Neutral Citation: 1995 ONICDRG 172

OIC A-009267

ONTARIO INSURANCE COMMISSION

BETWEEN:

JOYCE ALFRED

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

AND BETWEEN:

OIC A-009268

JOYCE ALFRED

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Joyce Alfred, was very seriously injured in a motor vehicle accident on December 30, 1993. She is receiving accident benefits payable under Ontario Regulation 672¹ arising out of her injuries in the accident.

The only issue in this arbitration is which of two insurers — Allstate Insurance Company of Canada or State Farm Mutual Automobile Insurance Company — is liable to pay these benefits. Pending resolution of this issue, Allstate and State Farm are sharing the costs of the benefits.

When the accident occurred, Ms. Alfred was a passenger in a vehicle insured by State Farm. Allstate insured a motor vehicle owned by Mr. Jebanendran Vyramuthu. The issue is whether Ms. Alfred was Mr. Vyramuthu's spouse at the time of the accident. If so, she is an insured person under Mr. Vyramuthu's policy and must look to benefits from Allstate.²

Result:

Allstate Insurance Company of Canada is liable to pay Ms. Alfred's benefits.

Hearing:

The hearing was held in North York, Ontario, on December 1 and 2, 1994, before me, Susan Naylor, arbitrator.

Present at the Hearing:

Applicant:

Joyce Alfred

Applicant's Representative:

Joseph Falconeri

Barrister and Solicitor

Allstate's Representative:

James Flaherty

Barrister and Solicitor

State Farm's Representative

Eric Grossman

Barrister and Solicitor

The proceedings were interpreted by an interpreter in the Tamil language, and recorded by a court reporter.

Ms. Alfred and Mr. Vyramuthu were the only witnesses. There were two exhibits. Both insurers filed a brief of authorities. These are listed in Appendix A.

The statutory context: the definition of spouse

Section 268 of the Insurance Act sets out liability for payment of accident benefits. It establishes rules to determine which insurer is liable to pay benefits: The relevant part of section 268(2) states:

1. In respect of an occupant of an automobile:

i. The occupant has recourse against the insurer of an automobile in respect of which the occupant is an insured,

ii. If recovery is unavailable under subparagraph i, the occupant has recourse against the insurer of the automobile in which he or she was an occupant.

Subsections (4) and (5) address the circumstances in which an applicant may choose the insurer that is to pay. However, section (5) provides that a person who is "a named insured under a contract evidenced by a motor vehicle liability policy or .. the spouse or a dependant, as defined in the [Schedule], of a named insured," must claim benefits against the insurer under the policy.

"Insured person" in respect of a particular motor vehicle liability policy is defined in section 2 of the Schedule to include:

(a) in respect of accidents in Ontario, an occupant of the insured vehicle,

(c) the named insured, his or her spouse and any dependant of either of them while the occupant of any other automobile.

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

"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.

General principles of statutory interpretation — that the legislation is remedial in nature, and therefore should be accorded a broad and liberal interpretation in keeping with its objectives — apply to interpretation of the Schedule.

I discussed the relationship between the extended definition of spouse in the Insurance Act and the Family Law Act in the arbitration decision Yvonne Rodrigue and Melissa Rodrigue and Canadian General Insurance Company, August 30, 1995, OIC File No. A-005175:

The legislative history of the extended definition of spouse in the Ontario Standard Automobile Policy³ 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....The court noted that a number of legislative schemes, originating with the 1978 Family Law Reform Act⁴ 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.

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.⁵

Ms. Alfred and Mr. Vyramuthu are the natural parents of a child. Their daughter, Dalsini, was born on December 17, 1990, about three years before the accident that is the subject of these proceedings. Ms. Alfred and Mr. Vyramuthu were not married to each other before the accident (they were married later). They therefore meet two of the essential elements of the definition of "spouse" contained in the second part of subsection (c) of section 224(1) of the Insurance Act.

The other elements required are that:

1. Ms. Alfred and Mr. Vyramuthu have cohabited together

2. in a relationship of some permanence

I accept the submissions of counsel for Allstate that the phrase "in a relationship of some permanence" modifies the word "cohabitation". It must be established that the parties cohabited together, although — in contrast to the first part of subsection (c) — there is no requirement that cohabitation be of a specified duration. In this respect, the second part of subsection (c) imposes a less stringent test than the first part; it does not require cohabitation to be continuous or last for a certain amount of time, because there are children of the relationship involved.

There is no definition of "cohabit" in the Insurance Act. The term is defined in the Family Law Act to mean "to live together in a conjugal relationship, whether within or outside marriage".⁶ In various family law cases, the concept of cohabitation has been described as "living together in a "marriage-like" relationship outside marriage"⁷ and "to live together as husband and wife."⁸ These descriptions correspond to dictionary definitions of the word "cohabit";⁹ for example, the Concise Oxford Dictionary defines the word "cohabit" to mean "live together, esp. as husband and wife without being married."

The concept of cohabitation, as described in the cases, is commonly understood, and I adopt these ordinary language definitions for the purposes of the Insurance Act.

Whether or not a couple has cohabited in the legal sense involves both an objective and a subjective test: determining the intention of the parties from the facts.

In Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON HCJ), 17 R.F.L. (2d) 376, Kurisko J. categorised the essential elements of the inquiry as including 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.

Some cases have emphasised one element over another. In Re Stoikiewicz and Filas (1978), 1978 CanLII 1328 (ON HCJ), 21 O.R. (2d) 717, Steinberg U.F.C.J. stressed the economic side of the partnership, concluding that:

It is my view that unmarried persons cannot be found to be cohabiting within the meaning of s. 14(b)(i)¹⁰ unless it can be determined that their relationship is such that they have each assumed an obligation to support and provide for the other in the same manner that married spouses are obliged to do under s. 15 of the Act.

Cases that have considered the meaning of the phrase "cohabited in a relationship of some permanence" have found very brief periods of cohabitation to be sufficient. In Labbe v. McCullough (1979), 1979 CanLII 2139 (ON PROVCT), 23 O.R. (2d) 536, the parties lived together at the applicant's apartment for only six weeks out of a total period of 19 months. The cohabitation was brief and sporadic. The respondent worked out of town for the rest of the time, and left all his possessions at his parents' home where he had lived before. During the brief period of cohabitation, the applicant conceived the respondent's child. When she told the respondent of this, he terminated the relationship. Weisman Prov. Ct. J. held that the parties cohabited in a relationship of some permanence, on the basis of the brief period that they lived together. Judge Weisman distinguished the emphasis placed on economic arrangements in Re Stoikiewicz v. Filas, on the basis of the "peculiar economic arrangements between the parties" in that case. Judge Weisman concluded that the parties cohabited in a relationship of some permanence, notwithstanding the brief period of cohabitation, primarily because there was some talk of marriage some day:

In my view, this gives the relationship a touch of permanence. The Legislature has used the words "some permanence" and I cannot find that there was no permanence to the relationship.

Whether the couple share the same home is a very important factor.¹¹ However, in some instances, couples who maintained separate residences have been held to be spouses, when their living arrangements are viewed in the broader context of their relationship.¹² The cases have focused on the overall relationship rather than simple residency.

These cases illustrate the overriding principle: that each case turns upon its own special facts. Shared residency and joint economic arrangements may be the determinative criteria in many cases but not, given a different factual context, in certain others.

The extent to which the different elements of the marriage relationship will be taken into account must vary with circumstances of each case.¹³

Evidence and Findings:

The history of the relationship between Ms. Alfred and Mr. Vyramuthu arises out of the civil disturbances in the war-torn country of their birth, Sri Lanka.This was where they first met each other in late 1989/early 1990. At the time, Mr. Vyramuthu, who was working in Germany, was visiting his family in Sri Lanka. Ms. Alfred, who was 24 years old, was living with her parents in a nearby village. Over the course of several months, Ms. Joyce and Mr. Vyramuthu developed an intimate relationship; their intentions towards each other appeared to be serious and they discussed getting married. In early 1990, Ms. Joyce conceived Mr. Vyramuthu's child.

The break-out of hostilities in Sri Lanka interrupted their relationship. Mr. Vyramuthu returned to Germany, while other members of his family, including his parents and brothers and sisters, came to Canada. Ms. Joyce was forced to flee to India. From there, she came to Canada as a refugee claimant, arriving on August 5, 1990.¹⁴ Her daughter, Dalsini, was born some five months later.

During that time, Ms. Alfred and Mr. Vyramuthu were not able to contact each other. Ms. Alfred hoped that Mr. Vyramuthu would find his way to Canada, but could not be sure that this would happen. They both explained that, according to Tamil cultural traditions, they were expected to marry each other and that, in the meantime, Ms. Alfred would not consider marrying anyone else. In short, Ms. Alfred would wait for Mr. Vyramuthu.

When Ms. Alfred came to Canada, she joined Mr. Vyramuthu's family in Toronto. Two of his brothers and a sister-in-law lived on the main floor of a house on Kenfin Avenue, owned by his parents. Ms. Alfred rented the basement apartment in the house, which had its own separate entrance. She supported herself on welfare and later family benefits, as a single parent.

Ms. Alfred testified that she had no contact with Mr. Vyramuthu for two and a half years after coming to Canada, until the spring of 1993. During this time, she reported to staff at the Ministry of Community and Social Services that Mr. Vyramuthu was in Germany and planned to join her in Canada when he could.¹⁵ It was clear from Ms. Alfred's testimony that she was aware that her benefits would be affected if Mr. Vyramuthu joined her.

Mr. Vyramuthu, in fact, arrived in Toronto in September 1991, a year after Ms. Alfred. Mr. Vyramuthu's evidence as to his activities and whereabouts during this time was vague. It seems that he lived with different relatives at various addresses during this time, but initially stayed at the Kenfin Avenue address when he arrived, and lived there for a number of months. He generally used Kenfin Avenue as his mailing address. He was at least notionally living there, according to the information he provided Allstate, when he completed his application for car insurance in March 1993.¹⁶

Ms. Alfred suggested that she was unaware that Mr. Vyramuthu was in the country or was living in the apartment upstairs. Mr. Vyramuthu testified that he knew that the mother of his daughter and the woman he planned to marry lived downstairs, but chose to have no contact with her. When asked about the reasons for his dissociation from Ms. Alfred, he cited "other problems" but was reluctant to provide an explanation.

Mr. Vyramuthu acknowledged seeing his daughter from time to time, explaining that his family would bring her up to the first floor apartment when Ms. Alfred went out.

Notwithstanding his conduct, Mr. Vyramuthu testified that he ultimately hoped and expected to renew his relationship with Ms. Alfred and to marry her. He testified that he was mindful of these plans when he completed an application for automobile insurance in March of 1993, in which he reported that he was married and that his wife was not licensed to drive.¹⁷

Ms. Alfred testified that she first encountered Mr. Vyramuthu in Canada in a shopping mall in the spring of 1993.¹⁸ They did not speak to each other. Subsequently, apparently through the intervention of the Ministry of Community and Social Services, Mr. Vyramuthu started to pay $50 a month in child support for his daughter. The Ministry records indicate that this was from June 1993 onwards, although both Mr. Vyramuthu and Ms. Alfred testified that the cheques did not start coming until September 1993.

Shortly before this, at the beginning of May 1993, Ms. Alfred moved into a new apartment at Sandhurst Circle.¹⁹ The lease was signed by Mr. Vyramuthu's brother, Baskaran, but this seemed to have been done as a formality, to guarantee the lease. It does not appear that Baskaran Vyramuthu ever lived there himself.²⁰

According to the testimony of Mr. Vyramuthu and Ms. Alfred, the initial payment of child support provided the catalyst for the renewal of their relationship. Mr. Vyramuthu re-established contact with his daughter, and from there, he and Ms. Alfred started to see each other again. Mr. Vyramuthu started spending weekends at Ms. Alfred's apartment, although he maintained his own residence at his sister's apartment throughout the week. He explained that he was working at two service jobs during this time, and therefore restricted himself to staying over at weekends.

Ms. Alfred estimated that Mr. Vyramuthu started to stay over at weekends at the end of October, while Mr. Vyramuthu thought it was somewhat later. However, the evidence suggests that their relationship was firmly established by mid-October 1993. It was at this time that Mr. Vyramuthu arranged to obtain a parking spot in Ms. Alfred's building at $40 a month, to enable him to park overnight without the risk of having his car towed.²¹

Throughout this time, Mr. Vyramuthu continued to pay monthly child support for his daughter. He sometimes brought food when he came to stay but otherwise did not contribute to Ms.Alfred's living expenses. According to Ms. Alfred, he left a few clothes at her apartment during the week, but did his laundry at his own place. They did not share responsibility for household management, although Mr. Vyramuthu would take Ms. Alfred shopping, when he could. He occasionally purchased clothes for their daughter and Ms. Alfred recalled that he once bought her a dress. They both claimed that Mr. Vyramuthu did not give Ms. Alfred any money (except for the child support payment) and maintained entirely separate financial arrangements.

Ms. Alfred testified that, in November 1993, she and Mr. Vyramuthu started talking about getting married. They planned to marry in a Hindu ceremony in January. Mr. Vyramuthu explained that he wanted to find a better job before they married. They spent the Christmas period together. Tragically, the accident intervened. After Ms. Alfred left hospital, she and Mr. Vyramuthu got married in August 1994.

Ms. Alfred and Mr. Vyramuthu testified that their culture and religious traditions forbade them to live together until they were formally married. Mr. Vyramuthu, who admitted that he was not particularly religious, said that it had never occurred to them to live together before they were legally married.

A number of elements in this case point away from a finding of cohabitation.

1. The parties maintained separate residences.

2. They had separate financial arrangements.

3. Mr. Vyramuthu did not contribute to household management in any material respect.

4. The couple's religious and cultural precepts prohibited their living together before marriage.

Counsel for Allstate submitted that the parties did not reside together at any point prior to the accident. He emphasised that Mr. Vyramuthu stayed overnight on weekends for only a short period before the accident, amounting to perhaps 15 or so occasions, and that prior to this, Mr. Vyramuthu had had no contact with Ms. Alfred for several years. I agree with his submission that merely staying overnight at an applicant's apartment does not satisfy the definition of cohabitation, even though the parties intend to get married.²²

However, the actions of the parties and their intentions and expectations must be viewed in their entirety. I have serious doubts that I was given the full picture of this couple's relationship and contact in Canada.

Mr. Vyramuthu and Ms. Joyce were a couple forced apart by the contingencies and uncertainties of war. They had a child together. They both contemplated a future together, when events allowed them to be reunited, in keeping with the cultural and social norms within which they operated. When Ms. Alfred came to Canada, she lived in the same house as Mr. Vyramuthu's family, presumably with these plans in mind. In this context, it is difficult to believe that the parties had no contact with each other for almost two years after Mr. Vyramuthu moved to Canada. This is particularly so when the couple both lived for a period of time under the same roof, and clearly expected, throughout this period, to make their future together. In the absence of a cogent explanation, I conclude that the couple's apparent distance probably did not reflect the reality of their relationship and that Ms. Alfred's continued eligibility for family benefits may have influenced their formal living arrangements.

It is not necessary to characterise the nature of those arrangements prior to the fall of 1993. It is unclear whether that Ms. Alfred and Mr. Vyramuthu cohabited in a legal sense prior to this time, but, in any event, I am satisfied that they did so afterwards, in the months leading up to the accident.

There is little question that the relationship was one of "some permanence". The couple was committed to each other and had concrete plans to marry, as in the example of Re Labbe and McCullough, cited previously.

Although, according to the testimony, Mr. Vyramuthu only stayed over at Ms. Alfred's apartment on weekends during the late fall of 1993, he structured his affairs so as to spend the majority of his free time at her home, with her and their daughter. The purchase of the parking space and Mr. Vyramuthu's own testimony suggests that he stayed over regularly, routinely and as a matter of course during this time. There may have been a number of reasons why he maintained a separate residence during the week and limited himself to living with Ms. Alfred on weekends. These might include cultural requirements that he and Ms. Alfred appear to live apart prior to marriage, convenience in respect of Mr. Vyramuthu's gruelling work schedule — he was working at two jobs during this time — or concerns about Ms. Alfred's family benefits. Ms. Alfred's receipt of family benefits may also explain why Mr. Vyramuthu did not contribute to her living expenses and the absence of shared financial affairs. However, I am satisfied that, viewed in the context of the broad spectrum of their particular relationship, the parties were cohabiting with each other on and off throughout, at least, November and December 1993. In my view, this is sufficient to bring them within the definition of "spouses" under section 224(1)(c) of the Insurance Act.

I heard some evidence from the parties about Tamil cultural and religious precepts. I am aware that the social, cultural and religious traditions of this couple's community discourages cohabitation outside of marriage. However, in this case, the evidence is clear that the couple's relationship, while no doubt influenced by their cultural background, has not followed a traditional path.

Based on the above, I find that Ms. Alfred and Mr. Vyramuthu were spouses at the time of the accident. Accordingly, Allstate is liable to pay Ms. Alfred's benefits. Allstate must repay State Farm the amount of the benefits that State Farm has paid to Ms. Alfred, in accordance with the prior agreement of the two insurers.

Expenses

Under section 282(11) of the Insurance Act, an arbitrator has discretion to award an applicant his or her expenses of the arbitration. This was essentially a dispute as to liability between two insurance companies and I am satisfied that Ms. Alfred should be entitled to her expenses in resolving the issue in her case.

Order:

1. Allstate Insurance Company of Canada is liable to pay Ms. Joyce Alfred's accident benefits.

2. Ms. Joyce Alfred is entitled to his expenses incurred in respect to the arbitration.

November 30, 1995

Susan Naylor

Senior Arbitrator

Date

APPENDIX A

List of Authorities filed:

Nowell v. Matthews et al. (1994), 1994 CanLII 7285 (ON CTGD), 19 O.R. (3d) 303

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

Re Feehan and Attwells (1979), 24 O.R. (2d) 249;

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

Re Sanderson and Russell (1979), 1979 CanLII 2048 (ON CA), 24 O.R. (2d) 429;

Re Geiger (1982), 11 E.T.R. 152;

Miller v. Safeco Insurance Company of America, 1984 CanLII 2019 (ON HCJ), [1984] I.L.R. 1-1848;

July v. Neal (1986), 1986 CanLII 149 (ON CA), 57 O.R. (2d) 129;

Mcintyre v. West Wawanosh Mutual Insurance Co., March 25, 1994, unreported, Ontario Court (Gen. Div.);

McCartney v. Dominion of Canada, August 25, 1994, unreported, Ontario Court (Gen. Div.) File No. 2202/93.

Commission decisions:

Daniel 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;

Margaret McGuire (Deceased) and Zurich Insurance Company and State Farm Mutual Automobile Insurance Company, June 20, 1994, OIC File Nos. A-002988 and A-002989;

Leonard Robinson and Zurich Insurance Company, October 12, 1994, OIC File No. A-007196;

Dani Tripone and Guardian Insurance Company of Canada and Liberty Mutual Fire Insurance Company, May 16, 1994, OIC File No. A-004757.

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. 2Insurance Act, R.S.O. 1990, c. I. 8, s. 268(2) and (5); Schedule, s. 2.
3. 3Section B, Subsection 2 and 3, Part II
4. 4R.S.O. 1978, c. 2, Part 1
5. 5Paragraph 114
6. 6Section 1 (1)
7. 7Re Feehan and Atwells (1979), 1979 CanLII 1613 (ON HCJ), 24 O.R. (2d) 248
8. 8Re Sanderson v. Russell (1979), 1979 CanLII 2048 (ON CA), 24 O.R. (2d) 429
9. 9See e.g. Re Geiger (1982), 11 E.T.R. 152
10. 10Family Law Reform Act, 1978, c 2, definition of spouse
11. 11Nowell v. Mathews (1994), 1994 CanLII 7285 (ON CTGD), 19 O.R. (3d) 303
12. 12McEachern v. Jackson, unreported, Sheppard J., Ontario Court General Division, Court File No. 25613/93, reasons issued on July 22, 1993, cited in the arbitration decision Yvonne Rodrigue and Melissa Rodrigue, supra.
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. 14Record of Landing, Exhibit 1, Tab 14; Ms. Joyce was granted refugee status on May 13, 1991.
15. 15Exhibit 1, Tab 11
16. 16Exhibit 1, Tab 13
17. 17Application for automobile insurance, dated March 13, 1993; Exhibit 1, Tab 13.
18. 18See also report in Exhibit 1, Tab 11, client information update form, August 12, 1993
19. 19Exhibit 1, Tab 11
20. 20Case review sheet, 4/5/93, Exhibit 1, Tab 11
21. 21Exhibit 1, Tab 12
22. 22Re Geiger (supra note # 10)