Canada: Care Provided By Stay-At-Home Parent Was Not "Incurred"

Last Updated: December 10 2014
Article by Danielle M. Gauvreau

On October 31, 2014, Arbitrator Fadel released his decision in Josey and Primmum Insurance Co.1 In this case, the sole issue was whether the Applicant was entitled to attendant care benefits.

It was agreed that the Applicant required attendant care as a result of the injuries he sustained in the motor vehicle accident on December 11, 2011.  The quantum of the attendant care benefit, if payable, was also not in dispute.  The issue was whether the Applicant had satisfied the definition of "incurred" expenses as found in Section 3(7)(e) of the Statutory Accident Benefits Schedule—Effective September 1, 20102 ("2010 Schedule").

The Applicant received attendant care services from his spouse, who acted as a full-time caregiver to their three children before the motor vehicle accident.  As such, the Applicant argued that his spouse was a person who provided care in the course of her "employment, occupation, or profession", as per Section 3(7)(e); i.e. that his spouse was a professional care provider.  Therefore, he argued that he was entitled to the attendant care benefits claimed without being required to prove economic loss. 

The Insurer argued that the Applicant's spouse's pre-accident activities could not be described as "employment, occupation, or profession" and therefore, for the Applicant to satisfy the definition of "incurred", he had to demonstrate that his spouse had sustained an economic loss.  In other words, she was not a professional care provider.

In this case, it was agreed that the Applicant's spouse had not sustained an economic loss.  As such, if she was not a professional care provider, the definition of "incurred" would not have been satisfied.

Arbitrator Fadel noted that the 2010 Schedule represented a significant shift in how attendant care benefits were payable, as compared to the prior Schedule.  The prior Schedule did not require the use of professional care providers or proof of economic loss.

In interpreting Section 3(7)(e), Arbitrator Fadel stated that a plain reading of the provision required that a professional care provider (usually an arm's length individual) be reimbursed for services provided in the course of  his/her employment, occupation, or profession.  This implied that remuneration was an aspect of that service.  Also, the provision made clear that the intention was that family members must prove that they had sustained an economic loss in order to be reimbursed for attendant care services from the insurer.

Arbitrator Fadel opined that if a family member was trained and/or working as a professional in the health care industry, attendant care benefits would be payable for any work he/she did for the insured person "in the course of the employment, occupation, or profession in which he or she would ordinarily have been engaged, but for the accident."

Arbitrator Fadel agreed with the Insurer that the 2010 Schedule did not contemplate that a stay-at-home parent would be considered someone providing attendant care services in the course of their employment, occupation, or profession.  This was not the intent of the Legislature, especially given the requirement in Section 3(7)(e) that a family member must prove an economic loss. 

As the Applicant's spouse was not a professional care provider and had not sustained an economic loss, Arbitrator Fadel therefore found in favour of the insurer and dismissed the Application.

This decision offers further clarification regarding "incurred" expenses pursuant to Section 3(7)(e) of the 2010 Schedule.  It is not enough for an insured person to demonstrate that he or she received attendant care services that were reasonable and necessary. 

This decision highlights the need for documentation to be requested by insurer in support of an attendant care claim to ensure that the expenses have been "incurred".  For claims governed by the 2010 Schedule, the insured person must demonstrate that the care was provided by either a professional care provider in the course of his or her employment or by a friend or family member who sustained an economic loss.


1.FSCO A13-005768 (Arbitrator Fadel, October 31, 2014).

2.O Reg 34/10.

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