Neutral Citation: 2000 ONFSCDRS 201

FSCO A99-000725

BETWEEN:

B. W.

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

REASONS FOR DECISION

Before:

Suesan Alves

Heard:

May 1, and 2, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Guy Rasquin for Ms. W.

Colin S. Jackson for Motor Vehicle Accident Claims Fund

On May 20, 1994, Mr. W. G., a pedestrian, died shortly after he was struck by a motor vehicle. The Applicant, Ms. B. W., alleges that at the time of the accident, she was Mr. G.'s spouse within the meaning of section 1 of the Schedule, and therefore entitled to a death benefit. The parties agree that if Ms. W. was a spouse, the death benefit payable is $50,000 under section 51(1)(b) of the Schedule.¹

The Motor Vehicle Accident Claims Fund ("the Fund") disputes Ms. W.'s claim. The parties were unable to resolve their dispute through mediation and neutral evaluation, and Ms. W. sought arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Was B. W. a spouse of W. G. within the meaning of section 1(c)(i) or (ii) of the Schedule, and therefore entitled to a death benefit of $50,000 under section 51(1)(b) of the Schedule?
Is Ms. W. entitled to her expenses in respect of the arbitration?

Ms. W. claims interest on overdue benefits under section 68 of the Schedule.

Ms. W. has not established on a balance of probabilities that she was a spouse of Mr. G. within the meaning of section 1(c)(i) or (ii) of the Schedule. She is not entitled to a death benefit under section 51(1)(b) of the Schedule.
There are no amounts owed which would attract payment of interest.
If counsel are unable to agree on expenses, that issue may now be addressed.

B. W. testified that she met W. G. in August 1987, in Italy. She was 35, divorced, and accompanied by her 13 year old son, S. Mr. G. was approximately 24 years of age. All were refugees from Poland. Ms. W. and Mr. G. dated while in Italy.

Ms. W. testified that in 1988, Mr. G. emigrated to Canada and settled in Toronto. She and her son emigrated in February 1989, and initially lived in London, Ontario. In the spring of 1989, Mr. G. visited her in London and they rekindled their relationship. Mr. G. persuaded her that job opportunities were better in Toronto, and found her a flat in Toronto to which she moved in June 1989. Ms. W. testified they began a sexual relationship in July 1989, and, in September 1989, they moved into an apartment in Downsview and began a spousal relationship.²

Ms. W. testified that she received mother's allowance of about $1,000 per month; Mr. G. was employed as an iron worker in construction and earned between $700-$900 a week. They split the cost of a kitchen table, a bed, dresser and a carpet to furnish the apartment. Ms. W. paid the rent of $700. Mr. G. paid the hydro of about $200 every second month, the gas, and the telephone bill of about $100. He also paid for the cable and large grocery purchases. He purchased a car and paid about $600 per month on the car.

Ms. W. testified she did the cleaning, cooking, laundry and washing for all three of them, and attended ESL classes to learn English. She testified on weekends they would go to the park, or a movie, and visit friends or her family in Mississauga. They spoke of opening a business together and of getting married. Mr. G. and S. would go fishing once or twice a month. Usually, Ms. W. remained at home while they went fishing at the Credit River in Mississauga.

Ms. W. testified that in November 1990, Mr. G. had an accident at work in which he broke both arms.³ Ms. W. testified that she looked after him while he convalesced. He received workers' compensation benefits, was off work for 6 to 7 months, then returned to work in about April 1991.

Ms. W. testified that in March 1991 she and her son moved to an apartment in Mississauga and Mr. G. remained in the apartment in Downsview.⁴ She testified the separation took place because her son was repeatedly truant from school, and, in February 1991, was caught shoplifting. Ms. W. felt he was being led astray by his friends. She moved to Mississauga, so that her son would attend the same school as his cousin who would ensure that S. attended school and otherwise supervise him.

Ms. W. testified that her relationship continued as before: he purchased some furniture for her apartment, bought her a television set, items of clothing, paid for the telephone, helped pay for groceries and continued to contribute about $300 per month to her financial support, as he had done when they lived together. They continued their sexual relationship, and spent as much time together as before. He continued to help her with the housecleaning, drove her to and attended Amway meetings, and helped her deliver Amway products which her customers purchased. They also attended church, dances and restaurants together, as they had done when they lived together.

On May 20, 1994, Mr. G. was returning to the Mississauga Hospital for treatment of his epilepsy. He was a crossing the street when he was struck by a motor vehicle. He died shortly afterwards.

Ms. W. submits that despite maintaining separate residences for more than three years, their spousal relationship endured until Mr. G.'s untimely death in May 1994. Ms. W. also submits that Mr. G. treated her son S. as a son, that she qualifies as Mr. G.'s spouse, within the meaning of section 1c(i) and (ii) of the Schedule and is therefore entitled to a death benefit of $50,000 under section 51(1)(b) of the Schedule. While the Fund concedes that there was a relationship between Ms. W. and Mr. G., it disputes Ms. W. was a spouse, and consequently her entitlement to a death benefit.

Law

Section 1(c)(i) and (ii) of the Schedule provides:

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

(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 treat a child as a child of their family;

In order to qualify for a death benefit under section 51(1)(b) of the Schedule, Ms. W. must establish on a balance of probabilities that at some point between May 1993 and May 1994, she and Mr. G. lived together in a conjugal relationship. In addition, she must either establish that the conjugal relationship was continuous for at least one year, or that she and Mr. G. demonstrated a settled intention to treat S., Ms. W.'s son, as a child of their family. Ms. W. submits that she meets the qualifications of both tests. For the reasons which follow I find that Ms. W. has failed to establish on a balance of probabilities that she meets either test.

The 1993-1994 period

The phrase in section 1 of the Schedule "lived together in a conjugal relationship," taken literally, requires Ms. W. and Mr. G. to have lived together in a conjugal relationship at some point between May 1993 and May 1994, and to have done so continuously for at least a period of one year. I find no evidence that they actually did so between May 1993 and May 1994.

In Rodrigue and Rodrigue and Canadian General Insurance Company,⁵ Arbitrator Naylor concluded that the general principles set out in the family law cases are applicable to accident benefit cases. The Applicant submits that the phrase "living together in a conjugal relationship" is also contained in the Family Law Act, R.S.O. 1990, c.F.3, and, in family cases which have interpreted that phrase, the living arrangements of the parties are a significant factor, but only one of seven factors examined to determine whether the parties were spouses.

The remaining six factors are the sexual and personal behaviour of the parties; the services they provided to each other; their social participation; societal attitudes towards them; their economic relationships; and their attitude and conduct concerning children.⁶ This is a broader test, in which a variety of factors are considered and the relationship is examined from the perspective of the alleged spouses, as well as that of the community and society.

Ms. W. testified that in May 1991, two months after she moved west to Mississauga, Mr. G. moved to the east end of Toronto, to be closer to the jobsite at which he worked. In 1998, Ms. W. and her son both deposed that Mr. G. spent weekends, from Friday evening to Monday morning, with her and also visited two or three times per week. Ms. W.'s sister testified that practically speaking, Mr. G. was living at her sister's apartment. Ms. W.'s son testified that Mr. G. was at their apartment in Mississauga every night and stayed at his own apartment one to three times a week. If the testimony of the Applicant's sister and son is accurate, then Ms. W.'s explanation for maintaining separate residences makes no sense.

Ms. W. testified that in the fall of 1993 she and Mr. G. became engaged, and in December 1993, he moved to an apartment in Mississauga to be closer to her. According to her testimony, Mr. G. had been through periods of disability, a lay off and job loss over the previous two to three years. They were trying to save money to buy a condominium. The cancellation of Mr. G.'s car insurance premiums for non-payment in April 1994 while he continued to drive the vehicle without insurance, suggests that Mr. G.'s finances were stretched. I find it implausible that at a time when they were planning a future together, trying to save money, when Mr. G. was alleged to be virtually a full-time dweller at her apartment, that he would move to Mississauga and incur the cost of renting a separate apartment.

I have considered whether this was a case in which they maintained separate residences for some other reason, such as maximizing the funds available to them, since Ms. W. was receiving mother's allowance. Ms. W. was not specifically asked this question. However, she testified that she did not know that she was required to advise Family Benefits that she was receiving financial support from Mr. G., and that she did not consider that this was relevant information to convey to Family Benefits. If this is true, then it would not have been a reason for maintaining separate residences. I am unable to conclude that there was any financial advantage or convenience to either Ms. W. or Mr. G. in maintaining separate residences.

In her testimony, Ms. W. provided great depth of detail in relation to the early days of the relationship in Italy and in Downsview; there was less depth of detail in her testimony from November 1990 forwards. Usually, persons have a greater and more accurate recall of events which happen recently than for events which are long past. For example, Ms. W. was able to testify about the amount of Mr. G.'s earnings and details of their budgeting and cost-sharing arrangements between September 1989 and October 1990, during a portion of the time she testified they lived in Downsview. While Ms. W. testified that they continued to live together in Downsview until February 1991, she had less specific knowledge of Mr. G.'s financial circumstances from November 1990 forward. She did not know the amount he received from WCB between November 1990 and April 1991, the amounts he received from UIC, or the amount of his rent at either his east Toronto apartment between 1991 and 1993 or his Mississauga apartment from December 1993 until the date of his death in May 1994.

Ms. W.'s income tax returns in relation to 1992 and 1993 state that Ms. W. is divorced; not a common law spouse. Ms. W. testified that her income tax returns were prepared by two different tax preparation services who checked off the "divorced" box without asking her about her marital status, and that she simply signed the forms without reading them over. It is possible that neither tax preparer made the inquiry, but I find it unlikely. The tax preparers would need this information to calculate her income taxes. I find it even more unlikely that two separate tax preparers would commit the same error. Even if she dealt with two incompetent tax preparers, who were prepared to guess at her marital status, it seems more likely that they would have checked off single or married, instead of "divorced." Given the family law criteria, her denial of the spousal relationship to third parties is a relevant factor in determining whether such a relationship existed during the time this documentation was prepared. Based on the evidence before me, I am not persuaded that this is a case in which Ms. W.'s income tax returns failed to reflect the reality of her relationship with Mr. G.

Ms. W. primarily presented a case of evidence from herself and her relatives. They provided evidence of the nature of the relationship from a personal perspective, which could only be provided by family members. However, there were conflicts in their testimony, and these are not disinterested, independent witnesses. Ms. W.'s allegation that she lived in a marriage-like state while maintaining separate residences over three years and between them had three moves in residence, is, in my view, sufficiently unusual, that in light of the conflicting evidence, she has some obligation to provide independent evidence to discharge her burden of proof.

Indeed, on the family law test, she should adduce evidence from members of the community as to how they viewed the relationship in the year before the accident. Although she deposed that she and Mr. G. attended church regularly as a couple, frequently went dancing at two Polish clubs as a couple, none of those persons were called to testify. Similarly, according to her 1997 statement, she sold Amway products and Mr. G. was sufficiently involved with her business that people from Amway also knew them as a couple. No one associated with Amway was called to testify.

Ms. W. tendered a copy of a telephone bill dated September 1991, which shows her Mississauga address and Mr. G.'s name. Ms. W. submits that this documentation establishes that Mr. G. continued to contribute to her financial support and the spousal relationship continued after the separation. I am not persuaded that it establishes either point. I find Ms. W. continued to use that telephone number until May 1999, approximately five years after Mr. G.'s death.⁷ She offered no explanation for not filing a telephone bill within the 1993-1994 time frame. The bill also does not establish that Mr. G. paid the bill during 1993 and 1994. Although Ms. W. continues to use that telephone number, there was no evidence that the telephone bill continued to be paid from Mr. G.'s estate following his death.

Ms. W. testified that she received a telephone call from the police following Mr. G.'s death. There is a gap in the evidence as to how this contact came about. She made the funeral arrangements, arranged to have his body shipped back to Poland for burial, and for a funeral mass to be said in his name in each of four years following the accident. Ms. W. filed a copy of a letter from Mr. G.'s mother written in July 1994, in which she enclosed photographs of the funeral in Poland, stated that Ms. W. could keep Mr. G.'s remaining possessions, expressed regret that she did not have a chance to get married to her son, and asked Ms. W. to tell her more about herself and her origins.

Ms. W. alleges that she suffered a grief reaction and depression for a period of eight months following Mr. G.'s death. She saw Dr. Ochocinski, her family physician, who prescribed sleeping pills and Prozac. Dr. Ochocinski's report reflects that he saw her once during the eight-month period, in July 1994, and he understood that Mr. G. died in July 1994; not May 1994. I accept that it is not uncommon for a spouse to be depressed following the death of a partner; however, I do not infer from the evidence of depression that she was a spouse.

I have also considered the nature of the relationship from the perspective of the evidence of Mr. G.'s actions. He had a life insurance policy in which his father had been the designated beneficiary. When his father died, in September 1993, Mr. G. changed the beneficiary to his mother. This suggests that Mr. G.'s primary concern was to make provision for his parents in the event of his death; rather than for Ms. W. and or her son. Some evidence as to how Mr. G. regarded the relationship might have been adduced from his friends or co-workers. Similarly, since Mr. G. attended the hospital for treatment of his epilepsy, those records might have indicated whether at the time he completed admission or other forms which became part of the hospital record, he regarded Ms. W. as a friend, spouse or next of kin. I conclude that the evidence adduced of Mr. G.'s actions does not support Ms. W.'s contention of a spousal relationship.

Continuously for one year

Ms. W., her sister and son testified at the hearing. The discrepancies in their testimony as to the timing of Ms. W.'s moves to London, Downsview and Mississauga cause me to question whether Ms. W. and Mr. G. lived together continuously for a period of one year as required by section 1 of the Schedule, or at all.

There are conflicts in the evidence as to the dates on which Ms. W. started and stopped living with Mr. G., and as to other dates on which various events took place. These conflicts exist between the testimony of the witnesses. They also exist between Ms. W.'s testimony, her own Affidavit sworn in 1998, and a statement reduced to writing which she signed in 1997. Ms. W. was cross-examined on the discrepancies in her testimony and the two earlier written documents. She stated that both the 1997 statement and her 1998 Affidavit were full of mistakes. She testified, contrary to the words in her statement, that she had not read it over before signing it, and her English in 1997 was not that good. Even if I accept this explanation for the discrepancies between her signed statement and her testimony, I am not persuaded by her similar explanation for the discrepancies in her Affidavit, drawn up by her own lawyer, which she testified had been translated to her before she signed it. Even if I consider only Ms. W.'s testimony, as indicated earlier, I find the explanations she offered for maintaining separate residences over a three-year period make no sense.

Ms. W. testified that she, Mr. G., and her son began living together in Downsview in September 1989 and moved to Mississauga in March 1991. Ms. W. testified that her son was born in November 1973. Both Ms. W. and her son testified that S. would have been 16 at the time the move to Mississauga was discussed. If the move took place in March, as Ms. W. testified it had, then her son would have been sixteen years old only in March of 1990. On that basis, Ms. W. and Mr. G. would have therefore lived together only for a period of six months.

Ms. W.'s sister testified that Ms. W.'s son would have been 14 or 15 at the time of the move to Mississauga. According to Ms. W. they were still refugees in Italy when her son was 14. If Ms. W.'s sister is correct about S.'s age, then Ms. W. and Mr. G. may not have lived together at any point in time. S. also testified that he was sixteen years of age when they moved to London. If that is accurate, then they may not have arrived in Canada until sometime after November 1989. If Ms. W. is correct about the month, they would have emigrated to Canada in February 1990. This evidence is problematic because section 1(c)(i) requires Ms. W. and Mr. G. to have lived together continuously for a period of one year.

The witnesses' confusion as to the dates may be genuine. Reference to documentation may have refreshed their memory, and possibly assisted Ms. W. in discharging her burden of proof with respect to this requirement.

In my view, such documentation could have readily been obtained, at little cost, to establish the various events which are alleged to have taken place. For example, Ms. W. might have established her addresses at different points in time from Family Benefits records; English as a second language school records; her son's school records in London, North York, and Peel; a copy of a lease or other confirmation from the landlords, telephone records; records from various utilities. Her son's school records would likely also confirm any truancy problem at the relevant time. Ms. W.'s certificate of landing would establish the date of her arrival in Canada and clarify whether her sister was mistaken when she testified that S. was 14 or 15 years of age when he was truant and shoplifted. Mr. G.'s addresses could have been established through driver licence records or his employer.

Conduct

Under the family law cases, Ms. W. and Mr. G.'s attitude and conduct towards S. is relevant in determining whether there was a conjugal relationship at some point in 1993 and 1994. It is also relevant in determining whether Ms. W. and Mr. G. displayed a settled intention to treat S. as a child of their family under section 1(c)(ii).

Ms. W. testified that her son, S. was born in November 1973. She had custody of S. She is divorced from his father, who continues to reside in Poland. Mr. W. and S. maintain their relationship as father and son. Mr. W. does not have a phone; however, S. writes to his father and travels to Poland every four years to visit him. The fact of this relationship, however, in my view does not mean that Mr. G. and Ms. W. could not have demonstrated a settled intention to treat S. as a child of their family as required by subparagraph 1(c)ii of the Schedule.

There is tremendous variation within families of parental roles, and parental roles change depending on the age and stage of the child. S. was about 13 years old when he and his mother met Mr. G. in Italy. Ms. W. testified Mr. G. allowed her and her son to sleep in his bed in the refugee camp while he was away at work. S. testified that while in Italy he visited various towns with his mother and Mr. G., attended an amusement park, and went to movies with them.

Both Ms. W. and her son testified that while they lived together in Downsview with Mr. G., he and S. went fishing together once or twice a month. Mr. G. bought him a VCR, a Daiwa fishing rod, jeans, shirts and provided him with $20 a week in spending money. Mr. G. was also generous with his time: he helped S. with his math, and discussed S.'s problems with girlfriends. S. deposed that Mr. G. helped him repair his first car and treated him like a son. Ms. W. testified that both she and Mr. G. were upset and depressed when S. was truant and caught shoplifting. They both discussed the solution to the problem with her sister and her nephew. In my view, such evidence is as consistent with interest in and kindness to S., as it is with taking on a parental role towards a teenager.

In my view, the following do not support the Applicant's position that Mr. G. had a settled intention to treat S. as a child of the family: S. testified that at the time he and his mother lived at the flat on Islington Avenue, he regarded Mr. G. as a friend. He was not asked how, if at all, his perception changed over time. S. would have been just shy of sixteen in September 1989; Mr. G. would have been approximately 11 years older than S., and it would be unusual for a parental relationship to exist with such an age gap. Like his mother, S. called Mr. G. by nickname not "Dad." Mr. G. did not adopt him. There is no suggestion that Mr. G. played any disciplinary role in relation to S.'s truancy, or shoplifting, or at all while they lived together. Ms. W. testified that in 1993 she travelled to Poland alone and spent two weeks there; S. stayed by himself in the apartment. By then he was about twenty years of age. Nevertheless, only two years earlier his behaviour in school and the community had been considered a serious problem. Had Mr. G. considered S. a child of the family, I find it likely that he would have stayed with him for at least a portion of the time his mother was away. As noted earlier, in 1993, Mr. G. changed the designated beneficiary of his life insurance policy to his mother, suggesting that his primary concern at that time was to make financial provision in the event of his death for his parents, rather than for S.

On balance, I am not persuaded that the evidence supports Ms. W.'s position that they were in a conjugal relationship at some point between 1993 and 1994, or that there was a settled intention to treat S. as a child of their family during that period. I am not persuaded that the solution Ms. W. and Mr. G. found to S.'s truancy and shoplifting was consistent with an ongoing conjugal relationship or with treating him as a child of their family. While I accept that Ms. W. has suffered an emotional loss as a result of Mr. G.'s untimely death in May 1994, such loss in not compensable under the Schedule.

For these reasons, I conclude that Ms. W. has not established on a balance of probabilities that at some point between May 1993 and May 1994, she and Mr. G. lived together in a conjugal relationship. I also conclude that she has failed to establish on a balance of probabilities that such a relationship was continuous for at least one year, or that she and Mr. G. demonstrated a settled intention to treat S., Ms. W.'s son, as a child of their family.

Expenses:

If the parties are unable to resolve the question of expenses, that issue may now be addressed.

November 7, 2000

Suesan Alves Arbitrator

Date