Willard v. Zurich Insurance Co.
[Indexed as: Willard v. Zurich Insurance Co.]
73 O.R. (3d) 309
[2004] O.J. No. 4388
Court File No. C-6201/01
Ontario Superior Court of Justice,
Gauthier J.
October 29, 2004
Insurance — Automobile insurance — Statutory accident benefits — Death benefits — Child born after father’s death in motor vehicle accident being “dependant” within meaning of Statutory Accident Benefits Schedule and entitled to receive death benefit arising from death of his father — Statutory Accident Benefits Schedule — Accidents on or After November 1, 1996, O. Reg. 403/96.
The plaintiff’s husband died following a motor vehicle accident. At the time of the accident, the plaintiff was pregnant. She subsequently gave birth to the couple’s son. The plaintiff was the owner of the vehicle involved in the accident and held a standard automobile policy issued by the defendant. She applied for and was denied a death benefit on behalf of the child. A motion was brought by way of special case for the determination of the question whether the child was a “dependant” within the meaning of the Statutory Accident Benefits Schedule (“SABS”) and entitled to receive the death benefit. [page310]
Held, the question should be answered in the affirmative. Under the SABS, 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 person’s spouse or same-sex partner. Although a fetus is not a “person” while in a pre- natal state, that status changes upon his birth. Once the child is born alive, the rights which were inchoate up until the child’s birth crystallize. The legal fiction applies for the purpose of enabling the unborn child, subsequently born alive, to take a benefit to which it would have been entitled
at the time, if it had been born. Applying the legal fiction to this case, the child would be considered to have been born, at the date of the death of his father. He would be a “person” at the time of the death of his father as a result of his subsequent live birth. The child would have been, on the date of the death of his father, dependent upon both of his parents, totally and completely, for financial support and his care. The SABS is social welfare l egislation, which is to be construed liberally to advance its purpose. The purpose of the death benefit is to provide modest but not insignificant short-term financial assistance to those persons who lose their principal source of financial support or care. The child was clearly a dependant in accordance with s. 2(6) of the SABS and was entitled to the death benefit.
Dehler v. Ottawa Civic Hospital (1980), 25 O.R. (2d) 748, 117
D.L.R. (3d) 512 (C.A.); Fitzsimonds v. Royal Insurance Co. of Canada, [1984] A.J. No. 2559, 7 D.L.R. (4th) 406 (C.A.); MacIsaac v. Smith (1987), 58 O.R. (2d) 289, 20 O.A.C. 241, 35 D.L.R. (4th) 451, 39 C.C.L.T. 239, 19 C.P.C. (2d) 56 (Div. Ct.); Scrimshaw v. Constitutional Insurance Co. of Canada (1979), 26
O.R. (2d) 371, [1979] I.L.R. para. 1-1160 (County Ct.); Vasey v. Economical Mutual Insurance Co. (1987), 60 O.R. (2d) 64, [1987] I.L.R. para. 1-2241 (Div. Ct.), affg (1986), 54 O.R. (2d) 692, [1986] O.J. No. 1891, [1986] I.L.R. para. 1-2062 (Dist. Ct.); Virk v. Liberty Mutual Insurance Co.
(unreported, FSCO decision No. a03-0000023), consd Other cases referred to
Abrahams v. Canada (Attorney General), [1983] 1 S.C.R. 2, 142
D.L.R. (3d) 1, 46 N.R. 185; Fraczek v. Pascual (2003), 64 O.R.
(3d) 437, 226 D.L.R. (4th) 309, 50 E.T.R. (2d) 56, [2003]
O.J. No. 1402 (C.A.); Garland v. Rowsell (1990), 73 O.R. (2d) 280, [1990] O.J. No. 822 (Dist. Ct.); Louis v. Esslinger (1981), 121 D.L.R. (3d) 17, [1981] 3 W.W.R. 350, 15 C.C.L.T. 137 (B.C.S.C.), supp. reasons (1981), 29 B.C.L.R. 41, 22 C.P.C.
68 (S.C.); Mathison v. Hofer, [1984] M.J. No. 74, 27 Man. R. (2d) 41, [1984] 3 W.W.R. 343, 28 C.C.L.T. 196 (Q.B.); Montreal Tramways Co. v. Lvill, [1933] S.C.R. 456, [1933] 4
D.L.R. 337; Ridgley v. Zurich Insurance Co., [1994] O.I.C.D. No. 36; Schofield v. Orrell Colliery, [1909] 1 K.B. 177; Seed v. Delhey (1989), 70 O.R. (2d) 692, [1989] O.J. No. 1413 (H.C.J.); Singh v. State Farm Mutual Automoble Insurance
Co., [1993] O.I.C.D. No. 31; Smith v. Insurance Corp. of British Columbia, [1980] B.C.J. No. 568, 21 B.C.L.R. 317 (S.C.); Stone
v. Hartman, [1996] O.J. No. 3107, 12 O.T.C. 18 (Gen. Div.);
Tremblay v. Daigle, [1989] 2 S.C.R. 530, 27 Q.A.C. 81, 62 D.L.R.
(4th) 634, 102 N.R. 81 (sub nom. Daigle v. Tremblay); Treverton
v. Canada (Superintendent of Insurance) (1989), 67 O.R. (2d) 765, 57 D.L.R. (4th) 179, 20 M.V.R. (2d) 261 (H.C.J.); Whale v. Guarantee Co. of North America, [2002] O.F.S.C.I.D. No. 14; Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925, 121 Man. R. (2d) 241, 152 D.L.R. (4th) 193, 219 N.R. 241, 158 W.A.C. 241, [1998] 1 W.W.R. 1, 39
C.C.L.T. (2d) 155, 31 R.F.L. (4th) 165.
Statutes referred to
Family Law Act, R.S.O. 1990, c. F.3, s. 61
Insurance Act, R.S.O. 1980, c. 218, Sch. C, s. 2, Part I, para. B(3)(b) [page311]
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 22 Statutory Accident Benefits Schedule — Accidents on or After
November 1, 1996, O. Reg. 403/96, s. 2 Authorities referred to
Sullivan, R., Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994)
Watson, A. (ed.), The Digest of Justinian (Philadelphia: University of Pennsylvania Press, 1998)
MOTION for a determination of a question of law.
Andre M. Lacroix, for plaintiff.
M.J. Lucille Shaw, for defendant.
[1] GAUTHIER J.: — On October 14, 2004, I heard the Rule 22 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] motion, i.e. by way of special case. I reserved my ruling at that time.
Facts
[2] On August 31, 1999, Leonard Willard was involved in a motor vehicle accident which cost him his life. His wife, Heidi, who was not involved in the collision, was pregnant on the date of the accident. She gave birth to the couple’s son, Skeet Willard, on September 23, 1999.
[3] Heidi Willard was the owner of the vehicle involved in the accident, and she held a standard automobile policy with Zurich Insurance Company (“Zurich”).
[4] Heidi Willard applied for and was denied the death benefit on behalf of the child Skeet.
Issue
[5] Whether or not Skeet Willard, who was not born until after the accident which resulted in the death of his father, is a “dependant” within the meaning of the Statutory Accident Benefits Schedule — Accidents on or After November 1, 1996, O.
Reg. 403/96] (“SABS”), and is thus entitled to receive a death benefit arising from the death of his father.
[6] The provisions of the SABS are fully reproduced in the Special Case. For my purposes, the following are the relevant provisions:
2(1) “insured person” in respect of a particular motor vehicle liability policy means,
(a) the named insured, any person specified in the policy as a driver of the insured automobile, the spouse or same sex partner of the [page312] named insured, and any dependant of the named insured, spouse or same sex partner . . . .
(6) For the purpose of this Regulation, 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 person’s spouse or same sex partner.
[7] Zurich’s position, briefly summarized is that, given that Skeet Willard was not born at the time of the accident which killed his father, he was not a person and could not therefore be “principally dependent for financial support or care” on either his mother or his father.
[8] For her part, Heidi Willard relies on the legal fiction which vests certain rights to a fetus if it is born alive.
[9] For the reasons that follow, I have concluded that Skeet Willard is in fact entitled to the death benefit claimed.
[10] Both counsel provided me with extensive case law on this issue, which was helpful to me in my determination of this very interesting question.
[11] The legal fiction in question appears to have its genesis in Alan Watson, ed., Digest of Justinian (Philadelphia: University of Pennsylvania Press, 1998), lib.1, tit. 5, ss. 7 and 26:
“7. Qui in utero est, perinde ac si in rebus humnis esset, custoditur, quoties de commodes ipsius partas quaeritur”, which translates to meaning that an unborn child is taken care of just as much as if it were in existence in any case in which the child’s own advantage comes into question.
. . . . .
“26. Qui in utero sunt in toto paene jure civili intelliguntur in rerum natur esse”. Unborn children are in almost every branch of the civil law regarded as already existing.
[12] The fiction was discussed and applied by the Supreme Court of Canada in Montreal Tramways Co. v. Lveill, [1933] S.C.R. 456, [1933] 4 D.L.R. 337. The court found that a child who suffers injury while en ventre sa mre has the right, after birth, to recover damages for the injury sustained by it in its pre-natal state.
[13] At p. 463 S.C.R., the court reviewed some of the opinions expressed by 18th-century English judges and concluded that the fiction of the civil law had general application.
[14] In rejecting the argument that an unborn child is a part of its mother, without separate existence, the court said the following at p. 464 S.C.R.:
If a child after birth has no right of action for pre-natal injuries, we have a wrong inflicted for which there is no remedy, for, although the father may be entitled to compensation for the loss he has incurred and the mother for what she has suffered, yet there is a residuum of injury for which compensation [page313] cannot be had save at the suit of the child. If a right of action be denied to the child it will be compelled, without any fault on its part, to go through life carrying the seal of another’s fault and bearing a very heavy burden of infirmity and inconvenience without any compensation therefor. To my mind it is but natural justice that a child, if born alive and viable, should be allowed to maintain an action in the courts for injuries wrongfully committed upon its person while in the womb of its mother.
[15] The child in that case was deemed to have been born at the time of the accident to the mother.
[16] The fiction was recognized and applied in Fitzsimonds v. Royal Insurance Co. of Canada, [1984] A.J. No. 2559, 7 D.L.R. (4th) 406 (C.A.). That case involved a claim for payment of a death benefit to a child who was not yet born at the time of the death of her father. The Alberta Court of Appeal concluded that the child was entitled to the payment. At para. 4 of that decision, the court discussed the fiction in the context of the provisions of the Standard Policy of Insurance which had been issued by the defendant, and the provisions of the Alberta Insurance Act, R.S.A. 1970, c. 187:
A fiction has developed in the law that in respect of property rights an unborn child who is subsequently born alive is in the same position as a child living at the time of the death of the benefactor. This fiction has existed for over a century and is so well established that for a statute conferring property rights on children to be interpreted as excluding a child who was en ventre sa mre at the time of the death of the father would require specific words of exclusion. In interpreting statutes such as the Insurance Act I think cognizance must be taken of this fiction. It would be known to the legislative draftsman and the legislation would be passed with this fiction in mind.
[17] The court referred to Schofield v. Orrell Colliery, [1909] 1 K.B. 177. That case involved the interpretation of a Workmen’s Compensation statute which contained no language referring to an unborn child. Compensation could only be awarded by the application of the legal fiction deeming the unborn child as being born at the time of the death of his father. The court referred and relied on the following passage from p. 182 K.B of that decision:
The House of Lords in Villar v. Gilby, [1907] A. C. 139, decided that, when it is for the benefit of the child, a child en ventre sa mre is taken to be born. Of course an unborn child is not born — it is not an existing person in the ordinary sense of the word. All our statutes are, of course, framed in language suitable to the case of existing personas, and thus the peculiar fiction of law by which a non-existent person is to be taken as existing is not provided for in their language; therefore you can always show that the language of a statute does not fit the case of the unborn. But that is not the way to consider the language of statutes when you are dealing with cases in which the law has given the same rights to a non-existent child as to an existing child. The true way of interpreting the language of a statute in such a case is to [page314] assume that the child is born, and then to draw deduction in the same way as we should in the case of an existing person. Now, assuming that this child had in fact been born, I have no hesitation in drawing from the facts of this case the conclusion that as soon as he was born he would have been dependent on the earnings of the deceased. I am obliged to put in words “would have been” instead of “was”, not because I am enlarging the operation of the statute, but because I am applying it to a case where by a legal fiction a non-existent child is treated as existing.
[18] The Court of Appeal also referred to Louis v. Esslinger (1981), 121 D.L.R. (3d) 17, [1981] 3 W.W.R. 350 (B.C.S.C.), a decision of the British Columbia Supreme Court, which dealt with the right of a child to recover damages, under the Family Compensation Act, for the death of her parent which death occurred prior to the birth of the child. The argument advanced in that case was that the child, having been born after the death of the deceased, was never a “person” within the lifetime of the deceased and thus could not recover damages for the death of the deceased. The court in Esslinger rejected that argument, and said, at p. 377 W.W.R.:
Any defect in the status of this infant to claim damages was cured by his live birth.
[19] The court in Fitzsimonds also relied specifically on Smith v. Insurance Corp. of British Columbia, [1980] B.C.J. No 568, 21 B.C.L.R. 317 (S.C.), a decision of the British Columbia Supreme Court. In that case, as in Fitzsimonds and in the case before me, the Insurance regulations were silent about a child en ventre sa mre. The court concluded that it would be contrary to common sense to exclude the unborn child (subsequently born alive) from the death benefit because the regulation was silent. At para. 21 of the decision, the court said:
One obvious purpose of the Act is to provide financial held [sic] for survivors and surely a child yet unborn stands in as great a need as any already born and a highly restrictive interpretation, not consistent with the beneficial intent of the Act, would have to be applied to bar qualification for her . . . “child” includes a child en ventre sa mre unless the context indicates otherwise.
[20] Finally, Fitzsimonds specifically rejected Scrimshaw v. Constitutional Insurance Co. of Canada (1979), 26 O.R. (2d) 371, [1979] I.L.R. 1-1160 (County Ct.), which I discuss later in these reasons.
[21] I wish to return to the passage in Esslinger quoted above dealing with the status of a child born alive and viable, compared to its status as a fetus. This was discussed, as well, in Mathison v. Hofer, [1984] M.J. No. 74, 27 Man. R. (2d) 41 (Q.B.). In that case, the plaintiff mother claimed the death benefit for [her] unborn [page315] child who died as a result of a motor vehicle accident. The court found that the mother was not entitled to the death benefits because the child was not born alive. The court relied heavily on Dehler v. Ottawa Civic Hospital (1980), 25 O.R. (2d) 748, 117 D.L.R. (3d) 512 (C.A.).
[22] I turn now to that decision. David Dehler, on behalf of a class of unborn persons, claimed injunctive and declaratory relief to prohibit two Ottawa hospitals from performing therapeutic abortions. The action was dismissed and that dismissal was upheld by the Court of Appeal on the basis that a child is not, at law, an independent legal entity prior to its birth. An unborn child is not a “person”. The unborn children who were the subject of Mr. Dehler’s application did not have status or standing to bring the application. Nor could the action be maintained on their behalf.
[23] The court’s comments on the legal position of an unborn child are instructive. At p. 757 O.R., the court said:
While there can be no doubt that the law has long recognized foetal life and has accorded the foetus various rights, those rights have always been held contingent upon a legal personality being acquired by the foetus upon its subsequent birth alive and, until then, a foetus is not recognized as included within the legal concept of “persons”. It is only persons recognized by law who are the subject of a right, the person is the object of the correlative duty . . .
Since the law does not regard an unborn child as an independent legal entity prior to birth, it is not recognized as having the rights the plaintiff asserts on its behalf or the status to maintain an action. A foetus, whatever its stage of development, is recognized as a person in the full sense only after birth. In the law of torts or property, in cases involving inheritance or pre-natal injury, a foetus would have no rights if stillborn. Only upon live birth can rights acquired during gestation be asserted. In none of the decisions to which I have referred or of which I am aware, has the foetus been regarded as a person before its birth. In short, the law has set birth as the line of demarcation at which personhood is realized, at which full and independent legal rights attach, and until a child en ventre sa mre sees the light of day it does not have the rights of those already born.
[24] The law is clear that an unborn child is not a “person” capable of asserting any legal rights prior to its birth: Dehler v. Ottawa Civic Hospital (supra); Whale v. Guarantee Co. of North America, [2002] O.F.S.C.I.D. No. 14; Tremblay v. Daigle, [1989] 2 S.C.R. 530, 62 D.L.R. (4th) 634; Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925, 152 D.L.R. (4th) 193.
[25] The law is equally clear that once born, the child can sue to recover damages for injury sustained while it was a fetus: Montreal Tramways, supra; Dehler, supra; Tremblay v. Daigle, supra. [page316]
[26] The law is clear as well, I suggest, that a child en ventre sa mre is entitled to maintain an action pursuant to s. 61 of the Family Law Act, R.S.O. 1990, c. F.3 for the death of its parent, if the child is subsequently born alive: Seed v. Delhey (1989), 70 O.R. (2d) 692, [1989] O.J. No. 1413 (H.C.J.); Garland v. Rowsell (1990), 73 O.R. (2d) 280, [1990] O.J. No. 822 (Dist. Ct.).
[27] In those cases relied upon by Zurich, where the unborn child was not entitled to claim under s. 61 of the Family Law Act, the child had not yet been conceived at the time of the death or injury to its relative. See MacIsaac v. Smith (1987), 58 O.R. (2d) 289, 19 C.P.C. (2d) 56 (Div. Ct.). Zurich relied on Stone v. Hartman, [1996] O.J. No. 3107, 12 O.T.C. 18 (Gen. Div.), which decision denied the right of a child to be added as a plaintiff in an action the cause of which arose prior to the child’s birth. Master Clark, in that decision, relied on MacIsaac v. Smith. In this latter case, however, the child in question had not been conceived at the time of the motor vehicle accident in question. The portions of the MacIsaac decision quoted and relied upon in Stone v. Hartman were made in the context of “whether one, neither born nor conceived at the time of the motor vehicle accident said to give rise to a cause of action, who, upon birth within rel evant limitation periods falls within the class of persons entitled to claim relief under s. 60 F.L.R.A., may, nonetheless, assert entitlement to the relief there afforded”, at p. 292 O.R. of MacIsaac.
[28] This distinction between a child en ventre sa mre subsequently born alive, and a child not yet conceived at the time of the event and later born alive was also considered in Seed v. Delhey, supra. Chadwick J., in referring to the child en ventre sa mre, subsequently born alive, said this, at p. 696 O.R.:
In my view, these cases can be clearly distinguished from the cases dealing with after acquired rights. It would appear to be inequitable that a child who had been conceived before the death of his or her father and born alive would not be entitled to the same rights and benefits of his or her brothers and sisters. In applying the fiction, the legislators undoubtedly were aware of the property rights which had developed over the years to protect the child “en ventre sa mre” and if they had intended to exclude this class of child, they would have specifically said so in the legislation.
[29] The right of an unborn child, later born alive, to recover as an “insured person” under the underinsured motorist protection portion of an insurance policy was considered in Treverton v. Canada (Superintendent of Insurance) (1989), 67 O.R. (2d) 765, 57 D.L.R. (4th) 179 (H.C.J.). In that case, the definition of “insured person” included: [page317]
. . . the named insured and, if residing in the same dwelling premises as the named insured, his or her spouse and any dependent relative of either . . .
[30] At p. 78 O.R. of that decision, Osborne J. said this:
It seems to me to be consistent with the scheme established through the S.E.F. 42 endorsement to view Christine as an insured person once she was born alive. Christine was clearly dependent upon her mother at the time of this accident although she could not then be viewed as a person: see Dehler v. Ottawa Civic Hospital (1979), 25 O.R. (2d) 47, 101 D.L.R. (3d) 686, 14 C.P.C. 4 (Ont. H.C.J.). It seems to me that upon being born alive and in circumstances where she was totally dependent upon her mother, Christine became an insured person under cl. 9 of the S.E.F. 42 endorsement. The definition of insured person, in the case of an unborn child born alive, should be liberally approached consistent with the intention underlying the introduction of the S.E.F. 42 endorsement to the lives of Ontario’s drivers.
[31] I believe it to be clear that, although a fetus is not a “person” while in a pre-natal state, that status changes upon its live birth. As was stated in Louis v. Esslinger, supra, at [p. 377 W.W.R.] “[a]ny defect in . . . status
. . . was cured by his live birth.”
[32] Once the child is born alive, then the rights, which up until the child’s birth were inchoate, crystallize. The legal fiction applies for the purpose of enabling the unborn child, subsequently born alive, to take a benefit which it would have been entitled to at the time, if it had been born.
[33] Applying the legal fiction to the instant case, the child Skeet Willard would be considered to have been born, at the date of the death of his father. He would be a “person” at the time of the death of his father as a result of his subsequent live birth. Such a conclusion in no way runs contra the principles enunciated in Dehler v. Ottawa Civic Hospital, supra, or Tremblay v. Daigle, supra.
[34] To conclude that Skeet Willard was not a “person” on the date of the death of his father, notwithstanding that Skeet was born alive subsequent to the death of his father, would be to either disregard the legal fiction altogether, or to defeat the very purpose for which the fiction exists, namely, to deem the child to be born for all purposes when to do so is to the child’s benefit.
[35] I turn now to the second branch of Zurich’s argument, namely that the child Skeet Willard does not meet the definition of “dependant” under the SABS.
[36] Zurich relies upon the decision in Vasey v. Economical Mutual Insurance Co. (1986), 54 O.R. (2d) 692, [1986] O.J. No. 1891 (Dist. Ct.). The court in that case concluded that an unborn child, subsequently born alive, was not a dependant under Schedule C of the Insurance Act, which provided that a [page318] dependant was “a person, . . . under the age of 18 years who resides with and is principally dependent upon the head of the household or the spouse of the head of the household for financial support”.
[37] McTurk D.C.J. came to the above conclusion for the following reasons:
(a) to include the unborn child in the definition of “dependant” would be to amend the statute by extending the plain and unambiguous meaning of the word; he relied on the decision of Honey J. in Scrimshaw v. Constitution Ins. Co. of Canada (1979), 26 O.R. (2d) 371; and
(b)the child in question was not a “person” at the date of the accident; Judge McTurk relied on the Dehler decision.
[38] To agree with Honey J.’s decision in Scrimshaw was to agree with a conclusion which was reached with no consideration of the legal fiction. A reading of Scrimshaw indicates that Judge Honey neither considered, nor was referred to the legal fiction. He concluded that, because the child in question was not born, i.e. alive at the time of the deceased’s death, he could not be a “survivor”. He further concluded that, at best, an unborn child was dependent of the deceased only insofar as the unborn child’s mother was dependent on the deceased. In other words, any possible dependency could only be asserted through the unborn child’s mother. This conclusion is directly contrary to the principle enunciated in Schofield v. Orrell, supra, and Montreal Tramways, supra.
[39] Judge Honey imposed the requirement that the child be born at the time of the death of its relative, which requirement has subsequently been rejected: Seed v. Delhey, supra; Garland v. Rowsell, supra.
[40] Judge McTurk’s reliance on the Dehler decision is also problematic. The passages from Dehler, relied upon by McTurk J., were in the context of the rights of a fetus, while in utero. The legal fiction is not concerned with foetal rights. Rather, it entails an assertion of the rights of a child born alive to recover for its ongoing or present loss arising out of a wrong done while the child was conceived, but not yet born. The Dehler decision recognized that upon live birth, rights acquired during the gestation period could be asserted.
[41] With respect, I conclude that the reasoning in Vasey is not persuasive. I make the same comment with regard to the Scrimshaw decision. [page319]
[42] I have considered the Ontario Insurance Commission decisions which both counsel referred me to. I believe that Ridgley v. Zurich Insurance Co., [1994] O.I.C.D. No. 36 is wrongly decided. I find the logic in Virk v. Liberty Mutual Insurance Co., unreported, FSCO decision No. a03-0000023, to be more persuasive. It recognizes that a “temporal qualifier” such as that referred to in Ridgley does not oust the fiction, given that the entire purpose of the fiction is to deem the child to be alive at the date of the event which triggers the benefit to the child.
[43] Given that the fiction deems Skeet Willard to be born on the date of the death of his father, the next question is whether he was “principally dependent for financial support or care on the other person or the person’s spouse or same sex partner”.
[44] For Skeet to be “principally dependent for financial support or care on the other person”, he must chiefly, or for the most part, derive his support from the other person: Singh and State Farm Mutual Automobile Insurance Co., [1993] O.I.C.D. No. 31.
[45] I conclude that indeed the child Skeet would have been, on the date of the death of his father, dependent upon both of his parents, totally and completely, for financial support and his care, which entails the provision of what is required for the health, maintenance, and well-being of the child: see the definition of “care” in the Concise Oxford Dictionary.
[46] I agree with the conclusions reached in Fitzsimonds v. Royal Insurance, supra, and Bonisteel v. Pilot Insurance Co., supra, that a specific exclusion of children in utero is required if they are not to receive death benefits in circumstances such as those of Skeet Willard.
[47] The SABS is social welfare legislation, which is to be construed liberally to advance its purpose. See R. Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), at p. 376:
Where reasonable doubts or ambiguities arise, they are to be resolved in favour of the claimant. The courts’ primary concern is ensuring that the legislative benefits reach the persons for whom they were designed.
(See Abrahams v. Canada (Attorney General), [1983] 1 S.C.R. 2, 142 D.L.R. (3d) 1, at pp. 9-11 S.C.R., pp. 7-8 D.L.R.)
[48] The purpose of the death benefit is intended to provide “modest but not insignificant, short term financial assistance” to those persons who lose their principal source of financial support or care. See Fraczek et al. v. Pascual (2003), 64 O.R. (3d) 437, [2003] O.J. No. 1402 (C.A.). [page320]
[49] By virtue of the legal fiction, Skeet Willard is deemed to have been born at the time of his father’s death. He is clearly then a dependent in accordance with s. 2(6) of the SABS and is entitled to the death benefit.
[50] Such a conclusion is consistent with the principle of enabling the unborn child, subsequently born alive, to take a benefit which it would be entitled to if born alive. I do not see how the entitlement to death benefits for the death of a child’s father differs from the entitlement of a child born alive to recover for injuries sustained by it, in utero, as a result of a wrongdoing by a third party. Nor do I see how the entitlement to the death benefit differs from the entitlement of a child born alive to recover pursuant to s. 61 of the Family Law Act for the death of a relative, which death occurred while the child was en ventre sa mre.
[51] The child, Skeet Willard, is asserting entitlement to a right which arose at the time of death of his father, but was inchoate until the moment of his birth. Such a conclusion is not an extension of the fiction, but rather the correct application of it.
Conclusion
[52] The child, Skeet Willard, born September 23, 1999, is “a dependant”, within the meaning of the SABS, and is therefore entitled to the death benefit.
[53] If counsel wish to address me on costs they are to make arrangements with the Trial Co-Ordinator within 20 days.
Order accordingly.