Policy
Where a worker's death results from a work-related injury/disease and the deceased worker is survived by a spouse and one or more children, the surviving spouse is entitled to a lump sum payment, see 20-03-04, Spouse with No Children. The WSIB apportions periodic payments among the children, the spouse, and any other person who has the care and control of the children if
- the spouse and children do not live together, or
- the children are not in the spouse's custody or in the care and control of the spouse, or
- the children are in the spouse's custody but not in the spouse's care and control (see exceptions below).
Purpose
The purpose of this policy is to outline how the WSIB apportions periodic payments where a surviving spouse and the deceased worker's children do not live together.
Guidelines
When apportioning periodic payments, the WSIB considers whether the spouse has care and control of all the deceased worker's children. If the spouse does not, the WSIB determines whether those children
- live alone and are not in the care and control of another person, or
- live with and are in the care and control of another person, such as a grandparent.
The total amount of periodic payments must not exceed 85 per cent of the deceased worker's NAE.
NOTE
The deceased worker's earnings are subject to the statutory maximum, see 18-02-07, Calculating Net Average Earnings.
For information about when and how Canada Pension Plan (CPP) or Quebec Pension Plan (QPP) benefits impact periodic payments, see 20-03-03, Calculating CPP/QPP Offsets from Survivors' Benefits.
No children living with spouse
If there are no children of the deceased worker living with the spouse, the spouse is entitled to periodic payments as detailed in 20-03-04, Spouse with No Children.
Children living alone
If the children of the deceased worker are minors (i.e., under the age of 18) who live alone and are not in the care and control of another person, the difference between the amount of the ongoing periodic payments and 85 per cent of the worker's NAE is paid on their behalf. Payments may be paid to a child’s spouse, if not a minor, parent or guardian, or to the Accountant of the Superior Court of Justice.
Periodic payments paid on a child’s behalf cease when the child turns 19. However, if the child is continuing in education, the child may be entitled to receive periodic payments directly, see 20-03-12, Child 19 Years or Older Continuing in Education.
Example
NAE of $3,000 per month
43 year old spouse at the time of the worker's death
Two children who are minors and living alone
(85% x NAE) = maximum periodic payments payable per month
(85% x $3,000) = $2,550 per month
(40% of 85% of NAE) + ([1% of NAE] x # of years over 40) = spouse's periodic payment
(40% x $2,550) + ([1% x $2,550] x 3) = $1,096.50 per month
(85% of NAE) - (spouse's periodic payment) = periodic payment on behalf of the children
($2,550) - ($1,096.50) = $1,453.50 per month (shared by the children)
Children living with someone other than spouse
If the children of the deceased worker live with and are in the care and control of another person, periodic payments in respect of the children are paid to that person. To determine if children who live with another person are in that person's care and control, the WSIB considers whether that person
- attends to, provides for, and oversees the children's needs, and
- provides the children with emotional and financial support.
Periodic payments paid in respect of the children to someone other than a spouse cease when the children are no longer in the care and control of that person, or when the youngest child turns 19.
Example
NAE of $3,000 per month
43 year old spouse at the time of the worker's death
One child who is a minor and is living with a grandmother
(85% x NAE) = maximum periodic payments payable per month
(85% x $3,000) = $2,550 per month
(40% of 85% of NAE) + ([1% of NAE] x # of years over 40) = spouse's periodic payment
(40% x $2,550) + ([1% x $2,550 X] x 3) = $1,096.50 per month
(85% of NAE) - (spouse's periodic payment) = other person's periodic payment
($2,550) - ($1,096.50) = $1,453.50 per month
At least one child remaining with the spouse
If at least one child of the deceased worker remains with the spouse, but one or more do not, periodic payments in respect of the children not living with the spouse are apportioned. Periodic payments are based on evidence of financial dependency, but generally should not be less, per child, than 10 per cent of the deceased worker's NAE.
Periodic payments paid in respect of children to a spouse or someone other than a spouse generally cease when the children are no longer in the care and control of the spouse or other person, or when the youngest child in the spouse’s or other person’s care and control turns 19.
For information about how the spouse's periodic payment is determined when the youngest child turns 19, see 20-03-06, Spouse with One or More Children.
Child 19 years or older continuing in education
When a child of a deceased worker turns 19, periodic payments are no longer made in respect of that child unless the child is continuing in education and the WSIB considers it advisable to do so, see 20-03-12, Child 19 Years or Older Continuing in Education.
Exceptions
Children's Aid Society (CAS)
If the surviving spouse loses custody of the child of the deceased worker to the CAS, the WSIB determines whether the child has been proclaimed a ward of the Society or of the Crown.
If the child is made a ward of the Society, the loss of custody is considered temporary and the spouse's periodic payment continues as is.
If the child is made a ward of the Crown, or is adopted, the spouse is entitled to periodic payments the same as a spouse with no children based on the spouse's age at the time the child becomes a ward of the Crown, see 20-03-04, Spouse with No Children. This is effective the date the child is made a ward of the Crown or is adopted, whichever is earlier.
Child living in institution or group home
If a child of the deceased worker permanently lives in an institution or group home, and if
- the spouse is not required to make a financial contribution on behalf of the child's care, and
- the spouse has no other children
the spouse is entitled to periodic payments the same as a spouse with no children, see 20-03-04, Spouse with No Children.
If the child temporarily lives in an institution or group home, the spouse continues to receive the periodic payments described in 20-03-06, Spouse with One or More Children.
Annual indexing
On January 1 every year, the WSIB indexes ongoing periodic payments by the indexing factor, see 18-01-14, Annual Indexing for more information about annual indexing.
Application date
This policy applies to all decisions made for entitlement periods on or after January 1, 2018 if the injury or disease that resulted in the worker's death occurred on or after March 9, 2005.
The guidelines for annual indexing apply to all decisions made for entitlement periods on or after January 1, 2018 if the injury or disease that resulted in the worker’s death occurred on or after January 1, 1998.
Document History
This document replaces 20-03-07 dated April 6, 2009.
This document was previously published as:
20-03-07 dated October 12, 2004
20-03-07 dated June 15, 1999
13.9 dated January 1, 1998.
References
Legislative Authority
Workplace Safety and Insurance Act, 1997, as amended
Sections 2(1), 48(3), (5), (6), (14), (15), (16), (17), (19), (20), (24), 49, 52, 60
Minute
Administrative
#22, November 15, 2017, Page 546