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This policy applies if the injury or disease that resulted in the worker's death occurred on or after January 1, 1998.
Law
s.48(7)
A separated or same-sex spouse is entitled to a lump sum payment and periodic payments as a surviving spouse if
immediately before the worker's death, the worker was required to make support payments under a separation agreement or court order, or
despite the absence of a separation agreement or court order, the spouse was dependent on the worker at the time of the worker's death.
NOTE
For deaths occurring on or after March 1, 2000, all references to "spouse" in this document are also meant to refer to "same-sex partners". See 20-01-02, Definitions and Application Dates.
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Guidelines
Entitlement criteria
A separated spouse's entitlement to survivors' benefits is established only by a separation agreement or court order that required the worker to make spousal support payments, or if no such document exists, evidence that the spouse was financially dependent on the worker at the time of the worker's death.
Types of support
A separation agreement or court order can require spousal support, child support, or both.
NOTE
If only child support payments are identified in the separation agreement or court order, the separated spouse is not entitled to benefits. Payment, however, can be made to the spouse because of the child or children (see 20-03-06, Spouse or Same-sex Partner with One or More Children).
Financial dependency
A separated spouse may demonstrate evidence of financial dependency (EFD) by substantiating that, at the time of the worker's death, the worker had been making regular payments for ongoing expenses to the spouse. These payments could have been for
basic necessities, such as food, utilities, shelter, and clothing, and/or
other expenses, including medical, dental, recreational, and educational services.
Apportionment of survivors benefits
If there is more than one spouse entitled to compensation, the WSIB apportions survivors' benefits where the total entitlement between spouses exceeds 85% of the worker's net average earnings (see 20-03-09, Apportionment of Survivors' Benefits).
No other surviving spouse or child
If no other person is entitled to receive compensation as a spouse, and there are no surviving children, the separated spouse is entitled to the same compensation as a spouse with no children (see 20-03-04, Spouse or Same-sex Partner with No Children).
Separated spouse with children, and no other surviving spouse or children
If no person is entitled to receive compensation as a spouse, and there are no other surviving dependent children, a separated spouse with children is entitled to the same compensation as a spouse with children (see 20-03-06, Spouse or Same-sex Partner with One or More Children).
NOTE
The deceased worker did not have to comply with the agreement or court order for the separated spouse to be entitled to benefits.
Application date
This policy applies if the injury or disease that resulted in the worker's death occurred on or after January 1, 1998.
Document history
This document replaces 20-03-08 dated June 15, 1999.
This document was previously published as:
13.14 dated January 1, 1998.
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References
Legislative authority
Workplace Safety and Insurance Act, 1997, as amended
Sections 2(1), 48(2), (3), (4), (7), (8), (24)
Minute
Administrative
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