February 11, 2015

SABS Update: “The Primary Caregiver”: Can It Be Both Parents?

Saleh v State Farm Mutual Automobile Insurance Company, FSCO A12-007868, Adjudicator Robert Bujold

MVC July 24, 2009. Mr. Saleh claimed a weekly caregiver benefit in the amount of $300 per week in respect of his two children, Youssef and Mariam, who were 5 and 3 years old respectively at the time of the collision. In order to qualify for this benefit, Mr. Saleh needed to establish that he was “the primary caregiver” for Youssef and Mariam at the time of the collision, and that as a result of the collision, he suffered a “substantial inability to engage in the caregiving activities in which he engaged at the time of the accident”.

Adjudicator Bujold concluded that while the evidence showed that Mr. Saleh was a devoted father and the family’s breadwinner, it failed to establish that he was “the primary caregiver” for his two children. As a result, he was not entitled to a weekly caregiver benefit.

At the time of the collision, Mr. Saleh was employed full-time as a limousine driver by a company owned by his wife. The company owned one limousine, and it was operated by Mr. Saleh. He testified that he worked about 40-50 hours per week, although he did report working longer hours in two assessments conducted on his behalf. He also testified that there were some days when he would work less, and some days when he did not work at all. Mrs. Saleh performed an administrative role for the company, which took up about 20 minutes per day.

Mr. Saleh testified that while he worked full-time, he was still able to spend a lot of time at home. The nature of his job was that if he was not attending a pre-arranged fare, he was at home. He testified that he was very involved with his children, and that him and his wife shared responsibility for them. When asked who was primarily responsible, he responded “both of us”. He stated that he helped feed, dress, and bathe the children, and he read to them and helped them with their homework. He would also take them for walks and drive them to various activities like swimming, skating, and hockey. He also drove Youssef to school and picked him up, although he admitted that Mrs. Saleh did this more often than he did. He also testified that he was generally able to do more with the children on weekends than weekdays.

Mrs. Saleh testified that she spent all of her time “working for her children, her husband and her home”. Aside from the administrative role she performed for the company, she would also go to the Mosque about twice a week, which meant she was away from the children about 4 hours per week. Mr. Saleh took care of the children during those times. She agreed that while Mr. Saleh would sometimes help with the bathing and dressing of the children, she engaged in these tasks more than he did, and was primarily responsible for meals. She testified that in general, when she and her husband were both at home, they shared the responsibility of their children.

Adjudicator Bujold concluded that although Mr. Saleh worked hard to provide for his family and was an involved father, it was Mrs. Saleh who was “the primary caregiver” to the children. Although they had different roles and responsibilities when it came to providing for the family, looking after the children constituted a larger portion of Mrs. Saleh’s average day, while working to support the family constituted a larger portion of Mr. Saleh’s time. While Mrs. Saleh’s caregiver contributions may not have greatly exceeded those of Mr. Saleh, she clearly contributed more.

 

COMMENTS AND IMPLICATIONS

The Regulation requires the recipient of a caregiver benefit be “the primary caregiver for the person in need of care”. It begs the question, what is meant by “primary”? Is it only a time-invested test? Is quality of the activity a concern? Is passive care as compared to active care accorded any different treatment? How will this test be evaluated where there are two parents employed full time- one on days and the other on nights? A very careful evaluation at the time of electing which benefit to apply for will be needed in such cases.

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