dec 1991" noted that the beer bottles in the picture had not been used in Ontario for at least 10 years. He confronted the Applicant with this fact. The Applicant became defensive and could not respond to this discrepancy. The Applicant's inability to respond to the discrepancy leads me to the conclusion that the picture does not represent the Applicant and Mr. McLetchie attending the 1991 Bank of Canada Christmas party.

2. Analysis and Decision with Respect to the Applicant, Rosalie McLetchie

The Applicant claims $50,000 pursuant to section 11(2)(a) of the Schedule¹² on the basis that she was the common-law spouse of Mr. Gerald McLetchie at the time of the accident.

I find that there was no credible or reliable evidence presented to show that at the time of Gerald McLetchie's accident the Applicant was his spouse within the meaning of the definition of spouse in the Insurance Act. Section 224 of the Act states:

(1) In this Part,

"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.

The evidence shows that the Applicant and Mr. McLetchie were divorced in 1978. However, the Applicant asserts that she reconciled with Mr. McLetchie in the early 1980's and that she continuously cohabited with Mr. McLetchie at 10 St. Denis Drive from 1984 until the accident in October 1992.

The Applicant, however, did not produce any objective evidence in support of her submission that she was cohabiting with Mr. McLetchie at the time of the accident.

Eudora McLetchie, the sister of Mr. McLetchie, and Bessie Tsonis, the superintendent of 10 St. Denis Drive, both testified, that except for a six month period in 1978-79, the Applicant never lived at 10 St. Denis Drive. I found the testimony of both witnesses credible.

I especially found that Mrs. Tsonis, who has no relationship to the Applicant, was a completely objective and independent witness. Contrary to the Applicant's assertion that the superintendent would support the fact that she lived at 10 St. Denis Drive, Mrs. Tsonis not only did not support this fact, she did not recognize the Applicant when she came into the hearing room.

The Applicant's 1989 income tax return indicates that her name is Rosalie Pierre, that she is divorced, that her principle residence for 1989 was 10 Assiniboine Road, and that she claims a tax credit for her two children. Under "Family Information" she does not indicate an "other supporting person" of her "qualified children".¹³

The Applicant's 1991 income tax return basically gives the same information as above, except her address for her principle residence is 665 Kennedy Road.¹⁴

Gerald McLetchie's income tax returns for 1990 and 1991 indicate that his residence is 10 St. Denis Drive, that he is divorced, that he paid $1,200 in alimony and that under the heading "Are you eligible for an 'equivalent of married' credit" the box "no" is checked off.¹⁵

These income tax returns support my findings that the Applicant was divorced from Gerald McLetchie and did not cohabit with him before his accident.

After Mr. McLetchie died, the evidence shows that the Applicant neither applied for burial expenses¹⁶ nor made the funeral arrangements.¹⁷ These are tasks one would usually expect a spouse to do. I did not believe the Applicant's explanation that making such arrangements was something she was not emotionally capable of doing.

Although the evidence reveals that the Applicant was the beneficiary of Mr. McLetchie's life insurance policy with his employer, the Bank of Canada, that in itself does not make her Mr. McLetchie's spouse. Nor does the Applicant's assertions that she received benefits from the Bank of Canada as the spouse of Gerald McLetchie make her his spouse pursuant to section 224(1)(c).

I agree with Arbitrator Mackintosh's finding in Osborne¹⁸ where she states: "I find that the term "cohabited" used in the context of the definition of not married "spouse" at section 224(1)(c) of the Insurance Act contemplates an integrated relationship between a man and a woman ..." [Emphasis added]

Arbitrator Mackintosh goes on to state that "an integrated relationship between a man and a woman" would contain the elements described by Hutchinson, B.C. Co. Ct.J. at page 45 of his decision in Beffi's v. Innes¹⁹where he states:

... an integrated relationship between the man and the woman that will usually have many of the following elements, though not necessarily all of them: financial interdependence, a sexual relationship, a common principle residence, obligations on the part of each to share the responsibilities of running the home, shared use of assets, such as cars, boats, etc., shared responsibilities for raising children, shared vacations and the expectation each day that there be continued mutual dependency ... [Emphasis added]

I have no doubt that the Applicant and Mr. McLetchie, as divorced parents, would be in contact with each other over the years because of their children. However, in my view, no credible or reliable evidence was presented to show that the Applicant had an integrated spousal relationship with Mr. McLetchie after 1979 which would qualify her to be considered Mr. McLetchie's spouse pursuant the definition of section 224(1)(c) of the Insurance Act

I, therefore, find that the Applicant is not a spouse within the meaning of section 11(2)(a) of the Schedule and is not entitled to statutory accident benefits in the sum of $50.000.

3. The Testimony of the Applicant, Christopher McLetchie

Christopher McLetchie, who is now 22 years old, was 19 years old when his father was killed in the car accident. The Applicant stated that he lived with his father until 1991. He testified that both his "mom and dad" took care of him.

The Applicant stated that his mother and father looked after him fifty-fifty. When asked who took care of all of his financial needs, he indicated that his mother did. He stated that his father used to give him money when he asked for it. However, he stated that what he missed most from his father since his death was the moral support that he received from him.

4. Testimony of the Applicant, Ancil McLetchie

Ancil McLetchie, who is now 17 years old was 14 years old at the time of Gerald McLetchie's car accident. He is not the natural son of Gerald McLetchie. He stated he was financially dependent on both his mother and father. However, he testified that he looked to Gerald McLetchie, who he referred to as his Uncle Gerald, for moral support and that he really missed him because he would always be there for him.

5. The Analysis and Decision with Respect to the Applicants, Christopher and Ancil McLetchie

In order for Christopher and Ancil McLetchie to be eligible for death benefits pursuant to section 11(2)(c) of the Schedule²⁰ they must show that they were dependants of Gerald McLetchie. The definition of dependant is contained in section 3(2) of the Schedule. It states:

(2) For the purpose of this Regulation, a person is a dependant of another person if the person is principally dependent for financial support on the other person or the other person's spouse. [emphasis added]

I have found above that their mother was not the spouse of Gerald McLetchie at the time of the accident. The issue then, is whether Christopher and Ancil McLetchie were principally dependent for financial support on Gerald McLetchie, under section 3(2) of the Schedule.

I heard no evidence to show that Christopher and Ancil McLetchie were principally dependent for financial support on Gerald McLetchie.

Their testimony, which was consistent with Eudora McLetchie's testimony, shows that they received and very much appreciated moral support from Gerald McLetchie, but that they were not financially dependent upon Mr. McLetchie at the time of the accident.

Income tax returns for 1989²¹ and 1991²² filed by their mother indicates that their mother claimed them as her dependants.

The evidence reveals that Gerald McLetchie did make support payments of $1,200.00 a year for Christopher until he was 18 years old.²³ There was no evidence to show that Ancil, who was not Mr. McLetchie's natural son, received any regular support payments.

I received evidence that Christopher overdrew his mother's bank account²⁴and that Mr. McLetchie co-signed the promissory note to repay the bank $1,650.00.²⁵ Along with providing emotional and moral support to Christopher and Ancil, I have no doubt that at times Mr. McLetchie gave the boys some money when they asked him for it. Nevertheless, no objective, reliable evidence shows that either Christopher or Ancil McLetchie were principally dependent on Gerald McLetchie for their financial support.

I agree with the findings of Arbitrator Palmer in Crnkovic²⁶ that receiving occasional gifts of money, groceries or clothes does not qualify a person as being principally financially dependent upon another.

For all of the above reasons, I did not find that the Applicants were principally dependent for financial support on Gerald McLetchie pursuant to section 3(2) of the Schedule. I, therefore, find that Christopher McLetchie and Ancil McLetchie are not entitled to the benefits of a dependants pursuant to section 11(2)(c) of the Schedule.

6. Expenses

The parties did not speak to expenses. I remain seized of this matter if the parties are not able to come to an agreement on the expenses.

Order:

1. At the time of Gerald McLetchie's accident, Mrs. Rosalie McLetchie was not the spouse of Mr. McLetchie within the meaning of the definition of "spouse" under section 224(1) of the Insurance Act, and is therefore not entitled to the benefits of a spouse pursuant to section 11(2)(a) of the Schedule?

2. At the time of Gerald McLetchie's accident, Christopher McLetchie was not principally dependent for financial support upon Gerald McLetchie within the meaning of the definition of "dependant" under section 3(2) of the Schedule, and is therefore not entitled to the benefits of a dependant pursuant to section 11(2)(c) of the Schedule?

3. At the time of Gerald McLetchie's accident, Ancil McLetchie was not principally dependent for financial support upon Gerald McLetchie within the meaning of the definition of "dependant" under section 3(2) of the Schedule, and is therefore not entitled to the benefits of a dependant pursuant to section 11(2)(c) of the Schedule?

September 14, 1995

Joyce Miller Arbitrator

Date

(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;

(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,

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

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. 2Pre-hearing letter dated August 8, 1995
3. 3Lucien Couraud and Co-operators General Insurance Company, October 31, 1994, OIC File No. A-006346
4. 4The pre-hearing letter of March 15, 1995 indicates that the Applicant knew Gerald McLetchie earlier than she stated. According to the pre-hearing letter she had a daughter, Marcia, with Gerald McLetchie in 1963, when the Applicant was 14 years old.
5. 5Exhibit 7, Tab 28 and Exhibit 6, Tab 4 and 5
6. 6Exhibit 7, Tab 18
7. 7Exhibit 6, Tabs 3 and 10
8. 8Exhibit 6, Tab 17
9. 9Exhibit 6, Tab 23
10. 10Exhibit 6, Tab 19
11. 11Exhibit 3
12. 12Section 11(2)(a) is found in Part III of the Schedule. Part III provides for funeral expenses and death benefits for the family of an insured person who as died as a result of a car accident. Section 11(2)(a) of the Schedule, states:
13. 13Exhibit 6, Tab 3
14. 14Exhibit 6, Tab 10
15. 15Exhibit 6, Tabs 6 and 11
16. 16Exhibit 6, Tab 26
17. 17Exhibit 6, Tab 24
18. 18Nadine Osbourne and Allstate Insurance Company of Canada and York Fire & Casualty Insurance Company, March 6, 1995, OIC File Nos. A-009110 and A-009111
19. 19Bellis v. Innes (1980), 1980 CanLII 3813 (BC SC), 21 R.F.L. (2d) 40 (B.C.Co.Ct.)
20. 20Section 11(2)(c) is found in Part III of the Schedule. Part III provides for funeral expenses and death benefits for the family of an insured person who as died as a result of a car accident. Section 11(2) of the Schedule, states:
21. 21Exhibit 6, Tab 3
22. 22Exhibit 6, Tab 10
23. 23Exhibit 6, Tabs, 6 and 7 and the testimony of Eudora McLetchie
24. 24Exhibit 1
25. 25Exhibit 6, Tab 13
26. 26Adolf Crnkovic and Maria and Simcoe & Erie General Insurance Company, April 8, 1993, OIC File No. A-002228