When a family member receives an income associated with" attendant care benefits, for their role in" caring for an injured child, is it simply an act of familial love" or a form of employment? This was the underlying question to be resolved in" arbitration between a mother providing 24-hour care for her catastrophically injured son and her insurer, in" T.C. and Personal Insurance Company of Canada.
On October 31st, 2012, the applicant's son" was involved in a very serious motor vehicle accident that caused life-threatening injuries. The boy's injuries subsequently resulted in his needing 24-hour attendant care and supervision. The applicant, referred to as T.C., provided said attendant care services for her son, which meant she was unable to return to her employment in the retail industry. As a result, she became entitled to income replacement benefits (IRB) and later received these benefits past the mandatory 104-weeks, due to a diagnosis of a major depressive disorder, as well as PTSD and an adjustment disorder. In February 2013, it was determined" that the boy" had sustained a catastrophic impairment pursuant to the statutory accident benefits schedule (SABS) and as a result, the insurer provided an attendant care benefit in the amount of $6,000 a month, which was paid" to his mother. In March 2013, the insurer reduced T.C.'s IRB payments to zero, on the basis that the $6,000 in attendant care benefits constitutes post-accident income. The insurer surmised that this monthly payment amounts to "income from self-employment" and thus needs to be deducted from the applicant's IRB payments. The applicant disagreed with the insurer and citing" Maurice v. The Queen" and" Pellerin v. The Queen," she argued that she was not self-employed and instead the money she received for taking care of her son was akin to gifts, inheritance or allowances between family members. Legal Background According to the SABS, an insurer can reduce the income replacement benefit provided to the insured if: one, the insured becomes employed after the accident and during the period in which he/she was eligible to receive income replacement benefit; or two, if the insured becomes self-employed after the accident and during the period in which he/she was eligible to receive income replacement benefit. " The SABS defines a self-employed person as an individual who "engages in a trade, occupation, profession or other type of business as a sole proprietor or as a partner" or "is a controlling mind of a business carried on through one or more private corporations some or all of whose shares are owned by the person". Therefore, the key issue for the arbitrator to decide on, was whether or not monies received for providing attendant care to a family member is considered post-accident income and as such, is deductible from the amount of the applicant's income replacement benefits. The arbitrator ruled in the applicant's favor and decided that monies received for providing attendant care to a child or family member do not constitute post-accident income. The arbitrator noted that for the applicant to be a self-employed person, she needed to be engaged in a type of business as a sole proprietor, which she wasn't. The arbitrator also challenged the insurer's argument that the money in the hands of a third-party provider would be considered income, by pointing out some key differences between the applicant and a third-party provider. These include:-
A caregiver's obligations are not limited to a maximum number of hours, as are a third-party provider.
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The applicant would likely provide the same level of care to her son, even if there was no attendant money available.
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The applicant never declared the attendant care payments on tax returns, as a third-party provider would, and she was not obligated to do so.
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The applicant has no flexibility in her hours, as her son needs her all the time.
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The applicant has never provided care to her son with the intent to make a profit.
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The arbitrator disagreed that s.3(7)(e) of the SABS suggests that the money was indeed income and added that if the Legislature intended for it to be, it would have stated so.
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