In order to obtain survivor benefits under a motor vehicle policy issued by the Saskatchewan Government Insurance Company for the death of a former spouse, the surviving spouse must prove that there is a valid spousal agreement in place at the time of the deceased’s death. An obligation to pay spousal support is not sufficient to entitle the surviving spouse to benefits.

17. November 2005 0

Falasca (Litigation Guardian of) v. Saskatchewan Government Insurance, [2005] S.J. No. 802, Saskatchewan Court of Queen’s Bench

Ms. Falasca cohabited with the deceased insured from 1990 until approximately July of 2001. A child was born into the relationship. The insured was killed in an automobile accident on November 26, 2003. Ms. Falasca applied to the Saskatchewan Government Insurance Company (“SGI”) for death benefits pursuant to the deceased’s policy of automobile insurance. Ms. Falasca was denied status as a surviving spouse pursuant to the policy, benefits were further denied to the child.

Ms. Falasca commenced an action against SGI for payment of surviving spouse benefits. The main issue at trial was whether Ms. Falasca qualified as a surviving spouse within the meaning of s. 2 of the Automobile Accident Insurance Act, R.S.S. 1978 (the “Act”). S. 2(1) states:

2(1) In this Act

(rr) “spouse” means:

(i) the spouse of the insured who is, at the date of the accident, residing with the insured; or

(ii) a person with whom, at the date of the accident, the insured is cohabiting and has cohabited as a spouse:

(A) continuously for a period of not less than two years; or

(B) continuously for a period of not less than one year, if they are parents of a child;

(ss) “surviving spouse” means a spouse of an insured and includes a former spouse of an insured who, at the date of the accident:

(i) had been living separate and apart from the insured for one year or less;

(ii) was receiving spousal support from the insured; or

(iii) had a court order or agreement with the insured entitling that person to spousal support from the insured.

Ms. Falasca would be entitled to benefits if she could establish that she was a former spouse of the insured for a period of in excess of a year and that she was receiving spousal support from the insured, or had a court order or agreement with the insured entitling that person to spousal support.

At trial, Ms. Falasca testified that in 2001, after her relationship with the deceased ended, the deceased paid her money whenever she would phone and ask him for assistance. In addition, she commenced proceedings under the Family Maintenance Act in which she claimed, amongst other things, custody of the child and spousal support of $300 per month. Shortly after the proceedings were commenced, the deceased contacted Ms. Falasca and asked her, “Why are you doing this to me? I help you all the time and will continue to do so. Lawyers are expensive. I am having enough financial problems.” Ms. Falasca testified that her response was to the effect that she guessed that there was no need for her to pursue her action since the deceased was in fact helping her. Ms. Falasca was able to establish a variety of sporadic payments to her from the deceased. Although Ms. Falasca did not pursue her petition under the Family Maintenance Act, the deceased filed papers opposing the claim for spousal support, and the claim for an equal division of family property. Based on the deceased’s opposition to the claim of spousal support, Sandomirsky J. noted that it could be assumed that the deceased was personally aware of, and intended to contest, Ms. Falasca’s claim for spousal support.

Four letters were exchanged between Ms. Falasca’s lawyer and the deceased’s lawyer with respect to the issue of spousal support. The letters clearly indicate that there was no agreement by the deceased and Ms. Falasca to pay spousal support, and that there was no money paid by the deceased to Ms. Falasca during the course of the six month correspondence that covered those letters.

Sandomirsky J. determined that an agreement requires a consensus ad idem or a meeting of the minds. The evidence did not support Ms. Falasca’s contention that the deceased had agreed to pay her spousal support. To the contrary, it appeared that the deceased disagreed and resisted entering into an agreement of a spousal support with Ms. Falasca.

Sandormirsky J. noted that the Act requires “an agreement with an insured entitling that person to spousal support from the insured”. Such agreement, whether written or verbal, must oblige the insured to pay spousal support and create for the former spouse a reciprocal entitlement enforceable at law. No such agreement existed between Ms. Falasca and the deceased at any time, let alone at the day of the accident. The determination of Ms. Falasca’s claim does not require determination of whether she is entitled to spousal support as a matter of law. The issue to be decided is whether such an agreement was in place at the time that the deceased was killed. Sandomirsky J. concluded that the ad hoc payments of money did not establish that spousal support was being received, nor did the evidence support the finding that an agreement existed which would have obliged the insured to pay spousal support to the Plaintiff. Therefore, the Plaintiff’s claim was dismissed.

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