Highlights of Noteworthy Decisions

Decision 3291 16
J. Noble - B. Wheeler - M. Ferrari
  • Dependency benefits (common law spouse)
  • Words and phrases (conjugal relationship)

The worker was a firefighter from 1976 to 1988. He was diagnosed with a brain tumour in 1988 and died in 1990. In 2006, the Board granted entitlement for the brain tumour, with an accident date in 1988. The Board paid $74,000 in benefits to the estate. The Board also determined that the surviving spouse was entitled to $392,000 of survivor benefits. The employer appealed the determination regarding the surviving spouse, and the Appeals Resolution Officer found that the woman was not a spouse. The woman appealed to the Tribunal.

The Act and Board policy provide that a spouse includes a man or woman who, at the time of the death of the one who was the worker, was not married to the other but had cohabited for at least one year. The test for cohabitation has been accepted as requiring living together in a conjugal relationship, which includes matters such as financial interdependence, sexual relationship, common principal residence and shared obligations regarding the home.
The Panel reviewed the evidence and concluded that the appellant had not cohabited with the worker for at least one year at the time of his death in a conjugal relationship: the appellant and the worker had their own separate residences; they did not share the majority of household expenses; they filed tax returns as single persons; the appellant was not covered by any of the worker's benefits; the appellant did not change the address on her driver's licence; a contemporaneous social work report indicated that the worker was divorced and lived alone, and that he had a girlfriend; permission for an autopsy was obtained from the family, not from the appellant; the worker did not name the appellant as a beneficiary in his will; an addendum to the will left a small amount to the appellant, whom he described as his lover, confidant and best friend; the worker's sister testified that when she cleaned out the worker's apartment after his death, there was no evidence that the appellant was living there.
The appellant was not a spouse, and was not entitled to survivor benefits. The appeal was dismissed.