LICENCE APPEAL TRIBUNAL
Safety, Licensing Appeals and Standards Tribunals Ontario
Tribunal File Number: 16-000201/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
D. S. Applicant
and
Economical Mutual Insurance Company Respondent
DECISION
Panel: Nicole Treksler, Member Observer: Anita John, Member
Appearances: Applicant: D. S. Counsel for the Applicant: Nadim Barsoum, Representative of the Insurance Company: Jody Gleason, Counsel for the Respondent: Marc E. Smith and Michelle Pacan Interpreter: Ms. Francisca Stenographer: Genevieve Klassen
Held by Teleconference: September 7, 2016
I. Introduction:
The Applicant, D. S., was injured in an automobile accident on March 13, 2012, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
The Applicant sustained a catastrophic impairment (“CAT”). A CAT designation means that the Applicant can access a broader range of benefits than otherwise available, including caregiver benefits.
The Applicant applied for caregiver benefits for caregiver services for his children. On April 4, 2016, the Respondent denied his application for these benefits.
The Respondent’s position is two-fold:
The Applicant was not the primary caregiver at the time of the accident; and
The Applicant has not shown that he has incurred any reasonable and necessary expenses as a result of the accident in caring for a person in need of care.
II. Issues in dispute:
Is the Applicant entitled to receive weekly caregiver benefits at the rate of $300.00 per week from May 14, 2015 and ongoing?
Is the Applicant entitled to interest for the overdue payment of the benefit?
III. Result:
The Applicant is not entitled to receive weekly caregiver benefits at the rate of $300 per week from May 14, 2015 and ongoing.
The Applicant is not entitled to applicable interest on the benefit.
IV. Analysis:
Is the Applicant the primary caregiver?
The Applicant is married with two young children. Both the Applicant and his wife were providing care to their children. At the time of the accident, he was not working and was looking after his young children and taking care of the home. The Applicant’s wife was working full-time. The main issue in this matter is whether the Applicant or his wife was the primary caregiver at the time of the accident.
To be eligible for caregiving benefits, under section 13(1) of the Schedule, the Applicant has the onus to prove, on a balance of probabilities, that he was the “primary caregiver for the person in need of care and did not receive remuneration for engaging in caregiving activities.”
Further under section 13(2) of the Schedule, the Applicant must prove that he has paid for “reasonable and necessary expenses incurred as result of the accident in caring for a person in need of care.”
The term “primary caregiver” is not defined in the Schedule. The Respondent provided Financial Services Commission of Ontario (“FSCO”) Tribunal case law to guide my determination of who is the primary caregiver in this case. Reda v. Wawanesa Mutual Insurance Company (1998) CarswellOnt 280, pg. 3 (Reda) provides the following analysis:
“Where there are a number of caregivers, a determination of who is the primary caregiver may involve consideration of relative amounts of time, energy and efforts spent in caregiving and the significance, importance and relative results of those efforts.”
In a more recent decision, Asghar v. State Farm Mutual Insurance Co. (2009) CarswellOnt 5283, paras. 13-14 (Asghar), the FSCO Tribunal set out that “primary caregiving” must be analyzed and evaluated from a qualitative and quantitative perspective. While I am not bound by FSCO decisions, I find the Reda and Ashgar decisions provide a useful framework for the analysis of the primary caregiver issue.
The qualitative and quantitative approach in Asghar is consistent with the framework in Reda. Both decisions acknowledge that the analysis in not limited to counting the number of hours or tasks to find who spends more time caregiving, but also looks to the relative significance of those duties in terms of importance and effort required.
The Applicant did not offer a method to determine the primary caregiver issue. As such, I will rely on the quantitative and qualitative perspective as defined above.
Applicant’s position
The Applicant’s position is that he was the primary caregiver at the time of accident. He submits that he was at home receiving benefits from Ontario Disability Services Program (ODSP) and taking care of his children while his wife, AD, worked.
The Applicant filed two affidavits (one from the Applicant and the other from AD) in support of his Application that he was the primary caregiver at the time of the accident.
On September 7, 2016, counsel for the Insurer cross-examined the Applicant, but it was brief and it finished early because the Applicant stated that due to the accident, he had memory problems and could not recall many events. The parties agreed that I should attribute more weight to AD’s testimony.
At the time of the accident, his wife was working full-time approximately 40 hours per week. Her normal shifts were Tuesday to Saturday from 11:00 a.m. to 6:00 p.m. On some Saturdays, she would work from 6:00 a.m. to noon, and once a week she would have a shift in the evening (11:00 am. to 9:00 p.m.).
AD testified that because of her health issues, it was the Applicant, with the help of his mother, who were raising the children.
The Applicant had two young children at the time of the accident. The children struggle with serious health, behavioural and disciplinary issues. As such, the Applicant and AD indicated that it was very difficult to raise their children and there were many problems with discipline and routine.
According to the affidavits, the Applicant took on most of the family responsibilities as follows:
Take and pick-up the children from daycare;
Make breakfast for the children;
Wash the dishes;
Dress the children in the morning;
Clean the children’s rooms and the house;
Fold laundry;
Do the grocery shopping; and
Play with the children outdoors.
During cross-examination, AD indicated the following:
Both she and her husband were responsible for disciplining their children.
As their children had problems with discipline and routine, she attended parenting classes while her husband looked after the children.
Both parents prepared the children to go to daycare.
They would each put one child each to bed.
She took care of the children’s medical needs (i.e. doctor’s appointments)
Before the accident, according to AD, the Applicant was responsible for 75% of the caregiving duties.
Respondent’s position
The Respondent submits that it was AD, and not the Applicant, who was the primary caregiver at the time of the accident. According to the Respondent, the Applicant played only a minor role in raising the children. The Respondent submits that prior to the accident the Applicant suffered from chronic knee pain, was constantly fatigued, and lacked interest, motivation and energy. The Respondent claims the Applicant consumed a significant amount of alcohol and cannabis throughout the day. The Respondent asserts that the Applicant was not in position to provide adequate care to his children as result of his physical and psychological medical conditions.
The Respondent submits that the Applicant and AD had problems with discipline and routine with the children, relying on Children’s Aid Society (“CAS”) records. These records show that CAS provided support to the family, mostly on parenting, from April 26, 2010 until July 23, 2015. The Respondent highlights that during this period there were 204 reported interactions between CAS and AD, whereas the Applicant had just over 60 interactions with CAS in the same period.
Throughout AD’s interactions with CAS, she reported that the Applicant was not significantly involved. The Respondent submits that these reports contradict AD’s evidence that the Applicant was the primary caregiver. For example:
Author of document’s translation: April 18, 2011 – Mrs. adds that she believes that she is burned out and does all the housework when she comes home from work. Dad does not make nutritious meals, ravioli in a can, Kraft dinner, etc. and he does not wake up during the night when the children cry or are sick. She says that he wakes up and says that he is tired, does not clean (Respondent’s Hearing Brief TAB 9, page 691)1
Author of document’s translation: June 6, 2011 – She reports that she is thinking of taking a couple’s therapy because dad does take responsibility with respect to his duties as a father. Mrs. does all the discipline, meals, etc. (TAB 9, page 683)2
Author of document’s translation: July 18, 2011 – Mr. says that he is looking forward to starting a program called FOCUS. He says that he realizes that he has not been a good support for the mother and that he has not helped her with the housework and with the children. (TAB 9, page 676)3
During the Applicant’s Examination under Oath (EUO) on January 26, 2016, the Applicant indicated that both he and his wife shared the caregiving duties, approximately 50%. However, his wife washed the children, took them to their medical appointments and attended to their learning disabilities (Tab 6, pages 101-112). The Respondent notes that Applicant’s EUO contradicts AD’s assertion that the Applicant provided most of the caregiving duties.
During the cross-examination, the Respondent asserts that AD provided inconsistent and contradictory testimony. Some of the inconsistencies and contradictions were as follows:
Regarding the discipline of children, AD initially testified that the Applicant was solely responsible for discipline. Once questioned again, she indicated that both parents shared the responsibility. Upon review of documentation, she indicated that she was solely responsible for discipline. For example, the documentary evidence reveals that on April 13 and 15, 2010, the Applicant and AD were interviewed by CAS. They both stated that AD is responsible for the discipline and supervision of the children (Hearing Brief, TAB 9, pp. 410, 41, 421).
AD indicated in her testimony that the Applicant picked up the kids from daycare and cooked dinner, every day. This contradicts the Applicant’s evidence given at the EUO, where he stated that dinner was a shared task and more importantly, he went fishing every day and returned at dinner time. As such, the Applicant did not pick up the children from daycare every day.
In AD’s interviews with CAS, she indicated that the Applicant had very little involvement in the upbringing of the children. During cross-examination, AD indicated that she had said those things to CAS, but that she had exaggerated.
Findings
In review of the evidence before me, I am of the view that AD was the primary caregiver from both a quantitative and qualitative perspective. While her testimony and statements to the Respondent and before me are contradictory, the documentary evidence is consistent. Although the Applicant states that he looked after the children and cleaned the home, the evidence from CAS and the Applicant’s EUO show that AD spent more time on caregiving activities:
AD was mostly responsible for the children each morning and driving them to daycare;
AD was responsible for all the medical appointments for her children;
AD was responsible for helping the children with their behaviour problems. AD was in contact with CAS on 204 different occasions. She also confirmed in her testimony that she took parenting courses to assist with raising the children; and
AD was responsible for bathing the children.
As such, from a quantitative perspective, AD performed more caregiving tasks than the Applicant.
Even if the Applicant had been doing all of the caregiving tasks as outlined in his affidavit, from a qualitative perspective, the caregiving tasks that AD provided to her children required more effort and energy and were significant in the children’s development. The Applicant’s children have serious behavioural and discipline issues and it was AD who sought help from CAS to develop routine and discipline in her children’s lives, took them to the medical appointments, and provided structure. I have assigned more weight to the tasks that AD performed with respect to routine, discipline and the children’s development.
The Respondent placed a lot of emphasis on the Applicant’s alleged substance abuse problem and temperament. I am not persuaded that this line of reasoning is relevant in determining whether the Applicant was the primary caregiver. The Applicant’s alleged substance abuse problem and temperament did not factor into my analysis of his contributions to childrearing.
While the Applicant and AD testify that he was active in the care of his children, the CAS report and EUO paint a clear picture that he was not, with both the Applicant and AD admitting that he was not supporting her in the childrearing activities and that AD did most of the work caring for the children.
The documentary evidence is clear that the Applicant was not the primary caregiver of his two children at the time of the accident. While I acknowledge the Applicant’s contributions to the caregiving duties, his wife, AD, from a qualitative and quantitative perspective, was the primary caregiver at the time of the accident.
Did the Applicant incur “reasonable and necessary” expenses in caring for his children?
- Given that I found that the Applicant was not the primary caregiver, it is not necessary to determine whether he incurred reasonable and necessary expenses in caring for his children.
V. Decision:
The Applicant is not entitled to receive weekly caregiver benefits at the rate of $300 per week from May 14, 2015 and ongoing.
I find that the Applicant was not entitled to the benefit. As such, he is not entitled to applicable interest on the benefit.
Released: November 2, 2016
Nicole Treksler, Adjudicator
Footnotes
- « Madame ajoute qu’ell croit elle même être en “burnout” et qu’elle fait tout la maison lorsqu’elle revient de travailler. Papa ne fait pas souper très nutritif, ravioli en boîte de conserve, kraft dinner, ect… et ne se lève pas la nuit quand les enfants pleurent ou sont malades. Elle dit qu’il se reéveille et dit qu’il est fatiguée, ne fait pas ménage. »
- « Elle rapporte aussi qu’elle pense à suivre une thérapie de couple puisque le père ne pend pas ses responsabilités face à ses devoirs de père. Madame fait toute la discipline, les repas ect…. »
- « M. dit avoir hate de commencer FOCUS. IL dit qu’il réalise qu’il n’était pas un bon soutien pour la mère et qu’il ne l’aidait pas à la maison et avec les enfants.»