[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Aviva v. Belair, 2022 ONSC 2887
COURT FILE NO.: 970/21
DATE: 20220513
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AVIVA INSURANCE COMPANY OF CANADA
Applicant
– and –
BELAIR INSURANCE COMPANY INC.
Respondent
Jessica L.J. Rogers, for the Applicant
Douglas A. Wallace, for the Respondent
HEARD: February 9, 2022
TRANQUILLI J.
Introduction
[1] A car struck 13-year-old Isabelle as she ran across a street to catch a bus on January 16, 2019. She was catastrophically injured.
[2] She was entitled to receive Statutory Accident Benefits pursuant to the Insurance Act, R.S.O, 1990, c. I.8, on account of her injuries. The child’s parents were separated at the time of her accident. Isabelle’s mother was insured with the applicant Aviva Insurance Company of Canada. Her father was insured with the respondent Belair Insurance Company Inc.
[3] The question became which parent’s insurance policy was responsible to pay the benefits pursuant to the priority regime under s. 268(2) of the Insurance Act.
[4] At issue was whether Isabelle was principally dependent for financial support or care on either of her mother or her father at the time of the accident, such that one these insurers would stand in priority to the other to pay accident benefits.
[5] The insurers submitted the dispute to private arbitration pursuant to the Insurance Act. The material issue was the appropriate time frame for the dependency analysis. The arbitrator held Isabelle was principally dependent upon her mother for financial support and care.
[6] Aviva appeals the arbitration award to this court pursuant to the Insurance Act and the Arbitration Act, 1991, S.O. 1991, c. 17. The arbitration agreement provides for a right of appeal to a judge of the Superior Court on questions of law or mixed fact and law without leave.
Background
[7] Isabelle’s life was already in significant turmoil at the time of the accident. The salient undisputed facts are as follows.
[8] Isabelle lived almost exclusively with her mother in the six years between her parents’ acrimonious separation and the accident. No formal parenting order was in place. Her mother was solely responsible for Isabelle’s financial support while the child lived in her care. The child had little regular contact with her father. In the approximate two years before the accident, the child demonstrated escalating oppositional, high-risk behaviours and emotional issues that led to ongoing child welfare involvement. The mother sought help from CAS and medical professionals and she was noted to be “overwhelmed”.
[9] In September 2018, about four months before the accident, a pediatrician advised the mother of his impression the child had a complex mental illness and was running out of time for intensive intervention; otherwise, she was on a trajectory where help would include the “justice system.” CAS advised intervention should include that the child not live with her mother. There was ongoing debate as to whether the child would need to be placed in a group/foster home or if living with her father was the next option. The mother agreed Isabelle could not continue to live with her, but the father was noncommittal about taking the child into his care.
[10] In December 2018, about five weeks before the accident, Isabelle was hospitalized for threats of self-harm following a violent incident in her mother’s home. On discharge, the mother, with CAS support and father’s consent, required Isabelle to go and live with her father under his authority. The mother agreed she would not allow the child to return to her home. Her expectation was that if the daughter’s placement with her father failed, he would then make the decision for their daughter to be placed in a group/foster home for intervention. The child immediately ran away from her father upon discharge from the hospital. The mother spent the night searching for her daughter. She found Isabelle the next morning and took her daughter to the father’s house.
[11] The father and daughter quickly fell into conflict. Mother encouraged father and daughter to try to make the arrangement work. I will not repeat those communications. At best, the father’s text messages indicate he was unreceptive to and dismissive of mother’s efforts. The father told CAS he did not think he could manage his daughter any longer, although he remained ambivalent about placing her in a group home.
[12] Isabelle ultimately left her father’s home after a dispute (whether he locked her out because of a breach of rules, or they simply argued is unclear). In any event, she went to stay with a friend about one week before the collision. There is no dispute the father texted the friend’s father he could “keep her” or “throw her out on the street”. Isabelle stayed in contact with her mother throughout this time. The mother entreated the child to return to her father’s house so they could work out a plan. The child pleaded to come back to live with her mother and threatened she would run away if she were forced to return to her father’s home. She “hated” him and was “afraid” of his anger. In the days leading up to the accident, the father did not respond to CAS offers for support or to its requests for a meeting with the agency and child to clarify a plan for her care.
The Arbitration
[13] The insurers remitted this question to private arbitration pursuant to the Insurance Act and Ontario Regulation 283/95. Belair advocated for a dependency analysis focused on a 12-month time frame, whereas Aviva contended the 5.5 weeks before the accident was the correct approach.
[14] The hearing proceeded on a written record including an agreed statement of facts, transcripts of examinations under oath and a joint document brief containing medical records, CAS records and text messages from each parent and the child.
[15] Aviva submitted the 5.5 weeks immediately preceding the accident was the correct time frame for the dependency analysis. This represented the “new normal” in the child’s dependency and an overall change in her relationship with her parents, where her father was responsible for her protection and care needs as a vulnerable child.
Belair submitted the 12-month time frame was consistent with the nature of the child’s dependency relationship with her parents. The change in residency 5.5 weeks before the accident did not reflect a change in the child’s dependency, particularly as she was not living with either parent by the time of the accident.
The Arbitration Award
[16] The arbitrator determined the residential change 5.5 weeks before the accident did not establish a “new normal” in the child’s dependency relationship with her parents. This short time did not alter the overall living pattern. The appropriate time frame for the dependency analysis was the 12-month period before the accident. Isabelle was principally dependent for both financial support and care on her mother during that period. The arbitrator also concluded that Isabelle remained principally dependent on her mother for care even if the shorter time frame were considered.
[17] The arbitrator’s analysis and reasons are detailed and lengthy. The following passage summarizes his rationale:
The medical records show … that the claimant suffered from a “complex mental illness” and that her “trajectory” remained unchanged even after she went to live with her father in early December 2018. Her defiant and violent behaviours remained unchanged. Her truancy remained unchanged. She continued to run away and often returned only after being apprehended by police. In the few days leading up to the accident, she was essentially homeless. The claimant was not living with either parent. Her stay with her father had been short-lived and in my view, must be viewed as a transient change over a short period of time and not reflecting a change in the overall relationship between the claimant and her parents. It is an important factor in the analysis that the claimant was not living with her father at the time of the accident, but was living with a friend, hardly indicative of a “new normal” with her father. Her residence was clearly in a state of flux.
[18] For similar reasons the arbitrator concluded that in any event, Isabelle remained principally dependent upon her mother for care in either the 12-month or 5.5-week time frame. She had a volatile relationship with her mother, but they had a bond that continued after the child left mother’s home. Mother continued to offer emotional support, guidance and encouragement to her daughter. Mother was in regular contact with Isabelle and was actively involved with both CAS and the father in trying to support the child and to encourage her to return to her father’s home. In contrast, the arbitrator was not satisfied the father possessed either the skills or ability to care for Isabelle. The CAS file and contemporaneous text messages showed he had little by way of an emotional relationship with the child and that she was afraid of him. He was unable to manage her, yet his ambivalence effectively prevented CAS from taking the necessary steps to determine whether to place the child in care.
The Appeal
[19] The parties agree an appellate standard of review applies to this statutory appeal: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. The standard of review on a question of law is correctness. The standard of review on a question of mixed fact and law is palpable and overriding error unless there is an extricable error of law, which would then be subject to the standard of correctness: Vavilov, supra at para. 37.
[20] The parties disagree on whether the arbitrator’s decision reveals such reviewable errors.
[21] Aviva submits the arbitrator’s conclusion as to the appropriate time frame for the dependency analysis turned on extricable errors of law which are reviewable on the correctness standard or arose from a palpable and overriding error. The arbitrator improperly speculated about the future of Isabelle’s living arrangement with her father and improperly required an element of permanence to the new arrangement. Aviva further submits the arbitrator erred on either a question of law or a question of mixed fact and law in his care analysis through either failing to give proper weight to the child’s specific care needs for protection and structure or in improperly applying the legal test for care dependency to the facts.
[22] Aviva further submits that even if Isabelle was principally dependent upon her mother for care in the 5.5-week timeframe, that this would then mean that the child was dependent upon her father for financial support and her mother for care. This this would then require the court to determine whether the definition of “dependency” under the S”ABS is determined on a disjunctive or conjunctive analysis. Aviva submits this means Belair would be the priority insurer on either analysis. On a “disjunctive” approach, the claimant would have a choice of insurers pursuant to s. 268(5) and (5.1). Since her counsel submitted her application for benefits to Belair, this means she chose Belair. On a “conjunctive” approach, the court would be required to the claimant’s financial and care needs in combination to determine principal dependency. During those 5.5 weeks, the father provided all of Isabelle’s financial support and at least some care, such that his overall contributions outweighed the mother’s contributions.
[23] Belair submits the arbitrator’s findings were overwhelmingly supported by the evidentiary record. The arbitrator made no extricable error of law in applying the legal principles to the facts; he was alive to the guiding principles for the determination of the appropriate time frame. The arbitrator’s reasons show he did not incorrectly speculate as to the future of the father’s relationship with Isabelle or import a permanency requirement.
[24] The arbitrator similarly made no reviewable error in his assessment of the dependency for care analysis on the shorter 5.5-week time frame. Aviva’s position invites this court to reweigh the evidence and reverse findings of fact, which cannot be done absent a palpable and overriding error.
[25] Belair submits it is therefore not necessary for this court to determine whether the definition of dependency should be interpreted disjunctively or conjunctively. If the court were to find the 5.5 weeks is the appropriate time frame, it should remit the case to the arbitrator, who as the trier of fact is best suited to weigh the evidence and determine dependency.
Issues
[26] The issues on this appeal are:
Did the arbitrator err in the determination of the appropriate time frame for principal dependency for financial support and care?
Did the arbitrator err in the determination of principal dependency for care on the time frame of 5.5 weeks?
If 5.5 weeks is the correct time frame, is dependency determined by a conjunctive or disjunctive analysis of “principally dependent for financial support or care” under s. 3(7) of the SABS?
Analysis
1. Did the arbitrator err in the determination of the appropriate time frame for principal dependency for financial support and care?
[27] It is well-established that on a dependency analysis, the arbitrator is required to look at the relationship between the claimant and the insureds during a period of time which fairly reflects the status of the parties at the time of the accident. This may require the trier of fact to fit fluid and transient human relations into rigid legal categories. It is not always a comfortable fit. To arrive at an appropriate determination of dependency status, one has to look at the status of a person’s needs and resources over a period of time. The time period chosen for a dependency analysis must reflect the facts of the case. There is no categorical or one-size-fits-all approach. There is also no permanency requirement to “transient” or “recent” relationships: Intact Insurance Co. v. Allstate Insurance Co. of Canada, 2016 ONCA 609 at paras. 66 - 69. The dependency assessment is more than counting days: it is an assessment of the nature of the relationship by which support is offered: State Farm Mutual Insurance Company v. Her Majesty the Queen, 2018 ONSC 4258 at para. 73.
[28] The parties agree the arbitrator correctly identified the applicable legal principles for determination of the appropriate time frame. They dispute whether he correctly applied those principles to the facts.
[29] Aviva contends the arbitrator’s finding Isabelle’s residence was in a state of flux and no more than a transient change repeats the errors identified by the Court of Appeal in Intact Insurance, supra. The arbitrator speculated as to the future of the relationship at the time of the accident and required that there be evidence of permanence. He essentially concluded Isabelle would not return to her father’s home after the six days at her friend’s house.
[30] I do not accept this submission. I find no extricable error of law in the arbitrator’s application of the legal principles to the facts. The arbitrator exhaustively reviewed the applicable legal principles and the record. It is evident from a review of the arbitrator’s reasons as a whole that his focus was on the nature of the child’s relationships with her parents at the time of the accident, without improper regard to what might have transpired but for the accident.
[31] This situation is distinguishable from Intact Insurance, supra, where the claimant and her children relocated from northern Ontario to Sarnia to take up residence with the insured several weeks before the accident that catastrophically injured the children. The arbitrator concluded the seven-week relationship between the claimant and insured was unlikely to have succeeded and therefore chose a one-year period. The Court of Appeal held this was improper speculation and inconsistent with the evidence. The uncontradicted witness evidence indicated the claimant’s move with her children to live with the insured was intended to be permanent [that term used by the court of appeal notwithstanding the admonition]. The insured and claimant believed they were building a real relationship and they had made plans to settle the claimant’s children in Sarnia. Although the arbitrator did not question this evidence, he rejected the seven-week period as the applicable time frame because of his doubts about the permanence of the relationship.
[32] In contrast, in these circumstances, the arbitrator remained focused on the nature and status of the child’s relationships with her parents at the time of the accident when considering which period gave a fair picture of those relationships. He gave his reasons for rejecting
Aviva’s contention the recent change to father’s residence marked a “new normal” and overall change in the relationship between Isabelle and her parents.
[33] The arbitrator’s finding the child’s residency was in a “state of flux” simply recognized her circumstances at the time. Similarly, his reference to the child’s “trajectory” was not speculation as to her future. It was one piece of evidence of the child’s circumstances regarding her needs. This factor was appropriately relied upon by the arbitrator in determining the appropriate time frame.
[34] The arbitrator offered no speculation as to the viability of Isabelle’s living arrangement with her father but for the accident. In rejecting the shorter time frame, his conclusion that the move to her father’s residence was short-lived and transient was not future speculation. It was an observation of her circumstances at the time of the accident and was grounded in ample evidence on which he could rely for this conclusion: her behaviour went unchanged; the attempt to impose a structured environment in her father’s home failed, she continued to run away; father advised CAS he did not think he could manage his daughter any longer; however he would not engage with child welfare on reviewing other options; she was not, in fact living with her father at the time of the accident but was homeless; and she refused to return to her father’s home. Moreover, although Isabelle was away from her mother’s home during these weeks, her mother was still actively involved in her life through regular contact with Isabelle and engaged with CAS in trying to encourage her to return to her father’s home. The father may have had the formal authority to determine where Isabelle could live and whether she would be placed in care; however, in substance, the record demonstrates his ambivalence and disengagement as to where and how she would live.
[35] It was therefore open to the arbitrator on these facts to conclude 12-months was the appropriate time frame for analysis and I can find no obvious error, crucial flaw, fallacy, or mistake in his analysis. I dismiss this ground of appeal.
2. Did the arbitrator err in the determination of principal dependency for care on the time frame of 5.5 weeks?
[36] My finding on the first issue is dispositive of the appeal; however, I will address Aviva’s issues with the arbitrator’s “dependency for care” analysis in the event of a quarrel with my assessment on the first issue.
[37] The arbitrator held that even if the appropriate time frame for the dependency analysis was 5.5 weeks, that he was satisfied Isabelle remained principally dependent on her mother for care during that shorter period.
[38] Aviva again acknowledges the arbitrator correctly noted the applicable legal principles in determining principal dependence for care.
[39] However, Aviva submits the arbitrator erred in his analysis by focusing on Isabelle’s emotional and social support needs and her father’s failings in those areas. The arbitrator
ignored that the father had the formal responsibility for protection of Isabelle and provided the necessary structured environment to the vulnerable child at the material time. The father tried to implement and enforce rules for the child’s well-being and protection and the arbitrator improperly speculated the father was not equipped to “fix” Isabelle. The arbitrator also erred in unevenly weighing the evidence and in not subjecting the mother’s inability to provide care to Isabelle to the same “critical lens”. Proper consideration of those responsibilities would have shifted the priority if the appropriate time frame for analysis was the 5.5 weeks before the accident
[40] Belair submits the arbitrator made no palpable and overriding error in his care dependency analysis. Aviva’s argument again invites the court to reject the arbitrator’s findings and to reweigh the evidence.
[41] I find that Aviva’s contention is not supported by a review of the arbitrator’s reasons as a whole. There was neither a palpable and overriding error nor an extricable error of law in the arbitrator’s application of the legal principles to the facts.
[42] My reasons may largely repeat my assessment of the arbitrator’s approach to the time-frame analysis but bear repeating as it relates to the care lens. The arbitrator thoroughly reviewed the evidentiary record in respect of Isabelle’s care needs. He found the child’s complex mental illness, as identified by her specialist, gave rise to a need for supervision, guidance, and emotional support.
[43] I disagree the arbitrator’s reasons demonstrate uneven scrutiny or weighing of the evidence when considering the care offered by the mother in comparison to that of the father. Detailed review of the contemporaneous text messages among mother, father and the claimant and the CAS file supported the arbitrator’s finding that if there was any stability in Isabelle’s life it was from her mother and that the level of emotional support and guidance provided by mother during that short period of time far exceeded the support offered by the father.
[44] The evidence was the mother was motivated for her daughter to receive institutional help and that she believed her only route, through CAS support, was to first try placing Isabelle with her father and to refuse to allow Isabelle to return to her, which the arbitrator described as “tough love”. The text messages and other documentary evidence during this time supported the arbitrator’s finding that the mother continued to offer support and guidance when Isabelle was supposed to be living in her father’s care.
[45] I do not agree the arbitrator speculated the father would be unable to “fix” the child. It is clear his assessment of the father’s role focussed on his conduct contemporaneous to the 5.5-week time frame in issue rather than any prediction on the relationship. Within one week of Isabelle coming into his care, the father told CAS his daughter was out of control and that he could not manage her anymore, although then changed his mind. Yet there was no further productive communication. He may have been responsible as a matter of form,
but it was open to the arbitrator to find he had abdicated the responsibility in substance. His daughter left his house after either being locked out for not following rules or an argument. His declaration to the friend’s father that he could “keep her” or “throw her out onto the street” is arguably out of context on its own. But on the whole of the evidence, it is consistent with the arbitrator’s finding that a principal care dependency relationship between father and daughter was not present. In the days before the accident, the CAS worker noted the father had not followed through on the offers of services and support. The CAS worker and Isabelle tried to meet with him to discuss a plan for getting her some help. However, he would not return the agency’s calls. In the meantime, the child was consistent in her position that she was afraid of her father and would not return to his home.
[46] It was therefore open to the arbitrator on this evidence to conclude that her care relationship with her parents was no different from what it had been before she changed addresses and that the child remained principally dependent for care on her mother under both the 12-month and the 5.5-week period. I cannot find any obvious error in the application of these facts to the legal principles informing dependency for care.
[47] I accordingly dismiss this ground of appeal.
3. If 5.5 weeks is the correct time frame, is dependency determined by a conjunctive or disjunctive analysis of “principally dependent for financial support or care” under s. 3(7) of the SABS?
[48] I found the arbitrator did not err in finding 12 months was the appropriate time for the dependency analysis. On the 12-month time frame there is no dispute that Isabelle was principally dependent upon her mother for financial support and care.
[49] I therefore find that the further question of principal dependency for financial support and/or care under the 5.5-week time frame need not be answered and, in any event, cannot be properly determined on this appeal record. Had I found the arbitrator was in error and that 5.5-weeks was the appropriate dependency time frame, I accept Belair’s position that the appropriate disposition would be to remit the matter back to the arbitrator to weigh the evidence and determine upon whom Isabelle was principally dependent, with regard to the conjunctive or disjunctive analysis.
Conclusion
[50] The appeal is accordingly dismissed, and the order of the arbitrator dated May 4, 2021, affirmed.
[51] Belair is entitled to its costs of the appeal, which the parties agreed should be fixed in the amount of $7,500.
“Justice K. Tranquilli”
Justice K. Tranquilli
Released: May 13, 2022
[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Aviva v. Belair, 2022 ONSC 2887
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AVIVA INSURANCE COMPANY OF CANADA
Applicant
– and –
BELAIR INSURANCE COMPANY INC.
Respondent
Respondent REASONS FOR JUDGMENT
Justice K.A. Tranquilli
Released: May 13, 2022