- Dependency benefits (common law spouse)
- Dependency benefits (survivor)
The worker was diagnosed with malignant mesothelioma, and passed away on April 15, 2020 as a result of this disease. The WSIB accepted entitlement to the diagnosed mesothelioma due to the worker's occupational exposure to asbestos. The issue under appeal was entitlement of the appellant, as the worker's spouse, to survivor benefits under the deceased worker's accident claim.
The Panel allowed the appeal.Section 2 of the WSIA and Operational Policy Manual, Document No. 20-01-02, provide that a spouse is someone with whom the person is living in a conjugal relationship outside marriage, including if two persons have cohabited for at least one year. To decide whether they had cohabited for at least one year, the Panel considered factors well set-out in Molodowich and M. v. H. The test to be applied to determine if the statutory requirement of "living in a conjugal relationship" and "cohabitation" is multifactorial and flexible. There is no "bright line" test (see Decision No. 2621/07). Based on a consideration of the factors, the evidence indicated that the appellant and the worker had cohabited for at least one year. Since they became a couple in September 2014, the worker visited the home country twice per year for several months at a time, living with the appellant; and the appellant visited Canada twice per year for several months, and lived with the worker. From mid-2014 to the time of the worker's death in April of 2020, the cumulative time spent cohabiting likely exceeded one year.The Panel considered it significant that hospice records indicated that during the worker's final months, the appellant was by his side, performing the duties that a spouse would perform such as speaking with health care providers and providing consent to treatment. Further, after his death, the appellant made and paid for the worker's funeral arrangements. While these actions would also be consistent with her role under the Power of Attorney and as Trustee of the estate, the Panel found it significant that there was independent documentary evidence that the appellant was regarded as his spouse by hospice staff, and as his common-law spouse by funeral home staff. The Panel also noted that the appellant was found to be entitled to CPP benefits as the surviving spouse of the worker. This indicated that another level of government had found the appellant to be the surviving spouse of the worker, based on essentially the same evidence that this Panel considered, applying statutory criteria that are similar to the criteria in the WSIA (see Hodge).