Living in the same residence is not necessary to be “residing with”

In a recent preliminary issue hearing for Rampersaud and TD General Insurance Company (FSCO A11-002773, February 19, 2013), FSCO’s Arbitrator John Wilson was asked to determine whether an adult daughter was entitled to receive caregiver benefits for care provided to her elderly mother.  Ms. Rampersaud’s mother was 78 years-old, and suffered from stage 6 Alzheimer’s, which meant she needed significant supervision.

Prior to being involved in a motor vehicle accident on July 6, 2009, Ms. Rampersaud and her two children moved into the same apartment building as her parents.  With Ms. Rampersaud living in apartment 905, and her parents living in apartment 710, TD General denied Ms. Rampersaud’s entitlement to caregiver benefits because she was not residing with the person in need of care.  According to section 13(1)the Schedule, caregiver benefits are available if at the time of the accident:

1. the insured person was residing with a person in need of care, and
2. the insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities. (emphasis added)

TD General noted that not only did Ms. Rampersaud not live in the same apartment as her parents, she lived on a different floor as their apartment.  TD General did concede that Ms. Rampersaud had moved into her apartment with the intention of providing caregiver services in proximity to her parents.Whether Ms. Rampersaud’s mother was “a person in need of care” and whether Ms. Rampersaud was her mother’s primary caregiver were not at issue during the preliminary issue hearing.  The only issue to be determined was whether Ms. Rampersaud was “residing with” her mother.

Arbitrator Wilson noted that “residing with” is not defined in the Schedule or the Insurance Act.  In his decision, Arbitrator Wilson looked at both English and French dictionary definitions of “reside.”  He also noted that residence is often compared and contrasted with “domicile.”  Finally, Arbitrator Wilson looked at the legislative purpose that gives context and meaning to the words “resides with,” which is the accident benefits system as a whole.  He noted that it is accepted that the legislation giving access to the accident benefits system is a form of consumer protection, and should be liberally interpreted.  Ambiguous words should be given their plain and ordinary meaning.

To determine the plain and ordinary meaning of residence, Arbitrator Wilson relied on tax court decisions.  He quoted the decision in Lapierre v. The Queen, 2005 TCC 720, where Dassault J. found:

To reside with someone is to live or stay with someone in a given place with a certain constancy, a certain regularity or else in an habitual manner.

Although living in a separate apartment, Ms. Rampersaud cared for her parents before and after work, and on the weekends.  There is also a noted that she assisted her father in dealing with her mother in her absence, though it is not clear what assistance was provided.  Ms. Rampersaud maintained her own apartment for herself and her two children, but it is not clear how much care (if any) her children required.  Her parent’s apartment was too small to accommodate herself and her children.  Ms. Rampersaud’s mail was sent to her apartment, not her parents’ apartment.Arbitrator Wilson further relied on Dassault J’s decision to find that determination of whether or not Ms. Rampersaud was “residing with” her mother was a question of fact to be determined in the context of time, object, intention and continuity.

Arbitrator Wilson did not accept TD General’s argument that the postal address necessarily governs residency.  He pointed out that the opposite argument was not true, that separate and different residences or domiciles with the same address can and do exist.  Arbitrator Wilson used that evidence, to support his implied conclusion that different addresses for one residence was also possible.

Arbitrator Wilson also noted that it made sense for Ms. Rampersaud to maintain her own postal address for the future, once she was no longer required to give care to her mother (implying that she did not reside at all in her own apartment with her children at the time of the accident).  He noted that a speculation could be made that if the family had the financial resources, they would live in an extravagant estate in a posh neighbourhood, and there would be no question that they were “residing with” each other.

Since TD General had accepted that Ms. Rampersaud moved into her apartment to be near her parents to provide them with care, Arbitrator Wilson determined that by making the move, Ms. Rampersaud “sojourned, stayed, dwelt, or abide” with a person in need of care for an indeterminate time on a sustained basis.  Arbitrator Wilson concluded that Ms. Rampersaud was “residing with” her mother, even though she would ultimately return to her own apartment in the same building.  Specifically, Arbitrator Wilson found:

Consequently, I accept that such a liberal interpretation of “reside” meets with the social welfare and consumer protection aspects of the Schedule. Under such an interpretation Ms. Rampersaud clearly “resided” with her parents at the time of the accident, as that term is used in the Schedule, and I so find.

So in conclusion, since the determination is a matter of fact, Arbitrator Wilson was able to liberally interpret the Schedule and ultimately determine that you do not necessarily need to live in the same residence to be “residing with” someone for the purposes of the Schedule.  So different apartments in the same building can be “residing with,” but what about living in townhouses in the same complex, or in semi-detached houses, or in detached houses beside each other, or on the same street, or in the same neighbourhood?  This decision opens the door for many more liberal interpretations of “residing with” in the future.