E.R.J. v. Aviva Insurance Company of Canada, 2011 ABQB 395

Court of Queen ’ s Bench of Alberta Citation: E.R.J. v. Aviva Insurance Company of Canada, 2011 ABQB 395 Date 20110627 Docket: 0801 12750 Registry: Calgary Between: E.R.J., by his Guardian and Alternate Trustee L.S.J. and the said L.S.J. Plaintiffs/Respondents - and - Aviva Insurance Company of Canada Defendant/Applicant Restriction on Publication: No one may publish any information serving to identify a child or guardian of a child who has come to a Minister ’ s or a director ’ s attention under the Child, Youth and Family Enhancement Act .

See the Child, Youth and Family Enhancement Act , s. 126.2. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.T. McCarthy _______________________________________________________ I. Introduction

[ 1 ] This case involves the contractual

interpretation of

Section 1(

b) of the Alberta S.E.F. No. 44 Family Protection Endorsement (“SEF 44 Endorsement"). [ 2 ] The Respondent/ Plaintiff, E.R.J., was severely injured when he was struck by a motor vehicle while crossing the street. His mother, L.S.J. (“Ms. J.”), commenced an action on his behalf claiming relief as a “dependent relative” under the SEF 44 Endorsement to her motor vehicle insurance policy. The Applicant, Aviva Insurance Company of Canada (“Aviva”), the insurer under Ms.

J.’s policy, seeks a declaration that E.R.J. is not entitled to receive benefits as a “dependant relative” pursuant to the policy. [ 3 ] For the reasons that follow, I am unable to find that E.R.J. qualifies as a dependant relative as defined in the SEF 44 Endorsement. II. Facts [ 4 ] On October 19, 2006, at approximately 8:45pm, E.R.J. was walking across McKnight Boulevard at the intersection of Trafford Drive N.W., when he was struck by a motor vehicle owned and operated by K.A.S..

E.R.J. suffered numerous injures as a result of the accident including; open fracture of his tibia, multiple rib fractures, shoulder injuries, and a severe traumatic brain injury. At all material times, Ms. J. held a valid SEF 44 Endorsement with Aviva. E.R.J.’s mother is now his Legal Guardian and Joint Trustee pursuant to the Dependant Adults Act , R.S.A. 2000, c. D-11 . [ 5 ] E.R.J. was 19 years old at the time of the accident. III. Background [ 6 ] E.R.J.’s life prior to the accident was not without turbulence.

He was raised in an unstable household, left home at the age of 13, and spent the majority of his teenage years moving between his step-grandfather’s home, his father’s home, various youth shelters, group homes, and semi-independent living arrangements. While E.R.J. returned to Ms. J.’s home for brief periods in 2002, he did not live at home permanently between that time and the date of the accident. [ 7 ] Throughout his life, E.R.J. has struggled with behavioural and mental health issues.

In 1992, at the age of 5, he was diagnosed with severe Attention Deficit Hyperactivity Disorder (“ADHD”), a co-morbid conduct disorder (defiant, impulsive, or antisocial behaviour), and a possible co-morbid learning disability. In 1999, at the age of 13, he was diagnosed with Attention Deficit Disorder (“ADD”), a possible anxiety disorder, and some obsessive-compulsive behaviors. In 2000, he was diagnosed with Oppositional Defiant Disorder. [ 8 ] In 2002, he was detained at a juvenile detention centre after an altercation with his mother’s boyfriend.

Following the incident, Youth Forensic Psychiatric Services confirmed E.R.J. as having features of a Generalized Anxiety Disorder with an underlying chronic Dysthymia and some probable residual effects of ADHD. [ 9 ] In March 2003, at the age of 16, E.R.J. was further diagnosed with a conduct disorder, parent-child relational problems, a major depressive disorder, substance abuse in remission as well as severe psychosocial stressors.

In 2005, an incomplete assessment indicated that E.R.J. had problems with emotional and adaptive distress on a daily basis. [ 10 ] A medical assessment completed in February 2006 found that there was no indication of an Axis I diagnosis (i.e. no psychiatric diagnosis), but that E.R.J.’s issues appeared to be psychosocial. [ 11 ] Between the ages of 13-19, in the midst of the aforementioned behavioral/health issues and problems at home, E.R.J. relied heavily on Child Welfare programs for both financial and emotional support.

[ 12 ] In February 2004, E.R.J. signed a custody agreement with the Director of Child Welfare indicating that he wished to become a ward of the Government and no longer wished to be taken care of by his mother. As a ward of Child Welfare, E.R.J. received Supported Independent Living Assistance as well as housing aid. [ 13 ] In January 2005, E.R.J. was granted an extension of financial services to provide him with financial support past his 18 th birthday.

The extension was intended to provide E.R.J. with additional time to complete his high school education and to facilitate his transition towards independent living. This support was terminated in August 2006 when Child Welfare determined that E.R.J. was able to provide for himself in a positive manner and closed his file. [ 14 ] At the time of the accident E.R.J. was employed and living independently in an apartment shared with a roommate. IV. The SEF 44 Family Protection Endorsement [ 15 ] The relevant sections of the SEF 44 Endorsement are as follows: 1(

b) The term “dependant relative” means: i. a person, 1.

Under the age of 18 years who resides with the named insured and is principally dependent upon the named insured or the spouse of the named insured for financial support, 2. 18 years of age or over who, because of mental or physical infirmity, is principally dependent upon the named insured or the spouse of the named insured for financial support; or 3. 18 years of age or over who, because of full-time attendance at a school, college or university, is principally dependent upon the named insured or the spouse of the named insured for financial support. [ 16 ] E.R.J. cannot seek relief under s.1(b)(i)(1) or (3) as he was over the age of 18 at the time of the accident and was not attending school on a full time basis.

V. Issue(

s) Whether E.R.J., prior to the accident, was principally dependent upon Ms. J. for financial support as a result of a mental or physical infirmity pursuant to s.1(b)(i)(2)? VI. Parties’ Positions [ 17 ] Physical infirmity is not an issue in this case. In order to succeed in their application, Aviva must establish; (1) that E.R.J. was not principally dependent upon Ms. J. or (2) that his dependence was not the result of a mental infirmity. [ 18 ] The Applicants submit that E.R.J. does not qualify for coverage as a dependent relative under the SEF 44 Endorsement as he

was not principally dependent upon Ms. J. for financial support. They argue that E.R.J. was living a relatively independent life at thetime of the accident. He held a full-time employment position with C.M., was living independently, and no longer relied on funding fromChild Welfare. Any prior behavioral, emotional or financial dependency had been resolved by Child Welfare and the Youth Transition toAdulthood program - not E.R.J.’s mother.

Based on these facts, E.R.J. was not principally dependant upon his mother. [19] The Respondents claim that E.R.J. was dependant upon his mother and that this dependency was the result of a mentalinfirmity. Although E.R.J. did not live with his mother, she supported him both financially and emotionally in other, less tangible waysincluding encouraging his independence, helping him set up a joint savings account, and assisting him with transportation toappointments, errands, and family events. In addition, Ms.

J. helped her son with moving, improving his resume and purchasing itemssuch as clothing for interviews and work. [20] The Respondents argue that once E.R.J.’s government support services were terminated, he became more dependant upon hismother. He called more frequently and requested more financial assistance. While he was working full-time at the time of the accident,he had only held the position for four weeks - a duration, they argue, that is insufficient to support a finding of financial independence. [21] The Respondents attribute E.R.J.’s dependency to longstanding mental health issues.

They claim that evidence of E.R.J.’smental infirmity includes diagnoses of ADHD, conduct disorder, obsessive compulsive tendencies, generalized anxiety disorder,paranoid thoughts & abnormal behavior, and an inability to live at home, maintain employment and complete school. VII. Discussion and Analysis [22] In Jager v. Liberal Mutual Fire Insurance Co. (1996), 198 A.R. 68 at para. 45, the Court stated that contra proferentumshould be applied against the insurer of the SEF 44 Endorsement and undertook to interpret the endorsement in the widest sensereasonable. I have adopted this approach. 1.

Was E.R.J. principally dependent upon Ms. J.? [23] In Wormell v. Royal Insurance Co. of Canada (2001), (NB KB), 234 N.B.R. (2d) 236 at 16., the Courtconsidered the meaning of “principally dependent”: For a person to be principally dependent on another person it is necessary to establish more than some degree of dependence.

Thedependence that must be proven to justify that a person is principally dependent on another is such that establishes that the dependenceupon that person is greater than on another or other sources of dependence. [24] The question of financial dependence is one of fact that cannot be confined to a pure financial calculation. In Miller v.

SafecoInsurance Co. of America (1985), (ON CA), 50 O.R. (2d) 797, the Ontario Court of Appeal found that the factors toconsider in determining the issue of dependancy include the amount and duration of the financial or other dependency, the financial orother needs of the claimant, and the ability of the claimant to be self-supporting. Miller was subsequently endorsed by the Alberta Courtof Queen’s Bench in Jager. The amount and duration of the financial or other dependency: [25] While Ms. J. may have provided occasional assistance to E.R.J., their relationship was not one of dependence.

For the durationof his teenage years, E.R.J. was primarily dependent upon funding provided by Child Welfare, the Youth Transitions to Adulthoodprogram and supplementary income from his employment. [26] In addition to financial support, E.R.J. relied on support services for guidance. When he became a ward of Child Welfare in2004, a caseworker from Alberta Children’s Services assumed responsibility for E.R.J.’s guardianship and she became a key person inhis support network. E.R.J. also received one-on-one support through the Youth Transitions to Adulthood program. These services

provided E.R.J. with support for everything from housing arrangements to counseling, life planning and goals, budgeting and financialplanning, and employment services. [27] In Esquimaux (Litigation Guardian of) v. Pafco Insurance Co. (1996), (ON SC), 28 O.R. (3d) 517, theOntario Court of Justice dismissed an application made on behalf of infant plaintiffs where the children were in the care of the Children’sAid Society at the time of their mother’s death and were not principally reliant on the deceased for financial support at the time of theaccident. A similar principle applies here.

Any dependency (financial or otherwise) that E.R.J. may have had in the years leading up tohis accident was upon others, not Ms. J.. [28] At the time of the accident, E.R.J. had not lived with his mother for at least five years. The Respondents argue that whileE.R.J. did not live in the family household, the fact that he was always welcome and knew where the emergency key was is indicative ofdependence. With respect, an open invitation does not constitute dependence. Although Ms.

J. maintained a connection with her son andoffered emotional support and direction intermittently throughout his teenage years, E.R.J. relied more heavily upon social services andwas not principally dependant upon Ms. J. for financial or non-financial support. [29] The Respondents’ also allege that E.R.J. became more dependant upon Ms. J. in August 2006 when Alberta Children’sServices discontinued E.R.J.’s funding. In support of their argument, the Respondents point out that during this period, E.R.J. increasedhis calls to Ms.

J. for support and errands, lost his job, was taken advantage of financially by his roommate, borrowed between $800-$1000 from Ms. J., moved and set up a new living situation with the assistance of Ms. J., and had limited savings. While these factors areevidence of unfortunate and difficult circumstances, the issue is whether E.R.J. was in a dependent relationship with his mother. Whenweighed against other evidence of independence including the fact that E.R.J. was employed on a full-time basis, was not living at home,and was not receiving regular financial support from Ms.

J., it is clear that the amount and duration of E.R.J.’s financial or otherdependency upon Ms. J. was not significant. The financial or other needs of the claimant: [30] There is no evidence that E.R.J. had any extraordinary financial or other needs that stretched beyond his means. While E.R.J.faced some emotional and behavioral challenges, his needs were no greater than the average young adult trying to find his way in life. Hewas not attending school at the time of the accident. The ability of the claimant to be self-supporting: [31] E.R.J. led a relatively independent life.

While his employment history is admittedly spotted (he held six different jobs in2006), he was able to support his day-to-day needs. At the time of the accident, E.R.J. was working full time at C.M.. Although he hadonly been in this position for four weeks, he was nonetheless independently supporting himself and was not receiving regular supportfrom either Ms.

J. or social services. [32] A report completed by McMan Youth, Family and Community Services in September 2006 (just one month prior to theaccident) found that E.R.J. was proficient in managing his financial and day-to-day affairs. [33] The Respondents submit that Ms. J.’s provision of an opportunity to earn money from her or to borrow money instead ofbeing given money, was a parenting decision given E.R.J.’s infirmity. They argue that E.R.J.’s and Ms.

J.’s relationship is analagous tothe monetary support provided by the parents in Jager where the Court expanded the definition of dependency to include the concept ofparents acting as a “financial safety net”. I disagree. The broader context of the Jager case differs significantly from the facts of this case.In Jager, the plaintiff had an agreement with her parents that she would contribute to her own living costs during times when school wasout of session. It was her parents, however, who ultimately ensured that her monthly living situation was secure.

By contrast, there wasno such agreement between E.R.J. and his mother. While E.R.J. shared a joint bank account with his mother until shortly before theaccident, she did not put money in the account on a regular basis. Moreover, on October 17, 2006, E.R.J. and his mother withdrew all ofthe funds from the joint account with the intention of closing it. These facts, in addition to E.R.J.’s prior dependency on Child Welfareand independent lifestyle, are inconsistent with a relationship of dependance.

[34] E.R.J.’s dependence upon his mother was no greater than other sources of dependence. He was not ‘principally dependant’upon Ms. J. at the time of the accident. 2. Was E.R.J. mentally infirm? [35] While E.R.J. faced certain challenges in his life, there is insufficient evidence to support a finding of mental infirmity at thetime of the accident. [36] In Tomlinson v.

Prudential Insurance Co. of America, [1954] O.R. 516, the Ontario Court of Appeal, stated that: ...the word infirmity must be taken in its ordinary sense to mean physical weakness, debility, frailty or feebleness of body resulting fromconstitutional defect. [37] While proof of a mental infirmity does not require a medical diagnosis, the trier of fact must find that the claimant is inabnormally poor health or of deteriorated vitality: Mahoney v. R, (TCC), 2002 D.T.C. 2203, [2003] 1 C.T.C. 2694 atpara. 38. [38] In Borden v.

Canada, 2003 TCC 297, the Court found that the applicant’s son fell within the definition of mentally infirm.While the Court commented that the case was a “close call”, they placed weight on the claimant’s medical diagnosis of paranoidpsychosis and irregular behavior including threats to kill, fear of others, and threats to family.

The Court also noted that the claimant’sinfirmity prevented him from working. [39] While E.R.J. has received a number of diagnoses over the years and has faced significant challenges in his relationships withfamily, addiction, and behavioral needs, his mental health was relatively stable in the months leading up to the accident. A medical reportcompleted on June 9, 2006, noted that there did not appear to be any mental health issues or concerns and recommended that E.R.J.’s filebe closed.

The report also noted that E.R.J. felt that his life was on track and that he did not feel that therapy was appropriate for him atthat time. He was not on any medication immediately prior to the accident. [40] E.R.J. was not in abnormally poor mental health at the time of the accident. Unlike the claimant in Borden, E.R.J. was nottransient, was employed and able to care for himself, and was not considered a threat to himself or others. [41] The preponderance of the evidence indicates that while E.R.J. faced certain challenges, he was not mentally infirm. VIII.

Conclusion [42] Aviva’s application for a declaration that E.R.J. is not a “dependant relative” pursuant to

Section 1(

b) of the SEF 44Endorsement is granted. [43] The parties may make an appointment to speak to costs. Heard on the 28th day of April, 2011. Dated at the City of Calgary, Alberta this 24th day of June, 2011.

J.T. McCarthy J.C.Q.B.A. Appearances: Patricia M. Gutek for the Plaintiffs/Respondents Marney Lutz for the Defendant/Applicant