Neutral Citation: 1997 ONICDRG 74
OIC A96-000425
ONTARIO INSURANCE COMMISSION
BETWEEN:
BRANDY HILL (MINOR) and WENDY HILL
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
DECISION
Issues:
Mr. Steven Kyle Thomas died as a result of the injuries he sustained in a motor vehicle accident on December 14, 1993. At the time of his death he was living with Wendy Hill and her daughter, Brandy Hill. Ms. Hill applied to Zurich Insurance Company on her and Brandy's behalf for death benefits she claims are payable under the Statutory Accident Benefits Schedule —Accidents Before January 1, 1994. Ms. Hill alleges that Zurich must pay her death benefits because she meets the definition of "spouse" under the Schedule, either: because she was married to Mr. Thomas by native custom; because she was deemed to be married to Mr. Thomas by an order declaring her to be a widow under the federal Indian Act; or, because Mr. Thomas was an "adoptive" parent of Brandy by native custom. (Brandy would be entitled to a death benefit as Mr. Thomas' "dependant" if Ms. Hill met the definition of Mr. Thomas' spouse.) Ms. Hill also alleges that Brandy has an independent right to a death benefit.
The parties were unable to resolve their disputes through mediation and Ms. Hill applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Wendy Hill entitled to a death benefit pursuant to paragraph 11(2)(a) of the Schedule?
Is Brandy Hill entitled to a death benefit pursuant to paragraph 11(2)(c) of the Schedule?
Ms. Hill also claims interest on any amounts owing, and her expenses incurred in the hearing.
Result:
Wendy Hill is not entitled to a death benefit pursuant to paragraph 11(2)(a) of the Schedule.
Brandy Hill is not entitled to a death benefit pursuant to paragraph 11(2)(c) of the Schedule.
Ms. Hill is entitled to her expenses incurred in the hearing.
Hearing:
The hearing was held in Brantford, Ontario, on Tuesday, November 26, 1996, before me, David Evans, Arbitrator.
The Appendix lists those present at the hearing, the names of witnesses, and the exhibits.
Evidence and Findings:
Background
The following facts in this case were not contradicted. Mr. Steven Kyle Thomas died as a result of the injuries he sustained in a motor vehicle accident on December 14, 1993. At the time of his death he was living with Wendy Hill and her daughter, Brandy, who was not his natural child. The car he was driving was owned and insured by Ms. Hill. Mr. Thomas and Ms. Hill had cohabited less than three years at the time of the accident.
Wendy Hill testified that she and Mr. Thomas, who like herself was a Native Canadian, had started living together in September 1991 at her parents' house; they had been seeing each other for approximately a year at that point. Her parents consented, as they liked Mr. Thomas. Pursuant to their native customs, they sat with the couple and told them about marriage and raising children. There were no marriage formalities other than this talk, during which the couple let the parents know that they understood and would listen.
Ms. Hill testified that she and Mr. Thomas had talked about marrying, but she took the position that it was not necessary. Mr. Thomas had wanted to marry her after a month of their living together, because that was what he had seen on television and some band members do have a formal marriage ceremony. Ms. Hill testified that her father said a big ceremony was not needed, and that traditionally there is no day where you are the focus, such as happens in a marriage ceremony.
Brandy was about five years old when Ms. Hill and Mr. Thomas started living together. Ms. Hill testified that in their customs, when two people become a couple, and the woman has children from a previous relationship, the man assumes the responsibility of a parent. Mr. Thomas spent time with Brandy, took her places, and brought her things whenever he came back from the store. Mr. Thomas had discussed formally adopting her, but Ms. Hill did not want to do this because she could see no difference in obtaining a piece of paper. She told him that under their beliefs he had already adopted her, so the matter was left at that. Ms. Hill considered Mr. Thomas as a father, as did Brandy. Brandy called him "Hatnih," which means "my father."
Ms. Hill testified that other Band members do adopt children through the Children's Aid Society. Mr. Thomas had talked about that kind of adoption, but Ms. Hill testified that he only wished that kind of adoption because he had not been raised in the traditions.
Ms. Hill worked at the Pine Tree Native Centre earning $400 a week. She earned more than Mr. Thomas. Mr. Thomas was studying at Mohawk College, for which he received subsidies and grants. The two cars they used were in her name, a Grand Am she had purchased for $1,200, and a Ford Explorer she had purchased for $28,000 with a loan in her name.
Some six months after moving in with her parents, Ms. Hill and Mr. Thomas moved into a house which they were building. The house, which was in Ms. Hill's name, was mostly completed at the time of his death. Mr. Thomas assisted with the expenses and with matters such as painting.
Ms. Hill summed up her relationship with Mr. Thomas as follows: they lived as husband and wife, both regarding Brandy as their child, on and off the reservation, living as any two people together. She admitted that the relationship was the same as a common-law relationship.
Brandy, who is now about 10 years old, also testified, but she was too shy to give very much evidence. She said Mr. Thomas was like a father, in that he helped her if she had trouble with school or was sick, spent most of his time with her, and took her places.
Mr. Thomas died on December 14, 1993, while driving Ms. Hill's Grand Am. He was on his way to a dental appointment that morning when he apparently lost control on black ice and went into the ditch.
Chief Arnie General also gave testimony, essentially confirming what he set out in a statement dated November 21, 1996. I will summarize what is in his statement first.
Chief General is a Condoled Chief of the Confederacy of the Beaver Clan, appointed by clan mother Edith Jacobs. Condoled Chiefs are upholders of the religious community with the capacity to marry persons:
There is in fact available a ceremony for a marriage. It is a lengthy ceremony and involves preaching in the Cayuga language. One is not required to go through the ceremony to be married in our traditional custom.
Chief General estimated that only 10% of his people use the ceremony. The 90% who do not are still considered married, as he considered Wendy Hill and Steven Thomas to be married:
I was aware of the relationship of Wendy Hill and Steven Kyle Thomas. The relationship was recognised as Steven Kyle Thomas had taken Wendy Hill as his wife. Their relationship was in accord with our traditional customs. Many native people never get married in the formal documented way that white men get married. We do not require a piece of paper as that is not the way we look at life. We do not have the word marriage as such in our language. It is clear that they had thought it over and were working together.
We have no custom in our culture for divorce.
A relationship entered into is meant to be permanent. When natives enter any other form of marriage it is usually done specifically for the purpose of facing the Canadian society.
In regard to adoption, we do not go through a process of adoption, but rather a process of accepting. There is no Long House ceremony for adopting a child.
In our culture once Steven got together with Wendy and her child Brandy he accepted the child as his.
Chief General added in his testimony that once a couple starts living together there is no particular time period after which the Band recognizes them as married. They are recognized as married as long as they are living in harmony. He testified that couples who live together one or two years but not permanently are not traditional people. Chief General took the position that those who do get married European-style are mostly not traditional and have become assimilated.
As for adoption through the Children's Aid Society, Chief General testified that this form of adoption was imposed upon his people to cover situations where there was abuse in the family structure or the children were being neglected. Although there is no word for adoption in his language, children are taken into the household to be looked after and both parties take care of the children. He testified that from what he had seen, Mr. Thomas had acknowledged Brandy, and she looked at him as a father.
Law and Findings
Ms. Hill claimed death benefits under section 11 of the Schedule for herself and Brandy. Because she had purchased Optional Benefit 1, she claimed the increased benefits under paragraphs 11(2)(a) to a surviving spouse in the amount of $50,000 and 11(2)(c) to surviving dependants in the amount of $20,000.
Subsection 3(2) of the Schedule provides that 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. At the time of the accident, Mr. Thomas was a student and Ms. Hill worked. She provided for Brandy. Therefore, Brandy was not principally dependent for financial support upon Mr. Thomas but rather upon her mother, Wendy Hill. Brandy can only be Mr. Thomas' surviving dependant if Wendy Hill fits within the definition of "spouse."
The relevant definition of "spouse" is set out in subsection 224(1) of the Insurance Act:
"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.
As noted above, Mr. Thomas and Ms. Hill had not cohabited continuously for three years at the time of his death. Brandy Hill is not Mr. Thomas' natural child, nor had any formal adoption taken place.
Ms. Hill relies on native custom and the Indian Act, R.S.C. 1985, c.I-5 as amended, to advance her case. She argues that — notwithstanding the lack of a formal marriage ceremony — she and Mr. Thomas were married. Further, Ms. Hill argues that, as she was declared to be a widow under the Indian Act, then she must have been a spouse. Finally, Ms. Hill argues that, pursuant to native custom, Mr. Thomas was Brandy's adoptive parent. As she and Mr. Thomas had cohabited in a relationship of some permanence at the time of his death, she alleges that she would thus fit within the second branch of the definition of spouse set out in paragraph (c).
"Married"
With respect to the issue of whether Ms. Hill and Mr. Thomas could be considered as married by native custom, Zurich submits that there was nothing distinctive or unique in character about their relationship to take it beyond the level of a common-law relationship into the realm of a marriage. For this proposition Zurich relies upon the case Manychief v. Poffenroth, 1994 CanLII 9073 (AB KB), [1995] 3 W.W.R. 210 (Alta. Q.B.). I quote from the head note:
The plaintiff and the deceased lived together as husband and wife for 82 years prior to his death in an automobile accident. There was one child of the union. The plaintiff claimed that they had intended to marry. The plaintiff was a treaty Indian and practised the Indian religion. The deceased was Metis, and did not participate in Indian ceremonies. The plaintiff claimed that, in the eyes of her people, the couple was married. The plaintiff made a claim for recovery as a wife under the Fatal Accidents Act. The preliminary issue of whether the plaintiff qualified as a wife under that Act was ordered to be tried.
A large part of the decision is given over to a careful analysis by McBain J. of whether Canadian jurisprudence recognizes the validity of a native marriage by custom.
Referring to the jurisprudence, McBain J. noted that the fact that aboriginal peoples engage in a particular activity does not qualify such activity for special protection afforded to aboriginal rights. Thus, a practice which had not been integral to the organized society and its distinctive culture, but which became prevalent as a result of European influences, would not qualify for protection as an aboriginal right.
McBain J. found that, in the particular case of the Blood Band's traditions, a native marriage by custom could be recognized, but the relationship of the plaintiff to the deceased did not fit into that custom.
In Manychief, an elder testified that a traditional "Indian marriage" was arranged by the parents, whose consent was required. The bride would be "delivered" to the groom's family for final acceptance, and sometimes an exchange of gifts would take place. The elder testified that this type of marriage had occurred as recently as twelve years before the trial. Since then, the evidence showed that most younger members of the Band were getting away from "Indian customs" and were having "church weddings."
McBain J. found that these traditional elements were missing in the relationship between the plaintiff and the deceased. The fact that the couple had intended to marry was perhaps indicative of how they had perceived themselves. As well, the plaintiff had answered negatively when asked in her examination for discovery whether she was married.
McBain J. concluded on the facts in that case that the plaintiff's relationship with the deceased did not constitute an Indian marriage by custom as it was different in nature and scope from the traditional form of customary Indian marriage both substantively (parents pre-arranging the marriage) and procedurally (the selection-approval-delivery-acceptance sequence) and held no distinctive aboriginal dimension. As well, the traditional marriage by custom had not been practised in the last 12 years, giving way to either "church weddings" or common-law relationships:
The relationship in question really shows no distinct aboriginal dimension. Many common-law couples raising children in non-native society are also viewed by others in those communities as being married, for all intents and purposes. Nor is it unusual in those non-native communities for a woman to seek her parents' consent before entering into a common-law relationship with a man.
I find Manychief difficult to distinguish on its facts from the current case. There was a form of marriage ceremony available here, albeit the evidence of Chief General was that most Band members did not use it. The relationship between Ms. Hill and Mr. Thomas had many similarities to a common-law relationship. I am not persuaded by Ms. Hill's submission that there was an important distinguishing element, namely the discussion between Ms. Hill's parents and the couple prior to their starting to live together. Such a discussion would not necessarily be uniquely aboriginal.
On balance, I find that Ms. Hill and Mr. Thomas were not married at the time of his death.
Widow
Ms. Hill also argued that, as she had been declared a widow, she must have been a spouse.
Sections 42 through 44 of the Indian Act deal with the descent of property. Section 42 vests in the relevant Minister all jurisdiction and authority in relation to matters and causes testamentary with respect to deceased Indians. Section 43 gives the Minister power to appoint administrators of estates of deceased Indians, authorize administrators to administer the property of Indians who die intestate, and make any order that is necessary or desirable to make with respect to any matter referred to in section 42.
Mr. Thomas died intestate.
Under section 48, a widow of an intestate is entitled to all or a portion of the estate of an intestate, depending on the estimated value of the estate.
Regulations respecting Indian estates were issued as the Indian Estates Regulations under the Indian Act. Various sections of the Regulations set out the steps to be taken and deals with other issues arising after the death of an Indian. Section 14 is titled Woman Deemed to be a Widow:
- The Minister may direct that a woman shall be deemed to be the widow of a deceased Indian..for the purposes of these Regulations,
(b) where there had been no prior marriage of the deceased Indian or of herself to another person, the woman establishes that she had, for a number of years immediately prior to the death of the deceased Indian with whom she had been residing, been maintained and publicly represented by the deceased Indian as his wife, whether or not there had been children of that relationship.
[Emphasis added]
Read together, section 14 of the Regulations and section 48 of the Indian Act provide that a woman declared to be a widow of a deceased intestate Indian is entitled to her portion of the deceased's estate as if she and the deceased had been married at the time of his death.
By Order dated March 3, 1994, issued pursuant to the Regulations, Ms. Hill was deemed to be the widow of Mr. Thomas. The maker of the order was satisfied that Mr. Thomas and Ms. Hill were unmarried, that they had been residing together approximately two years until immediately before his death, and that Wendy Annette Hill had been maintained and publicly represented by Mr. Thomas as his wife. Attached to the Order is an appointment of Ms. Hill as administrator of the estate of Mr. Thomas.
Counsel for Ms. Hill submitted that the Order, by deeming Ms. Hill to be a widow, in effect deemed her and Mr. Thomas to have been married at the time of his death.
I have some difficulty with this submission. By very definition in the Regulations, and as set out in paragraph 3 of the order itself, Ms. Hill and Mr. Thomas were unmarried. The deemed widowhood allows Ms. Hill to collect her portion from Mr. Thomas' estate. For instance, if he had a life insurance policy payable to his estate on his death, then Ms. Hill would be entitled to her portion of those proceeds. However, the death benefits in question do not form part of Mr. Thomas' estate: they are not payable to his estate regardless of his married or unmarried status at the time of his death, but rather are payable to parties who had a certain status at the time of his death. The present claim is being made by Ms. Hill personally and on behalf of her daughter, not Ms. Hill as administrator of the estate of Mr. Thomas. The order by its very terms recognizes that Ms. Hill did not have the status of being married to Mr. Thomas or to anyone else at the time of his death. I am not persuaded that the declaration of widowhood ex post facto changed that status.
Accordingly, I find that the declaration of widowhood for the purposes of the disposition of Mr. Thomas' estate did not change Ms. Hill's status from unmarried to married.
Adoptive Parent
Ms. Hill submitted that Mr. Thomas was an "adoptive parent" of Brandy by a customary adoption, and that therefore the broader test for "spouse" under subsection 224(1) of the Insurance Act applies, namely, in these particular circumstances, either of a man and a woman who are not married to each other and have cohabited in a relationship of some permanence if they are the adoptive parents of a child.
Adoption was not known at common law. It is a creature of statute. Until adoption statutes were passed, the law in Ontario was as set out in Re Davis, [1909] O.L.R. 384, where the head note reads: "The law of this Province knows nothing of adoption; and an agreement by parents to deprive themselves of the custody of their child is not legally binding upon them." The effect of custom adoptions was considered by the British Columbia Supreme Court in Michell v. Dennis and Dennis, [1984] 2 W.W.R. 448, where Hutchinson L.J.S.C. wrote the following at p.454:
In British Columbia, as in other common law jurisdictions, adoption by custom conferred no legal rights or obligations on the adopted child or adopting parents. Only moral rights or obligations arose from that relationship, though in equity a natural father's conduct could preclude him from asserting his natural and common law rights of custody ...The first Canadian province to give legal sanction to an adoption was New Brunswick, in 1873. British Columbia passed its first legislation on the subject in 1920 [Adoption Act, 1920 (B.C.), c. 2] and Ontario followed suit in 1921 [Adoption Act, 1921 (Ont.), c. 55].
Adoption provisions in Ontario are now contained in the Child and Family Services Act, R.S.O. 1990, c. C-11, of which Part VII is entitled "Adoption." These provisions provide a complete code for adoption in the Province of Ontario.
The essence of the nature of adoption is set out in subsection 158(2):
(2) For all purposes of law, as of the date of the making of an adoption order,
(a) the adopted child becomes the child of the adoptive parent and the adoptive parent become the parent of the adopted child; and
(b) the adopted child ceases to be the child of the person who was his or her parent before the adoption order was made and that person ceases to be the parent of the adopted child, except where the person is the spouse of the adoptive parent, as if the adopted child had been born to the adoptive parent.
[Emphasis added]
Counsel for Ms. Hill submitted that "adoptive" is not a word of statute, but rather is an ordinary word. The word "adoptive" does appear in section 158. Whether or not that in itself is enough to make the word a word of statute, it is clear from the cases outlined above that adoption was not known at common law and is a creature of statute. Surely it follows that, to be an adoptive parent, one has to have adopted a person. I find that, in order to be considered an adoptive parent under the Schedule, Mr. Thomas would have had to have adopted Brandy.
Counsel also submitted that Mr. Thomas had shown a "settled intention" to treat Brandy as his child. I note that a "settled intention" does not form part of the definition of "dependant" under the Schedule as it stood at the time of the death of Mr. Thomas. A settled intention to treat, if it existed, is not sufficient to meet the definition in the Schedule.
I was presented with cogent arguments to the effect that "adoption" in Ontario means adoption under the Child and Family Services Act. I can find no section that specifically or implicitly recognizes a customary adoption, unlike in the western cases that were cited to me. Although a number of sections do provide for a sensitivity to aboriginal society, such as in the "Declaration of Principles" in section 1 (which recognizes that Indian and native people should be entitled to provide, wherever possible, their own child and family services), the ultimate arbiter of an adoption appears to be an agency as defined in the Act. Although an agency is required to consult with its band or native community about adoption placements, it is the society or agency that ultimately makes the placement.
However, I find it is not necessary for me to make a decision on that point, as I find that the relationship between Mr. Thomas and Brandy did not constitute a customary adoption.
I am not convinced that there were any facts before me that gave the relationship between Brandy and Mr. Thomas a particularly "aboriginal" status. Surely, in most couples where one partner brings a child to the relationship one would expect to see a bonding between the other partner and that child similar to what was presented before me in evidence.
Be that as it may, I had no evidence before me on what appears to me to be one of the chief criteria of adoption: the removal of the parental rights of the birth parent. Adoption is a radical step. By one person becoming an adoptive parent, another person — in this case, presumably, it would have been Brandy's birth father — ceases to become a parent. There was no evidence before me that the acceptance of a child by a partner in a relationship between two members of the community in question ousts the rights of the birth parent of that child. I was provided with no evidence at all about Brandy’s birth father. This concept of the ousted birth parent applied in all the customary adoption cases (which were all from the West) that were cited to me. For instance, in Re Deborah E4-789, 1972 CanLII 2382 (NWT TC), [1972] 3 W.W.R. 194 (N.T.T.C.), Morrow J. found a customary adoption had occurred and ordered the birth parents — who had, as the court put it, repossessed their daughter — to give her back to the adoptive parents. And in Casimel v. Insurance Corporation of British Columbia (1993), 1993 CanLII 1258 (BC CA), 106 D.L.R. (4th) 720 (a case on which Ms. Hill in particular relied), Lambert J.A. specifically based his decision on the assumption that the birth mother lost all her rights and obligations of a parent after the customary adoption of her son by her parents.
I find that the criteria for a customary adoption are lacking in this case, and accordingly Mr. Thomas was not an adoptive parent of Brandy even according to the criteria for a customary adoption as set out in the western case law, whether or not these cases apply in the Province of Ontario. As Mr. Thomas was not Brandy’s adoptive parent, Ms. Hill does not meet the definition of his "spouse" under the Schedule, and neither Ms. Hill nor Brandy are entitled to the death benefits they sought.
Brandy's Right to Death Benefits
Counsel for Ms. Hill submitted that Brandy could be entitled to death benefits independently of whether or not Mr. Thomas and Ms. Hill were spouses, relying upon the decision in McDonald and State Farm.1
In McDonald, both Mr. and Mrs. McDonald — the parents of the children claiming death benefits — died. There was no dispute as to Mr. and Mrs. McDonald’s marital status at the time they died. Arbitrator Draper (as he then was) looked at the definition of "dependant" in section 3(2) and concluded as follows: "The plain meaning of section 3(2), in my view, is that if the children were principally dependent on either of their parents for financial support, or perhaps on both of them jointly, then they are dependants of both parents." However, the wording of section 3(2) defines a person as a dependant of another person if the person is principally dependent for financial support on the other person or the other person’s spouse. As Arbitrator Draper had accepted that a person can only be "principally dependent for financial support" on one source, and since Brandy was clearly principally dependent for financial support on her mother, I find this case of no help to Brandy and distinguishable on its facts, as I have found that Ms. Hill was not Mr. Thomas spouse. In short, Brandy has no independent right to death benefits.
Expenses:
Counsel for Zurich was satisfied that the usual rules about expenses at the time of this hearing would apply to this hearing. Accordingly, Ms. Hill and Brandy are entitled to their reasonable expenses of this hearing.
Order:
Wendy Hill is not entitled to a death benefit pursuant to paragraph 11(2)(a) of the Schedule.
Brandy Hill is not entitled to a death benefit pursuant to paragraph 11(2)(c) of the Schedule.
Ms. Hill is entitled to her expenses incurred in the hearing.
May 1, 1997
David Evans Arbitrator
Date
APPENDIX
Present at the Hearing:
Applicants:
Wendy Hill
Brandy Hill
Ms. Hill's Representative:
J.M. Arthur LeFebvre Barrister and Solicitor
Zurich’s Representative:
Brian Atherton Barrister and Solicitor
Court reporter:
Nicky Jones
Cindy Jones Verbatim Reporting Service
Witnesses:
Wendy Annette Hill
Brandy Hill
Chief Arnold General
Exhibits:
Exhibit 1
Arbitration Brief
Exhibit 2
Order dated March 3, 1994, deeming Wendy Annette Hill to be the widow of Steven Kyle Thomas pursuant to the Indian Act