Where the plaintiff, whose husband was killed in a motor vehicle accident, subsequently gave birth to the couple’s son, the infant was deemed to have been born at the time of his father’s death. He was therefore a dependent in accordance with section 2(6) of the Statutory Benefits Schedule and entitled to the Death Benefit under the policy in force at the time.

Willard v. Zurich Insurance Company, [2004] O.J. No. 4388, Ontario Superior Court of Justice

On August 31, 1999, the Plaintiff’s husband was killed in a motor vehicle accident. His pregnant wife, who was not involved in the collision, gave birth to the couple’s son, Skeet Willard, approximately three weeks later. The Plaintiff was the owner of the vehicle involved in the accident and held a standard automobile policy with the Defendant, Zurich Insurance Company (“Zurich”). The Plaintiff was denied the Death Benefit on behalf of the child and therefore brought a motion by way of Special Case under Rule 22.

The issue was whether or not Skeet Willard, who was not born until after the accident in which his father died, was a “dependent” within the meaning of the Statutory Benefits Schedule (SABS) and was therefore entitled to receive a Death Benefit arising from the death of his father.

The definition of “insured person” in respect of a particular motor vehicle liability policy contained in s. 28 of the SABS includes “any dependent of the named insured, spouse or same-sex partner …”. Section 2(6) states that “a person is a dependent of another person if the person is principally dependent for financial support or care on the other person or the person’s spouse or same-sex partner”.

Zurich’s argued that since Skeet Willard was not born at the time of the accident that killed his father, he was not a person and could not therefore be “principally dependent for financial support or care” on either his mother or his father. The Plaintiff, Heidi Willard, relied on the legal proposition that certain rights vest to a fetus once it is born alive.

The legal proposition in question was discussed and applied by the Supreme Court of Canada in Montreal Tramway’s Company v. Leveille, [1933] S.C.R. 456 in which the Court found that the child who suffers injury while en ventre sà mere, has the right, after birth, to recover damages for the injuries sustained in its prenatal state. In rejecting the argument that an unborn child is a part of its mother, without separate existence, the Court said the following:

If a child after birth has no right of action for prenatal injuries, we have a wrong inflicted for which there is no remedy, for, although the father may be entitled to compensation for the loss he has incurred and the mother for what she has suffered, yet there is a residuum of injury for which compensation cannot be had save at the suit of the child.

This principle was contrasted with the decision in Dehler v. Ottawa Civic Hospital (1980), 29 O.R., (2d) 677 in which the Court dismissed an action commenced on behalf of a class of unborn persons who claimed injunctive relief to prohibit two Ottawa hospitals from performing therapeutic abortions. The dismissal was upheld by the Court of Appeal on the basis that a child is not, at law, an independent legal entity prior to its birth.

The law is clear that an unborn is not a “person” capable of asserting any legal rights prior to its birth (Dehler, supra). The law is equally clear that once born, the child can sue to recover damages for injuries sustained while it was a fetus: Montreal Tramways, supra, Dehler, supra.

The motions judge, Gauthier, J. in his reasons, suggested that the law is also clear that a child en ventre sà mere is entitled to maintain an action pursuant to section 61 of the Family Law Act for the death of its parent, if the child is subsequently born alive: Seed v. Delhey (1989), 70 O.R. (2d) 692, Garland v. Rowsell (1990), 73 O.R. (2d) 280.

In the cases relied upon by Zurich, where the unborn child was not entitled to claim under section 61 of the Family Law Act, the child had not yet been conceived at the time of the death or injury to its relative.

Applying this legal proposition to the present case, Gauthier, J. found that the child would have to be considered to have been born, at the date of the death of his father. He would be a “person” at the time of the death of his father as a result of his subsequent live birth. To conclude that Skeet Willard was not a “person” on the date of the death of his father, notwithstanding that he was born alive subsequent to the death of his father, would be to either disregard the legal proposition altogether, or to defeat the very purpose for which the proposition exists, namely, to deem the child to be born for all purposes when to do so is to the child’s benefit.

The second branch of Zurich’s argument was that the child did not meet the definition of “dependent” under the SABS.

Zurich relied on the decision in Vasey et al v. Economical Mutual Insurance Company (1986), 54 O.R. (2d) 692. In that case the Court concluded that an unborn child, subsequently born alive, was not a dependent under Schedule C of the Insurance Act. However, Gauthier, J. found that the decision upon which the Judge in Vasey, supra, relied was based on a conclusion that was reached with no consideration of the legal proposition. For this reason, Gauthier, J. concluded that the reasoning in Vasey, supra, was not persuasive. Gauthier, J. emphasized that the entire purpose of the proposition is to deem the child to be alive at the date of the event that triggers the benefit to the child.

Given that the proposition deemed Skeet Willard to be born on the date of the death of his father, the next question was whether he was “principally dependent for financial support or care on the other person or person’s spouse or same-sex partner”. Gauthier, J. concluded that the child would have been, on the date of the death of his father, dependent upon both of his parents, totally and completely, for financial support and care which entailed the provision of what is required for the health, maintenance, and wellbeing of the child. Gauthier, J. also held that specific exclusion of children in utero is required if they are not to receive death benefits in circumstances such as those of Skeet Willard.

Gauthier, J. therefore held that by virtue of the legal fiction, Skeet Willard was deemed to have been born at the time of his father’s death. He was clearly then a dependent in accordance with section 2(6) of the SABS and was therefore entitled to the death benefit. The child was asserting entitlement to a right that arose at the time of death of his father, but was inchoate until the moment of his birth. Such a conclusion was not an extension of the proposition, but rather the correct application of it.

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