Neutral Citation: 2002 ONFSCDRS 157
FSCO A01-000132
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
NATALIYA BELOUS, GANNA BELOUS and OLGA BELOUS
Applicants
and
SCOTTISH & YORK INSURANCE COMPANY LIMITED
Insurer
REASONS FOR DECISION
Before:
William J. Renahan
Heard:
August 12, 13, 14 and 15, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Edward Goldentuler for Mrs. Belous
Catherine Ann Korte for Scottish & York Insurance Company Limited
Issues:
Sergiy Belous injured his foot in a motor vehicle accident on July 20, 2000. On August 29, 2000, his daughter, Ganna, and a friend found him dead in an apartment. He was 42 years old. His spouse, Nataliya, applied for statutory accident death and funeral benefits from Scottish & York Insurance Company Limited ("Scottish & York"), payable under sections 25 and 26 of the Schedule.1 His daughters, Ganna and Olga, applied for death benefits under section 25 on the grounds that they were dependants of Mr. Belous at the time of his death.
The Applicants claim that Mr. Belous fell in the apartment because of the injury to his foot and that he died from injuries sustained in that fall. Scottish & York refused to pay on the grounds that Mr. Belous did not die "as a result of an accident" as required by sections 25 and 26 of the Schedule. Scottish & York also argued that even if I found that Mr. Belous did die "as a result of an accident", Ganna and Olga were not entitled to death benefits because they were not "dependants" within the meaning of subsection 2(6) of the Schedule. The parties were unable to resolve their disputes through mediation, and Mrs. Belous and her daughters applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
At the opening of the hearing, Mr. Goldentuler advised me that Nataliya Belous was not a spouse of Sergiy Belous at the time of his death and that their daughters were entitled to share any death benefit that was otherwise payable to a spouse. Mrs. Belous filed an affidavit in support of her petition for divorce which was sworn on July 1, 2000. I did not receive any evidence that Mrs. Belous was divorced at the time of the death of Mr. Belous, two months later. Such evidence is relevant to not only Mrs. Belous' entitlement, but also to the issue of whether Ganna and Olga were "dependants."
I proceed on the basis that the divorce was not finalized and that Mrs. Belous was the spouse of Mr. Belous. However, since the parties did not address the issue, I leave it open for either party to apply to me within 30 days of the date of this decision for an order to reopen the hearing on the issue of whether Mrs. Belous was the spouse or former spouse of Mr. Belous.
The issues in this hearing are:
Is Scottish & York liable to pay statutory accident death and funeral benefits arising on the death of Sergiy Belous, pursuant to sections 25 and 26 of the Schedule?
Was Ganna Belous a "dependant" within the meaning of subsection 2(6) of the Schedule?
Was Olga Belous a "dependant" within the meaning of subsection 2(6) of the Schedule?
Result:
Scottish & York is not liable to pay statutory accident death and funeral benefits arising out of the death of Sergiy Belous.
Belous was a "dependant" within the meaning of subsection 2(6) of the Schedule.
Belous was a "dependant" within the meaning of subsection 2(6) of the Schedule.
Death benefits are payable under section 25 of the Schedule. Generally, a spouse is entitled to $25,000 and each "dependant" is entitled to $10,000 if the insured died "as a result of an accident." If no one is entitled to the spousal benefit, the dependants share the $25,000 benefit. Under section 26, a maximum of $6,000 is payable for funeral expenses incurred if the insured died "as a result of an accident."
In subsection 2(1) of the Schedule, "accident" is defined in part as "an incident in which the use or operation of an automobile directly causes an impairment." The incident of July 20, 2000 was an "accident." I heard no argument that the death which was discovered on August 29, 2000 was an "accident." The question is whether the death was "as a result of the accident of July 20, 2000.
The question of whether someone injured in a motor vehicle accident is eligible for benefits in respect of different injuries which occur later, was considered in Correia and TTC Insurance Company Limited.2 On September 3, 1998, Ms. Correia suffered soft tissue injuries in a motor vehicle accident. After five physiotherapy treatments she felt well enough to return to work. The arbitrator concluded that the original injuries had substantially resolved and were not disabling. Ms. Correia's therapist was unwilling to clear Ms. Correia for work without a functional capacities evaluation. The arbitrator found that during the course of the evaluation on September 28, 1998, Ms. Correia suffered soft tissue injuries which were different from her original injuries and that these new injuries disabled her from work. The test for entitlement to income replacement benefits required the insured to establish that her inability to work was "as a result of . . . the accident."
The arbitrator found that Ms. Correia's treatment related injuries and inability to return to work were a result of the accident. The arbitrator held that, once it is established that an accident occurred, coverage for the consequences of those injuries, including new injuries, is governed by the broader causal language in section 4.1, the section which sets out the criteria for entitlement. She found no intervening cause for Ms. Correia's inability to return to work. She concluded:
...the extent of coverage for the consequences of an accident is governed by the "as a result of" test, which requires proof that the accident materially or significantly contributed to the disability or impairment that gives rise to the claim for benefits.
On appeal3, the Director's Delegate concluded that the arbitrator did not err as a matter of law.
The entitlement criteria in sections 25 and 26 use the words "as a result of an accident" which is the same broader causal language used in section 4.1. I therefore apply the same test approved in Correia. Did the soft tissue injury Mr. Belous suffered to his foot on July 20, 2000 significantly or materially contribute to his death which was discovered on August 29, 2000?
Witnesses:
Mrs. Belous, Ganna and Olga testified. The following professional witnesses also testified.
Constable David Wales is the policeman who investigated the motor vehicle accident.
Dr. David Saslove is a full-time emergency room doctor. He works at York Central Hospital in Richmond Hill and St. Michael's Hospital in Toronto. He treated Mr. Belous after the motor vehicle accident.
Detective Constable Martin Doyle is a lead forensic identification officer. He attended at the apartment because the death was a possible homicide. He made notes on the condition of the apartment and body and recorded the times people entered and left the apartment. He investigates approximately 20 deaths a year. Most are due to accidental falls. Five or six are homicides.
Dr. David Giddens is a part-time coroner. He attended at the apartment, pronounced death and ordered an autopsy. In his opinion, Sergiy Belous bled to death, secondary to chronic alcoholism. Dr. Giddens conducts a family practice and has a certificate in emergency medicine. He has been an emergency doctor for 27 years. As a coroner, he is on-call nearly every day, including three or four evenings per week and one weekend per month. He investigates approximately 350 deaths a year.
Dr. Charles Lee is the pathologist who performed the autopsy. He testified that the lacerations were not large enough to cause Mr. Belous to bleed to death. From the position of Mr. Belous' head, as shown in the police photographs, Dr. Lee thought that Mr. Belous died from asphyxia, secondary to chronic alcoholism.
Dr. Joel Mayer is a toxicologist and Deputy Director at The Centre of Forensic Sciences. He testified as to the significance of alcohol and codeine found in the blood of Mr. Belous.
EVIDENCE AND ANALYSIS:
Background:
The Belous family immigrated to Canada from the Ukraine in April 1997. Mrs. Belous speaks five languages and has a master's degree in economics. Mr. Belous was a marine mechanic on ships. Mr. Belous worked at a number of jobs in Canada. Ganna testified that her father worked day and night shifts and just slept and went to work. Mrs. Belous testified that Mr. Belous had two or three jobs. His last full-time job was as an assistant mechanic at a truck repair garage.
Ganna was 18 and Olga was 15 when the family arrived in Canada. The two studied English, went to school and eventually found part-time work.
The family arrived with approximately $30,000. From 1997 to 1999, they bought and sold three houses. At the time of Mr. Belous' death, they had purchased a $370,000 house with a $335,000 mortgage. The monthly mortgage payment was $2,179. Mr. and Mrs. Belous had financial difficulties. Mr. Belous made a modest income. His 1999 income tax return revealed total income of $17,765. Mrs. Belous tried to operate her own aesthetician business but lost money and eventually she closed the business.
Mrs. Belous, Ganna and Olga testified that Mr. Belous was depressed. He was highly educated and not happy with his work. He was also depressed because he had difficulty communicating in English. He started drinking heavily. In 1999, Mr. Belous was convicted of three driving offences involving alcohol.
Mrs. Belous could not cope with Mr. Belous' drinking and she decided to separate. On March 17, 2000, she signed a petition for divorce. The parties continued to share the matrimonial home, but not as husband and wife.
On July 6, 2000, Mr. Belous made an assignment under the Bankruptcy Act for the general benefit of creditors. He had credit card debts of $19,000.
The motor vehicle accident occurred on July 20, 2000.
Motor vehicle accident:
The motor vehicle accident occurred just before midnight on July 20, 2000. Mr. Belous walked across five lanes of traffic on Highway 7 into the side of a moving van. The posted speed limit was 70 k.p.h. Constable Wales arrived shortly after the accident and spoke to Mr. Belous as he sat on the curb. He noted signs of impairment by alcohol. He found a half full bottle of liquor in Mr. Belous' gym bag. The ambulance attendant noted that Mr. Belous had not loss consciousness and that he found Mr. Belous sitting on the curb, alert and oriented. He noted that Mr. Belous' most serious injury was to his left foot. It was swollen and tender.
At the hospital, Dr. Saslove recorded that Mr. Belous had not lost consciousness and that he had full recall. According to Dr. Saslove, Mr. Belous' blood/alcohol reading was 54.8 international units. 17 international units is comparable to .80 mg of alcohol in 100 ml of blood. Driving with a blood/alcohol level which exceeds this amount is a criminal offence. Dr. Saslove found that Mr. Belous' main injury was to the left foot. He sutured a one to two cm. laceration between the fourth and fifth toes with four stitches and ordered x-rays of the foot. He detected a fracture of the last phalanx of the smallest toe. He taped the broken toe to the fourth toe for stability. The next day, the radiologist confirmed the diagnosis of the fracture.
Dr. Saslove explained that the swelling was due to injury to the soft tissue and that soft tissue is everything except the bone and includes the nerves, muscle, lymphatic system, tendons and blood vessels. Although the foot was swollen, Dr. Saslove concluded that no tissue was torn because he found that the bruising was insignificant.
Mr. Belous underwent physiotherapy at Integrated Health Recovery. A chiropractor recorded that Mr. Belous was unconscious for an undisclosed amount of time and that he was treated for a shoulder dislocation and head injury. I prefer the evidence of Constable Wales, the ambulance attendant and Dr. Saslove that Mr. Belous did not lose consciousness. Further, no other record suggests a shoulder dislocation.
I find that the most significant injury Mr. Belous sustained in the motor vehicle accident was injury to the soft tissue of the left foot.
After a marital dispute, Mr. Belous went to stay at the apartment of a friend who had left the country for a few weeks. Mrs. Belous testified that Mr. Belous was in the apartment three or four days. When the friend returned, he found Mr. Belous' naked body on the kitchen floor.
The evidence is not clear when Mr. Belous died.
Dr. Giddens pronounced death on August 29, 2000, the day he discovered the body. Dr. Giddens said that Mr. Belous died five to ten days earlier. Dr. Lee said that Mr. Belous had been dead at least one or two days. Mrs. Belous testified that Mr. Belous had been gone three or four days before he was found. Olga said she last saw her father two days before he died.
Trying to reconcile this evidence, I find that Mr. Belous moved to the apartment around August 25, 2000 and died the same day or the next day.
Causative factors in the death of Mr. Belous:
1. Alcohol:
Detective Doyle attended at the apartment. He found the living room and dining room in disarray. Cushions were off the couch and an area rug was bunched up. A lamp and chair were upset. He found three empty liquor bottles and one full bottle on the dining room table. He found five liquor bottles on the floor. He did not know if they were full or empty. He described a great deal of blood staining on the floor and some of the walls.
Dr. Giddens described the position of the body as unnatural. The body was on the floor with the head against a cabinet and extended backwards. The left foot was dislocated and wedged between the cabinet and an appliance. Dr. Giddens said that most of the blood was in the hallway from the bedroom to the kitchen. It extended about two feet up the walls. He estimated that about one to two litres of blood was smeared throughout the apartment. He testified that the body contains about five litres of blood, and depending on the condition of the person, a person would go into shock after losing two litres of blood.
In his autopsy, Dr. Lee noted that the liver was homogeneous, that is, a section from one part was the same as a section from another part. He examined a section the size of a fingernail and noted that each cell contained a vacuole of fat. This condition is known as hepatic steotis, or fatty liver. Although other things may cause a fatty liver, Dr. Lee, Dr. Giddens and Dr. Mayer agreed that the majority of fatty livers are due to chronic alcoholism.
Dr. Lee requisitioned an analysis of the blood and urine of Mr. Belous. The results indicated 128 mg of alcohol in 100 ml of blood and 108 mg of alcohol in 100 ml of urine, traces of codeine and n-propanol. Dr. Mayer testified that n-propanol is found in association with decomposition and purification and indicated that all or part of the alcohol in the blood was the product of micro-organism activity on the glucose in the blood and urine. He testified that it was not possible to determine whether all or part of the alcohol was produced after death. However, he also testified that some organisms consume alcohol and that the amount of alcohol in the blood of Mr. Belous may have been higher than 128 mg per 100 ml at the time of death.
The police told both doctors that Mr. Belous was a chronic alcoholic. Dr. Giddens and Dr. Lee both felt that chronic alcoholism was a factor in Mr. Belous' death.
Based on Mr. Belous' driving record, the testimony of his family, the condition of his liver, the details of the accident of July 20, 2000, the empty liquor bottles in the apartment and the condition of the apartment, I find that alcohol was a factor in the death of Mr. Belous. Dr. Lee speculated that Mr. Belous may have suffered delirium tremens from alcohol withdrawal. However, in view of the evidence of the difficulty Mr. Belous had controlling the use of alcohol and the evidence there were full bottles of liquor in the apartment, I find it more likely that Mr. Belous was impaired by alcohol at the time of death.
Dr. Lee and Dr. Giddens agreed that Mr. Belous' lacerations and bruises were due to repeated falls and I accept this opinion as reasonable.
2. Loss of blood:
Dr. Lee found three lacerations on the back and side of the skull measuring 2 x .5 cm., 2 x 1 cm. and 3 x 1 cm. He testified that although scalp lacerations can bleed a lot, the injuries to the scalp were minor and that it was not possible to bleed to death from those lacerations. Until he saw the police photographs, his opinion on the cause of death was chronic alcoholism. Counsel showed Dr. Lee the police photographs for the first time at the hearing. Dr. Lee testified that the position of Mr. Belous' body, as shown in the photographs, suggested to him that Mr. Belous' head was hyper extended and that he died from asphyxiation. He disagreed with Dr. Giddens about the amount of blood in the apartment. He testified that in his opinion, the police photographs did not reveal more than a cup of blood. He testified that a small quantity of blood can smear a large area and that if there were one to two litres of blood in the apartment, one would see puddles of blood.
Dr. Giddens testified that he has 27 years' experience as an emergency room doctor and that he has seen thousands of lacerations. He testified that head wounds bleed profusely and if pressure or sutures are not applied quickly, it is hard to stop the bleeding. Individuals who have a chronic alcohol problem are often anaemic and have fewer platelets in their blood. Platelets cause coagulation and the lack of platelets in an alcoholic make them bleed more. He speculated that the blood patterns in the apartment suggested that Mr. Belous fell and had trouble getting up. He may have been dazed and confused. He moved aimlessly through the apartment, on his hands and knees smearing blood on the floor and lower walls. As he continued to bleed he became weaker and more confused. Blood stains around the kitchen sink and the lack of blood on the floor around his body suggest that he tried to get up and collapsed in the kitchen and the lack of blood carrying oxygen to the heart stopped it from beating.
Dr. Giddens was at the scene and saw the blood. He has experience with treating head wounds. I have found that Mr. Belous was under the influence of alcohol at the time of death and it is therefore likely that he could not apply pressure to his scalp wounds to stop the bleeding. Dr. Giddens' opinion appears more reasonable than that of Dr. Lee. I find that Mr. Belous was impaired by alcohol, fell, suffered scalp lacerations and bleeding which he could not stop because of his impairment and he bled to death.
3. Foot injury:
Following his accident on Highway 7, Mr. Belous arrived at the York Central Hospital at 1:00 a.m. The nurse's notes indicated that Mr. Belous was able to walk at 8:30 a.m. When Mr. Belous was discharged at 10:00 a.m., Dr. Saslove gave him a note that he should take seven days off work. Dr. Saslove said that he considered the injury minor, and that he is fairly generous about giving time off work. He prescribed an antibiotic and said that emergency department doctors tend to prescribe antibiotics out of caution. He said that fractures heal in four to six weeks and that Mr. Belous might feel discomfort for four to six weeks. He said that he could walk on his heel or use crutches for one or two weeks.
Dr. Lee found little blood around the left ankle dislocation which indicated to him that the ankle was dislocated one to two hours before the time of death. I heard no argument that the ankle was dislocated on July 20, 2000 when Mr. Belous was injured while crossing the highway.
About 30 hours after leaving the hospital, Ganna took Mr. Belous back to the emergency department. Ganna testified that her father's foot was purple and stunk. Mrs. Belous testified that the foot smelt very bad, brownish liquid came out of it and every day it got worse. The emergency department doctor noted that Mr. Belous' chief complaint was significant post injury swelling and pain. He did not detect any abnormalities and advised Mr. Belous to get crutches and follow up with his family doctor. Ganna obtained crutches for her father that day.
Mr. Belous did not have a family doctor. On July 24, 2000, he found a family doctor, Dr. Brodsky, who referred Mr. Belous for another x-ray. That x-ray disclosed the fracture to the distal phalanx of the fifth toe as well as a "tiny fracture of the middle phalanx of the 5th digit." The radiologist also suspected a tiny undisplaced fracture of the 2nd metatarsal. The metatarsals are the long bones in the foot. Dr. Saslove explained that if the metatarsal was fractured, it was a minor injury which did not require casting for healing.
I could not read Dr. Brodsky's notes. Dr. Giddens said that Dr. Brodsky noted that Mr. Belous' foot was run over by a car, that he had gross edema, was totally bruised and walked with crutches. Dr. Giddens said that Dr. Brodsky prescribed an antibiotic because he was worried about infection. Mr. Belous saw Dr. Brodsky on only this one occasion.
Mr. Belous attended at Integrated Health Recovery, a rehabilitation clinic, nine times between July 25 and August 11, 2000. In an initial assessment report to the Insurer dated July 25, 2000, a chiropractor lists nine complaints. The first complaint is "severe swelling of left calf." The chiropractor noted that the left ankle was enlarged and painful. Among other things, the chiropractor diagnosed "sprain/strain injury to the left ankle" and "possible fracture of the left ankle region." Dr. Giddens read the notes of the physiotherapist who treated Mr. Belous. On July 28, 2000, the physiotherapist noted left leg redness and inflammation and on August 8 "left foot feels a little better and lot less swollen."
On August 10, 2000 an "Activities of Normal Life" form was faxed to the Insurer. Mr. Belous ticked off a number of boxes which indicated that he could partially do most activities and that he needed help climbing stairs.
Ganna testified that her father walked with crutches and she did not see him bear weight on his left leg up to his death.
Mrs. Belous said that Mr. Belous could not walk and that he used crutches all the time. Liquid came from his feet and every day he got worse. She testified that he had gangrene in his legs and that he died from a broken neck.
Olga thought that, her father always used crutches after the fall.
Neither Dr. Giddens or Detective Doyle saw crutches in the apartment. Detective Doyle said he was in the apartment four hours and would have seen crutches if they were there.
Dr. Lee said that he did not find any infection in the foot and that there was not much decomposition of the foot which would have obscured infection. Dr. Giddens said that it is difficult to observe gangrene in a decomposed body.
I find that Ganna and Mrs. Belous exaggerated the symptoms of infection they saw. Mr. Belous attended at the emergency department of York Central Hospital, Dr. Brodsky's office and a physiotherapy clinic. I do not see in those records the infection Ganna and Mrs. Belous refer to.
As well, I find that Mr. Belous was not using crutches when he left for the apartment around August 25, 2000. If he was, the crutches would have been in the apartment. I therefore do not accept the evidence of Mrs. Belous, Ganna and Olga that he used crutches all the time.
The only reliable factual evidence that Mr. Belous was having difficulty with his foot around the time of his death is the trace amount of codeine found in his blood. Dr. Mayer said that Mr. Belous probably had taken codeine orally 36 to 48 hours before his death. Since Dr. Saslove and Dr. Brodsky prescribed Tylenol 3 for pain, I find it likely that Mr. Belous took Tylenol 3 for pain in his foot a day or two before he died. I have no other reliable factual evidence that Mr. Belous had difficulty with his foot around August 25, 2000, the date he likely died. The last mention of his foot in the records is August 8 , 2000 when the physiotherapist at the rehabilitation clinic noted "left foot feels a little better and lot less swollen."
I also heard opinion evidence as to whether the type of injuries Mr. Belous suffered to his foot would have contributed to a fall.
Dr. Giddens said that Mr. Belous probably suffered damage to the ligaments that support the foot and ankle and that this damage could affect his ability to sense where his foot was on the floor. Dr. Giddens said that most bones heal in four to six weeks and that pain from a strain could last much longer. He said that when you sprain the ankle, you can go over on it two to three months later. He testified that it was "potential" and "a possibility" that the injuries Mr. Belous suffered in the motor vehicle accident played a role in his fall and death.
Dr. Saslove thought that Mr. Belous' discomfort would die down in a week or two but that he would have some discomfort in his foot for four to six weeks.
Dr. Lee did not know that Mr. Belous was involved in a motor vehicle accident on July 20, 2000. However, when asked, he said that the motor vehicle accident did not contribute to Mr. Belous' death. He based his opinion on the note of August 8th, that the foot was getting better, and on a lack of evidence of infection, complications or difficulty walking.
The only factual evidence that Mr. Belous had any difficulty with his foot at the time of death is evidence that he probably consumed a Tylenol 3 for pain in the day or two before his death. Otherwise, the evidence is that his foot was not causing him difficulty. He was not using his crutches and more than two weeks before his death he told his physiotherapist that his foot felt better and the physiotherapist noted that it was "a lot less swollen." Further, when Mr. Belous was concerned about his foot he sought treatment. He went to the emergency department the day after the accident and to a family doctor three days after the accident. I find it likely that he would have returned to the hospital or Dr. Brodsky if his foot continued to bother him. Mr. Belous did not seek further treatment for his foot after July 24, 2000. Further, the last mention of his foot in the medical records is in the physiotherapist's notes of August 8, 2000, which is more than two weeks before his death. Lastly, the expert opinion evidence does not support a conclusion that Mr. Belous' foot injury significantly or materially contributed to his fall and death.
I find that Mr. Belous fell because he was impaired by alcohol. He cut his head. He bled to death from his lacerations because his impairment prevented him from stopping the bleeding or calling for help. His injured foot did not materially or significantly contribute to his fall or his death.
Accordingly, he did not die as a result of a motor vehicle accident and his spouse and children are not entitled to death or funeral benefits pursuant to sections 25 and 26 of the Schedule.
Dependency:
A death benefit is only payable to the spouse and each of the insured person's dependants. Since I have found that Mr. Belous did not die as a result of a motor vehicle accident, it is not necessary for me to determine whether Ganna and Olga were "dependants" of Mr. Belous. However, since I heard evidence on the issue, I will determine whether they are "dependants."
"Dependant" is defined in subsection 2(6) as:
. . . a person is a dependant of another person if the person is principally dependent for financial support or care on the other person or the other person's spouse.
The Director of Arbitrations4 and the Ontario Court of Appeal5 have considered this and a similar definition. In the words of Mr. Justice O'Brien:
. . . it would be preferable to approach the question of this interpretation on the basis the legislation was of a remedial nature, intended to broaden insurance coverage to include members of family units as persons insured under the policy.
. . . the legislative intent should be kept in mind and, in addition, matters such as the amount and duration of the financial or other dependency, the financial or other needs of the claimant, [and] the ability of the claimant to be self-supporting. . .
Ganna and Olga claimed that they were principally dependant on Mr. Belous for financial support. At the time of death, Ganna and Olga were either principally dependent for financial support on themselves or others. If they were financially dependent for financial support on others, and those others were Mr. or Mrs. Belous, they satisfy the definition of "dependant."
At the time of their father's death, Ganna was 21 years old and Olga was 17. Both girls lived at home and worked part-time. Mrs. Belous operated a business at a loss and had closed the business at the time of Mr. Belous' death. Although she had no income, she contributed to the family finances by purchasing goods on credit cards. In March 2001, about seven months after her husband's death, she made an assignment in bankruptcy with debts of about $45,000.
The trustee in bankruptcy filed tax returns for Mr. Belous. For 1999 he declared $10,865 in employment income and $6,900 in net business income for total income of $17,765. The family's major expense was monthly mortgage payments of $2,179 on a $335,000 mortgage.
Ganna:
I heard conflicting evidence on how much Ganna contributed to her own support and the support of her family.
Shortly after arriving in Canada, Ganna left the family home and tried to live on her own. After three or four months she found she could not afford it and moved back with her parents. She took two phases of a real estate course and worked part time as a waitress and store clerk. In 1999 she earned $15,400. She saved most of her money to buy a motor vehicle and at the beginning of 2000 she bought a new Hyundai motor vehicle at a cost of $16,000. She testified that she only helped with groceries and utilities for a few months when Mr. Belous moved out. Otherwise, she did not pay any part of the mortgage, realty taxes or grocery expenses.
However, in her 1999 tax return, at a time when she was living with her parents, Ganna declared that she paid three months rent in the amount of $1,400. She explained that every family does it to reduce income tax liability. In her 2000 income tax return she declared that she paid $5,960 in property taxes. The title to the family home shows that Ganna had a one per cent interest in the house. Ganna explained that she was on title so that her income would help her parents qualify for a mortgage. Ganna testified that before Mr. Belous applied for bankruptcy, "we" removed him from the title to the house because "it's all we had." Ganna could not remember whether she put the expense of the funeral on her credit card or her mother paid for it.
The largest component of financial support is shelter and food. I heard evidence that Ganna assisted with the payment of shelter and family expenses and had an interest in the family home. However, I find that most of her money went into the purchase and operation of a motor vehicle and that she did not have enough left over to provide for her own shelter and food. Ganna moved out of the family home shortly upon arrival in Canada when she was 18 years old and moved back after three or four months. I find that Ganna has an independent spirit and that if she could have afforded to live on her own, she would have. I find that she was principally dependent upon her parents for the provision of shelter and food. Since these items made up the largest component of financial support, I find that Ganna was principally dependent on her parents for financial support at the time of the death of her father.
Olga:
Olga was in high school when her father died. She also worked part time at two jobs. In 1999 she declared income of $6,000 and in 2000 she declared income of $6,700. She had insufficient income to support herself. I find that Olga was principally dependent on her parents for financial support and that she satisfies the definition of "dependant."
EXPENSES:
The parties asked that I not deal with expenses of the arbitration proceeding. If they cannot agree on the issue of entitlement, they may make written submissions to me on the issue of entitlement to expenses within 35 days of the date of this decision.
October 2, 2002
William J. Renahan
Arbitrator
Date
Neutral Citation: 2002 ONFSCDRS 157
FSCO A01-000132
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
NATALIYA BELOUS, GANNA BELOUS and OLGA BELOUS
Applicants
and
SCOTTISH & YORK INSURANCE COMPANY LIMITED
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- The application for arbitration is dismissed.
October 2, 2002
William J. Renahan
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.
- Correia and TTC Insurance Company Limited, (FSCO A00-000045, October 27, 2000)
- Correia and TTC Insurance Company Limited, (FSCO P00-00061, July 16, 2001)
- Cattrysse and The Westminster Mutual Fire Insurance Company, (OIC-001618, June 21, 1993) aff'd (P-001618 and OIC-001789, April 20, 1998).
- Miller v. Safeco Insurance Co. of America, 48 O.R. (Ed) 451, aff'd 1985 CanLII 2022 (ON CA), 50 O.R. (2d) 797 (C.A.).