Elham El-Hitti v. Halifax Insurance Company, 1998 ONFSCDRS 53

Neutral Citation: 1998 ONICDRG 53, 1998 ONFSCDRS 53

A-97-001629-DRA

ELHAM EL-HITTI (now known as Elham Raymond)

Applicant

and

Insurer

Before:

Susan Naylor, Director's Delegate

Counsel:

Catherine L. Coplea (for Mrs. El-Hitti)

Patricia Simpson (for Halifax Insurance Company)

ORDER

Pursuant to section 283 of the Insurance Act, R.S.O. 1990, c. I-8, this Tribunal orders that the Applicant produce the following:

A copy of the clinical notes and records of Dr. Suzanne Christie relating to Mrs. Elham El-Hitti ( now known as Mrs. Elham Raymond)

October 14, 1998

Susan Naylor Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF APPEAL

This appeal is from an arbitrator's decision about which insurer, Allstate Insurance Company of Canada ("Allstate") or Belair Insurance Company Inc. ("Belair") is responsible for paying Hilda Shaw's accident benefits. On December 31, 1994, Ms. Shaw was struck by a vehicle, which was insured by Allstate. She did not have insurance of her own but was living with Leslie Digby, who did. He insured his vehicle with Belair. The issue turns on whether Ms. Shaw and Mr. Digby are spouses. The relevant rules are set out in in the Insurance Act, R.S.O. 190 c. I-8, as amended by the Insurance Statute Law Amendment Act, 1993, S.O. 1993, c.10, ("the Act"), and the Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996, O.Reg. 776/93, (the "Schedule"). Under these rules, if Ms. Shaw and Mr. Digby are spouses, Mrs. Shaw is an insured person under Mr. Digby's policy with Belair, and Belair is responsible for her benefits. Otherwise, Allstate is liable.¹

"Spouse" is defined in’s . 1 of the Schedule to mean:

either of a man or a woman who,

(a) are married to each other

(b) have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Regulation, or

(c) have lived together in a conjugal relationship outside marriage at some point during the previous year and have lived together in a conjugal relationship outside marriage,

(i) continuously for a period of at least one year, or

(ii) In a relationship of some permanence, if they are the natural or adoptive parents of a child or have demonstrated a settled intention to treatr a child as a child of their family.

The case involves the definition in (c) (i), and, in particular, whether Ms Shaw and Mr. Digby were living in a conjugal relationship.

Both Ms. Shaw and Mr. Digby took the position they were not spouses, as did Belair. The arbitrator agreed with them, hence the appeal by Allstate.

II. FINDINGS AND ANALYSIS

The evidence was fully canvassed by the arbitrator. It is fair to say it was mixed. Some of the evidence pointed to the conclusion Mr. Digby and Ms. Shaw were spouses, other evidence pointed in another direction.

At the time of the accident, Ms. Shaw was 70 years old, Mr. Digby was 78. They had been living together since August 1983, (more than a decade), the time when Ms. Shaw and her adult daughter moved into Mr. Digby's condominuim unit. Mr. Digby was recently divorced and retired. The shared arrangement meant he did not have to live alone as he aged.

The arbitrator accepted that Mr. Digby and Ms. Shaw were close friends and companions, but found that their relationship, while warm, fell short of a marital relationship. He looked at a variety of relevant factors, identified in the case-law as indicia of a conjugal relationship. These included how the parties saw themselves, how they presented themselves to others and how others saw them. He also looked at their living and household arrangements, their sexual and personal relations, family and social interaction and their financial arrangements.

According to the evidence, Ms. Shaw and Mr. Digby shared many of the tasks involved in running a home. They accompanied each other to social and family functions, although not always, and went on holiday together, each paying their own way. They did not introduce or present themselves to others as spouses, but reported that they were sometimes refered to as such by acquantances. They were both self-supporting and their finances were independent. Mr. Digby paid the common condominium expenses, but they shared other household expenses. They paid for their own food and other supplies, but prepared a communal dinner meal.

There is little in the documentary records - tax returns, hospital records, etc. - indicative of a spousal relationship. There was evidence that, privately, they made some provision for each other in their wills, but that they never discussed it with each other either beforehand or afterwards.

Ms. Shaw did not share a bedroom with Mr. Digby and the arbitrator found no evidence of a sexual relationship. Ms. Shaw and Mr. Digby denied they had a marital or romantic relationship. According to their evidence, the relationship was in the nature of a close friendship and mutually advantageous and supportive living arrangement.Their evidence was concurred by Ms. Shaw's family members. The arbitrator accepted this picture as believable and consistent with the preponderance of the evidence.

Allstate called several witnesses in support of its position. However, their evidence was largely equivocal. The arbitrator rejected the account of Juliet Beard, the insurance adjuster, who testified that Mr. Digby and Ms. Shaw indicated to her on seperate occasions that they were living in a common-law relationship. The arbitrator concluded that Ms. Beard's notation of this discussion with Mr. Digby was not written contemporanously but was inserted after-the-fact. He sets out her credibility findings in some detail.

I have a transcript of the testimony given at the hearing. It is clear that, even so, an appeals adjudicator should not interfere with the arbitrator's assessment of the evidence, and particularly credibility findings, unless satisfied that the arbitrator has made a serious mistake. Allsate's position is that it is not disputing the arbitrator's findinds of fact. It argues that arbitrator erred in failing to conclude on the facts as he found them that, as a matter of law, Ms. Shaw and Mr. Digby were not living in a conjugal relationship.

The Insurance Act and Schedule contain seperate definitions of "spouse" in somewhat different terms. The definition of common-law spouse in s. 224(1) of the Act refers to a couple who are "not married to each other, and have cohabited continuously for a period of not less than three years". The period involved is obviously longer than under the Schedule. In addition, the section refers to cohabitation rather than the Schedule's terminology of living together in a conjugal relationship. Neither are defined further.

The Schedule's definition governs. However, it is not clear to me that much turns on the difference in language between cohabitation and living in a conjugal relationship. They are used interchangeably. For example, section 1(1) of the Family Law Act, (cite) defines "cohabit" to mean "to live in a conjugal relationship."

The general principles set set out in family law cases are applicable to accident benefits cases.² In Miron v. Trudel, [1995] cite, Madam Justice L'Heureux-Dube described the functional goal of the Ontario Stanadard Automobile Policy being to protect stable family units by insuring against the economic consequences that may follow from injury to one of the members of the family. Commenting on the obligation of mutual support imposed upon common-law spouses under family law, the judge stated that the basis purpose of the policy was

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

According to the court in Molodowich v. Penttinen (1980) 1980 CanLII 1537 (ON HCJ), 17 R.F.L. (2d) 376 (Ont. D.Ct.), "cohabit" and "conjugal" involve "overlapping and interwoven concepts, both an intergral and essential element encompased by the modern day concept of marriage". Cohabitation has also been defined as "living together in a marriage-like relationship outside marriage"³ or living together as husband and wife.⁴

Dictionary definitions of "conjugal" use similar language. Black's Law Dictionary defines "conjugal" as:

Of or belonging marriage or the married state; suitable or appropriate to the married state or to married persons; matrimonial; connubial.

"Conjugal rights" is defined seperately as

Matrimonial rights; the right which husband and wife have to each other's society, comfort and affection.

Allstate relies on on the later definition, emphasising the aspect of society, comfort and guidance. Cases have developed certain criteria, including both subjective and objective tests, against which to evaluate the relationship in issue.⁵ However, each case turns on its own particular facts.

In It is clear from the decision that the arbitrator carefully canvassed the relevant factors and evaluated the evidence in Ms. Shaw's case against them.

September 25, 1998

Susan Naylor Director's Delegate

Date

Footnotes

The Act, ss. 268(2) 2. i and ii; the Schedule, s. 1
See e.g. Rodrigue and Canadian General Insurance Company (OIC A-005175, August 30, 1995)
Re Feehan and Atwells (1979), 1979 CanLII 1613 (ON HCJ), 24 O.R. (2d) 248
Sanderson v. Russell (1979), 1979 CanLII 2048 (ON CA), 24 O.R. (2d) 429
See e.g. Molodowich v. Penttinen (supra), Bellis v. Innes (1980), 1980 CanLII 3813 (BC SC), 21 R.F.L. (2d) 40 (B.C.Co. Ct.); Feehan (Note 3)