Canadian Underwriter

Surety relationship with mother not a “dependent” one under SABS: Appeal Court

November 27, 2006   by Canadian Underwriter

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Staying at home with one’s mother while at the same time as being in a surety relationship with her is not the same as being “principally dependent” upon her for care (as defined in the Statutory Accident Benefits Schedule), according to the Ontario Court of Appeal.
The appellate court made the decision in November in the case of the Oxford Mutual Insurance Company v. Co-operators General Insurance Company.
The case determined which insurer was responsible for paying the statutory accident benefits of Joshua Williams, who was left with quadriplegia after a motor vehicle accident in 2002.
Oxford Mutual was the Williams’ mother’s insurer while The Co-operators insured the car Williams occupied at the time of the accident.
According to the SABS, the mother’s insurer, Oxford Mutual, would be responsible for making the payments if Williams was found to be “principally dependent” upon her for care. At the time, Williams was living in a surety relationship with his mother.
In March 2002, Mr. Williams was charged with assaulting and threatening his former girlfriend. In April 2002, he was released on bail with his mother acting as his surety on agreed-upon terms.
Those terms provided that Mr. Williams would leave his apartment to reside with his mother and obey her house rules, which were filed with the court.
Those rules required Mr. Williams to stay away from his former girlfriend and her friends, go straight to and from work, obey a curfew of 11:00 p.m. on non-work nights, keep his mother informed of his whereabouts, refrain from attending at local bars, and work with his mother to seek counselling.
Overruling the arbitrator in the case, a lower court judge found that Williams was “principally dependent” upon his mother for care because he was under her “control” in a surety relationship. But the Court of Appeal agreed with the arbitrator, noting that while Williams was under his mother’s “control” in a surety relationship, he was not dependent upon her for “care.” For example, Williams had a job that had him working late at night and oftentimes he did not see his mother because she worked during the day.
“It is not contested that Mr. Williams was independent in the sense that he cared for his own personal needs, provided his own transportation, took care of his own finances, and contributed to the household both financially and by way of taking responsibility for chores,” the Appeal Court ruled. “The nature of the surety relationship, while relevant, is not determinative.”