Court File and Parties

COURT FILE NO.: CV-16-96043

DATE: 20220608

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Amber Star Chaboyer and Kimberley Chaboyer, Plaintiffs

AND:

Gurvinder S. Gill, Linus R. Butler, Unifund Assurance Company and Certas Direct Insurance Company, Defendants

AND:

Scottish & York Insurance Co. Limited added by Order pursuant to section 258 (14) of the Insurance Act, R.S.O. 1990, c1.8, Statutory Third Party

BEFORE: Justice V. Christie

COUNSEL: David Edwards, Counsel for the Plaintiffs on this Motion, Agent for Counsel of Record for the Plaintiffs, Daniel J. Balena

James Hirsh, Counsel for the Defendant, Unifund Assurance Company

Frank Csathy, Counsel for the Statutory Third Party, Scottish & York Insurance Co. Limited, on this Motion

HEARD: May 20, 2022

MOTION FOR SUMMARY JUDGMENT BY UNIFUND

ENDORSEMENT

Overview

[1] This is a motion by the Defendant, Unifund Assurance Company (“Unifund”), seeking the following relief:

a. An Order granting Summary Judgment to dismiss the Plaintiffs’ claims against the Defendant Unifund;

b. A declaration that Unifund is not required to respond to the Plaintiffs’ claim made pursuant to the OPCF 44R endorsement of the automobile insurance policy issued to the Plaintiff Kimberley Chaboyer;

c. A declaration that the Plaintiff Amber Chaboyer is not insured under the Ontario automobile insurance policy OPCF 44R endorsement issued by the Defendant Unifund to the Plaintiff Kimberley Chaboyer;

d. A declaration that the Plaintiff Amber Chaboyer is not an eligible claimant under the Ontario automobile insurance policy OPCF 44R endorsement issued by the Defendant Unifund to the Plaintiff Kimberley Chaboyer;

e. A declaration that the Plaintiff Amber Chaboyer is not a dependant relative under the Ontario automobile insurance policy OPCF 44R endorsement issued by the Defendant Unifund to the Plaintiff Kimberley Chaboyer;

f. A declaration that the statutory third-party Scottish & York Insurance Co. Limited (“Scottish & York”) is required to respond to the claim to the $1 million liability coverage limits of its insurance policy with the defendant Gurvinder S. Gill;

g. An Order for costs of this motion on a substantial indemnity basis; and

h. An Order for costs of this action on a substantial indemnity basis

[2] At the outset of the hearing of this motion, counsel for Scottish & York requested an adjournment of the hearing of this motion. It was argued that any decision this court makes on the issue relating to a requirement for them to respond to the claim will also impact a companion action. The companion action referred to relates to the same motor vehicle collision, with Linus Butler as the Plaintiff. Scottish & York argued that the Plaintiff in the companion action should be properly served with this motion, in order to allow for one consistent ruling from the court on this issue.

[3] This court agreed that this portion of the motion should be adjourned to allow the Plaintiff on the companion action to be served and participate if they so choose. This Court agreed to be seized with this portion of the motion, and a return date was scheduled for July 19, at 9:30 am by Zoom, a date which can be reconsidered once the parties are provided with this court’s ruling on the other issues in this motion, and depending on the availability of the companion action Plaintiffs once they are properly served.

[4] Having adjourned this portion of the motion, the court then heard submissions in relation to all other relief sought. All of the other issues relating to the involvement of Unifund in this litigation and the OPCF 44R endorsement really come down to one question – whether Amber Chaboyer (“Amber”) resides, in part, with her mother, Kimberley Chaboyer (“Kimberley”) at 85 Forest Creek Pathway, Scarborough, Ontario. The answer to this question will determine all issues in this motion, except for the one matter adjourned. Since Amber is the daughter of Kimberley, she is certainly a relative. However, coverage under the Unifund policy depends on whether Amber resided, at least in part, in her mother’s home at the time of the accident.

Facts

[5] Some facts, at least for this motion, are not in dispute.

[6] This action arises as a result of a collision that occurred on Kennedy Road at Ellesmere in Toronto between a car and a motorcycle on August 1, 2015. The Plaintiff, Amber Chaboyer, was a passenger on the motorcycle driven by the Defendant, Linus Butler. The motorcycle was rear-ended by a motor vehicle operated by the Defendant, Gurvinder Gill (“Gill”), causing Amber Chaboyer to be ejected from the motorcycle.

[7] Amber Chaboyer is the daughter of the Plaintiff, Kimberley Chaboyer.

[8] The Defendant Gill pleaded guilty to charges stemming from this collision, specifically, to impaired driving, dangerous driving causing bodily harm, and failure to comply with probation. He was given a custodial sentence of two years and a driving prohibition for five years. He has not defended this action and has been noted in default as of August 2017. Gill was insured under a policy issued by Scottish & York. On December 16, 2016, Scottish & York obtained an order naming it as a Statutory Third Party in this litigation.

[9] At all material times, Unifund issued an insurance policy to Kimberley Chaboyer, which contained an OPCF 44R Family Protection Endorsement. The OPCF 44R endorsement is an optional policy that provides certain coverages to the family members of the holder of an automobile policy. The Family Protection Endorsement potentially provides coverage if an individual is considered a “dependent relative” as set out. All parties agreed that the only possible operative provision of the Endorsement in this case would be 1.2(c) which reads:

(c) a relative of the named insured or of his or her spouse, who resides in the same dwelling as the named insured.

Examinations Under Oath

[10] Amber Chaboyer and Kimberley Chaboyer have both given evidence in relation to this action and the question of residency relevant to this motion. Their evidence was critical to this court’s determination on this motion.

[11] On November 5, 2015, Amber Chaboyer was examined under oath in relation to the accident benefits claim. She stated in part as follows:

a. Her address was 280 Morningside Avenue, Scarborough, Ontario, an apartment where she had lived for almost ten years (it would be ten years in February 2016).

b. Kimberley’s address was 85 Forest Creek Pathway, Scarborough.

c. Amber advised that she worked as a bartender and also received Ontario Works.

[12] On March 28, 2018, Amber Chaboyer testified under oath at an examination for discovery. She stated in part as follows:

a. Amber Chaboyer was 42 years old, with a 23-year-old daughter.

b. When asked where she lived, she stated that she lived at 280 Morningside Avenue, Scarborough, Ontario, in apartment 1210, an apartment she had been living in since 2006, for approximately 12 years (10 years by the time of the collision). She lived alone.

c. When asked if she was living anywhere else other than Morningside, she stated, “Well, I was taking care of my mom so….” She stated that her mother lived at 35 Forest Creek Pathway at Morningside and Sewells. She stated that she had been taking care of her mother, who suffered from a number of health issues, for 14 years. She was the only one taking care of her mother up to the time of the collision.

d. When asked how many days a week she was at the Forest Creek address, she said “Typically, two to three days”.

e. When asked if she would just go take care of her and return to her place, she said, “No, sometimes I would stay as well”.

f. She stated that her mother lived by herself.

g. She stated that her brother assists with taking care of their mother now. She said, “…he’s taken my role. He’s there two to three days a week.”

h. She was not a licenced driver and had no car insurance. She had no car insurance at the time of the collision.

i. She had also been assisting her father who lived in Hamilton and was legally blind.

j. Prior to living at Morningside, she lived at 35 Amiens in a basement apartment. She lived alone. She lived there less than a year.

k. The last time she lived at home with her mother was when she was 15 years old.

l. When it was suggested to her that she had not lived with her mother since she was 15 years old, she stated, “Despite taking care of her and staying there, that’s how I lived with her but, like, to fully, you know, on my own…”

[13] On April 25, 2018, Amber Chaboyer testified under oath at an examination for discovery. She stated in part as follows:

a. Amber confirmed that she had been living at 280 Morningside Avenue for 12 years at that time.

b. She confirmed that her mother lived alone in the townhouse at 35 Forest Creek.

c. She stated that she would have her own bedroom when she stayed at Forest Creek. She stated, “Yeah, I’d sleep in the, in the second room or sometimes I’d sleep with her.” She stated that there was a bed in the second room.

d. She agreed that she did not pay her mother rent.

e. She agreed that she was not financially dependent on her mother; in fact, she stated, “No, I took care of her.”

f. She stated that she would keep clothes at her mother’s place.

g. She confirmed that she had a toothbrush at her mother’s place.

h. When asked whether she would have to pack a bag in order to go to her mother’s she said, “Sometimes…if I have like dirty laundry, sometimes I’d bring new stuff because. Sometimes I would go, say I’d go before work so I’d go in crappy clothes to go before work and I shower and get ready to go to work from there after I’ve done chores and stuff for her. Sometimes I’d do it that way. I didn’t always have the nicest – you know, I’d clean and take care of her, not to dress up.”

i. She stated that there was no set schedule of when she would stay at her mother’s. She said, “No. We would just work it out throughout the week because my work schedule was different every week.”

j. She agreed that she would leave her pets at home. They would be ok because she would leave extra food.

k. When asked whether she would ever spend consecutive nights at her mother’s house, she stated, “No, I’d always – if I did, she would have to drive me to, to feed my cat and come back. I don’t neglect my animal…It happened here and there where she’d have to drive me and bring me back to go feed my cat, yeah.”

l. When it was put to her that it was usually not consecutive nights, she said, “We didn’t do this all the time. It was whatever had to be done, it was done. We didn’t have a set schedule of Monday to Friday, this is what we do.” She agreed that it was done as needed, depending on her mother’s health.

m. She confirmed that her health card and passport state her address as 280 Morningside. She agreed that she did not have any identification that provided her address as 35 Forest Creek. She stated, “No, no, no. I, I would stay at my mom’s. I have my own apartment. I would stay at my mom’s.”

n. Amber was asked the question, “You would stay at your mom’s but you…didn’t live there?” Her answer to this question was “No. That’s her home. I have my own but I would stay there to help her”.

o. She agreed that her mail came to her Morningside address, although described getting mail from MAD Canada around the time of her discovery at her mother’s address.

p. She stated that if she went to the hospital and filled out a form she said, “It’s my address”, but that her mother was her emergency contact.

q. When asked whether she would be on her mother’s tenant’s insurance, she replied, “No I don’t live there.”

r. When it was suggested to her that she did not live with her mother before the accident, she said, “I would help my mother for the last 14 years so wherever she lived, I would sleep and stay over and help her with whatever she needed. I still have my own place.” She agreed that she lived at her own place. She stated, “I have belongings at my mom’s, if I’ve got to get up and go to work; I’ve got a shower there, change of clothes and go or I come back after. We work things out. I don’t – that was not where I stayed seven days a week. I have my own place.”

[14] On February 20, 2019, Kimberley Chaboyer testified under oath at an examination for discovery. She stated in part as follows:

a. She provided her address as a two-bedroom rented house located at 35 Forest Creek Pathway, Scarborough, Ontario and that she had lived there for 11 years at the time of this examination in 2019.

b. When asked who was living with her at the time of the accident, she stated, “Well, my daughter stayed with me three days a week, sometimes more if she could, and myself.”

c. She stated that Amber had clothing at the residence.

d. Amber did not pay rent at the residence.

e. When asked how Amber helped out, she stated, “She did my groceries, she did my errands, getting prescriptions. I see a lot of doctors, she would take me to a lot of appointments.” She stated that Amber would help her out financially by buying groceries and toiletries.

f. When it was suggested to Kimberley that Amber “lived also somewhere else”, she stated, “Yes…just down the street from my house at 280 Morningside” where she had been for 14 years.

g. When asked how long Amber had been coming to stay with her three days a week, she stated, “Well when my mother passed in 2003, she started coming over more because I kind of lost it, like got into bad depression, my health got really bad. So it graduated from there.”

h. When asked “when did Amber move out”, Kimberley stated, “Well the last time she was – had stayed at my house was the night of the accident.” When asked again, “But when did she move out of your house”, she responded, “Well she had two residences.” When counsel was attempting to clarify this response, the following exchange took place:

THE DEPONENT: The night of the accident, that was it, it was all done. She was gone.

MR. BALENA: She did not return…

THE DEPONENT: She didn’t come back.

MR. BALENA: …to the house after the accident.

THE DEPONENT: Yeah.

MR. VISCONTI: She didn’t return to 280 Morningside?

THE DEPONENT: Yeah, that’s her residence.

MR. VISCONTI: Okay.

MR. BALENA: No, to Kimberley’s residence.

i. Kimberley explained that Amber left the family home at the age of 15, stating that they “had one hell of a fight and I, I kicked her out.”

j. Kimberley stated that Amber never moved back in with her, “until I needed her help.”

k. When asked how often Amber would stay over after her mother passed away, she said, “Three days a week. Sometimes longer if she wanted, sometimes less.” She stated that this increased since the passing of her mother until the time of the accident. When asked what it increased to, she stated, “Three days a week. She would – she had her own room, she’d stay over.” She said, “…three days a week, sometimes more, it all depends. Maximum was three days a week…and if she wanted to, she would stay over more. But mothers and daughters get on each other’s nerves no matter what.” She then explained that she meant “minimum” as opposed to “maximum” and said, “Whatever she felt like it. Four times, five times if she felt like it. That wasn’t always the case. But the minimum was always three days.”

l. She testified that she suffered from a lot of health problems and that there was quite a bit she was not able to do and would frequently be bedridden.

m. She testified that from 2003 until the accident, Amber would cook, clean the residence, and bring her to her medical appointments and obtain prescriptions. She stated, “Vacuuming, dusting, she even did my backyard…she did the weeding, she would plant….pick up dog poop.” Amber would walk Kimberley’s dogs. Amber would assist her to the bathroom at times or even bathe her when necessary.

n. She stated, “If she’d come over after work, say when she closes the bar at three o’clock in the morning. She would come over and stay over, and she would stay until she started her next shift….and she might do that three days in a row or she might take a day off.”

o. Amber did not come to her house every day.

p. Kimberley does drive and has a car. She had a vehicle at the time of the accident. Kimberley stated that Amber also drives and has access to her car and drives her to appointments.

q. When it was suggested to Kimberley that Amber was living at 280 Morningside Avenue at the time of the accident, she stated, “she had two residence, my house and 280 Morningside”.

r. She agreed that Amber was not financially dependent on her in any way before the accident.

s. She agreed that Amber did sleep with her sometimes, but she also had her own bedroom there.

t. She testified that Amber kept clothing, wigs, makeup, toiletries, towels, and shampoo at the Forest Creek residence. When asked where she kept these items, she stated, “She kept – she had – there was a dresser, okay, in the other room. She even had so much stuff at one point she had to put some stuff in my dresser. She had clothes, and there’s the closet in the first bedroom. And I have this big huge, shelf thing before you get into the tub, there’s enough room for everybody’s products on there.”

u. The Morningside address was 15 minutes from the Forest Creek address by bus.

v. Amber had her own keys to the Forest Creek residence. She stated that Amber had a set of keys for every residence she lived in. She stated that Amber had the keys for as long as she had lived there.

w. The longest Amber stayed at Forest Creek consecutively before the accident was three nights.

x. None of Amber’s mail came to the Forest Creek residence.

y. At the time of the accident, she had tenant’s insurance. When asked whether on the application, she indicated that her daughter was living there, she stated, “I don’t know if I had to.” She then said that she did not remember. In relation to renewals of the tenant’s insurance, she indicated that she did not tell anyone at the insurance company that her daughter was living at the residence.

Legal Principles

[15] Rule 20.04(2) of the Rules of Civil Procedure requires the court to grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[16] As the Supreme Court of Canada made clear in Hryniak v. Mauldin, 2014 SCC 7, the first step is to determine if there is a genuine issue requiring a trial based only on the evidence presented by the parties without using the fact-finding powers in rule 20.04(2.1) and (2.2). The expectation is that in making or responding to the motion, the parties have each put their best foot forward. There will be no genuine issue requiring a trial when the court is able to reach a fair and just determination on the merits. Such a determination is possible when the court can make the necessary findings of fact, apply the law to the facts, and where the result is a proportionate, more expeditious and less expensive means to achieve a just result.

[17] Unifund takes the position that there is no genuine issue requiring a trial as to whether Amber Chaboyer resided in the same dwelling with her mother on the day of the collision, and that it is clear on this record that Amber Chaboyer did not reside with her mother, even on a part time basis. The Plaintiffs submitted that the evidence demonstrates that Amber Chaboyer had two residences, one of which was with her mother, or at least that the place of residence may be a genuine issue requiring a trial.

[18] In order to answer this question, the court must consider the meaning of “resides” as it has been defined in the case law. Also, the court must consider the evidence presented on this motion in relation to that definition.

[19] In Harris (Litigation Guardian of) v. Pilot Insurance Co., (1997) 1997 CanLII 4436 (ON CA), 34 O.R. (3d) 633 (C.A.), the Plaintiffs appealed from a judgment declaring that Timothy Harris did not reside in the same premises as his mother when he was injured in a motor vehicle accident and was not entitled to coverage under a “Family Protection Endorsement Supplement” in an insurance policy issued to his mother. The facts found in this case included the following:

a. Timothy’s parents married in 1966. Timothy was born in 1967.

b. The family lived in and around London, Ontario, however often spent vacations at a condominium in Florida, purchased in 1974.

c. Timothy’s parents divorced in 1977 when he was 10 years old. His father moved to Florida. His mother obtained custody of him (Timothy), and his father paid support. Timothy visited his father in Florida during school breaks.

d. Timothy did poorly at school and his mother had trouble controlling him.

e. In the summer of 1978, Timothy visited his father in Florida. His parents decided he should spend more time with his father. As a result, they enrolled Timothy in school in Florida.

f. After a few weeks, his father was dissatisfied with the school and sent Timothy to Ridley College in St. Catharines, Ontario. Timothy lived at Ridley during the week and returned to his mother’s home near London most weekends. He spent Christmas holidays at his mother’s residence.

g. Timothy failed his year at Ridley, and in the summer of 1979, he went to Florida to live with his father, where he enrolled in school and remained until the spring of 1985.

h. Until the end of 1984, Timothy spent his school holidays, including summer and Christmas, at his mother’s house in Ontario.

i. In December 1984, Timothy returned to London for Christmas as usual. He was 17 years old at the time. He talked to his mother about returning to London to live. His mother had kept a room for Timothy and some of his belongings, such as his stereo, camera, and skis were at her house. Most of his family and many friends lived in London. Timothy delayed his return to Florida for a week while he and his mother tried to enrol him in high school in London. They were not able to make satisfactory arrangements.

j. Timothy returned to Florida in January 1985. He went back to school and in February got a part-time job.

k. In May 1985, he was asked to leave school due to poor performance. He then increased his hours at work to full-time.

l. Timothy did not return to Ontario at Easter or during the summer of 1985.

m. On August 8, 1985, Timothy received serious injuries in Florida as a passenger in an uninsured motor vehicle. The car he was in left the road and struck a tree, killing the driver and seriously injuring Timothy. He was 18 years old at the time.

n. Since the accident, leading up to this court decision, Timothy had spent most of his time in hospitals and rehabilitation facilities.

o. The Plaintiffs, Timothy Harris, and his parents, claimed damages from the estate of the driver and from the insurance company which insured Timothy Harris’ mother under a standard auto policy with a Family Protection Endorsement similar to the one in the case at bar.

[20] The Court found that Timothy Harris did not reside in the same premises as his mother at the time of the accident and was not entitled to coverage under her policy. The Court stated as follows:

[7] The word "reside" and various words incorporating it are frequently used in legislation, as well as in contracts, wills and other legal documents and have long been a prolific source of litigation. The cases interpreting and applying them are legion. The explanation of this may be found in the following passage in the reasons of Rand J. in Thomson v. Minister of National Revenue, 1946 CanLII 1 (SCC), [1946] S.C.R. 209 at p. 224, [1946] 1 D.L.R. 689:

The gradation of degrees of time, object, intention, continuity and other relevant circumstances, shows, I think, that in common parlance "residing" is not a term of invariable elements, all of which must be satisfied in each instance. It is quite impossible to give it a precise and inclusive definition. It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the same matter. In one case it is satisfied by certain elements, in another by others, some common, some new.

[8] The Thomson decision recognizes that in some situations a person may have two residences at the same time (see p. 213 S.C.R., per Kerwin J. and p. 232 S.C.R., per Estey J.) and many other cases have also recognized this. The Canadian decision most closely on point, and which is the principal authority relied upon by the appellants, is that of Godin J. in Arsenault v. Fitzgerald (1985), 1985 CanLII 4186 (NB QB), 17 C.C.L.I. 58, 66 N.B.R. (2d) 232 (Q.B.)…

[10] The conclusion of the existence of dual residence is reflected in several U.S. decisions involving the "residence" of children of divorced or separated parents…

[11] In the present case it should be noted that the word "resides" in the endorsement is not qualified by any wording such as, for example, "ordinarily" or "customarily". Accordingly, it is clearly capable in its immediate verbal context, and also in the wider context of coverage in an endorsement providing protection against losses caused by under-insured motorists, of accommodating a situation where the dependent relative may reside in more than one location. Specifically, on the issue presented in this case, it is capable of recognizing that just because Timothy may have been residing with his father at the time of the accident it does not follow that he could not also have been residing with his mother. This approach is in accord with the general principle of interpretation of insurance policies "that coverage provisions should be construed broadly": Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., 1993 CanLII 150 (SCC), [1993] 1 S.C.R. 252 at p. 269, 99 D.L.R. (4th) 741.

[12] The trial judge does not seem to have taken this view of the meaning of "resides in" in the endorsement. It appears that he felt obliged to decide between mutually exclusive alternatives -- whether Timothy resided with his father in Florida or with his mother in Ontario. At one place in his reasons he indicated that the question before him was "whether Timothy Harris resided in Florida or in his mother's premises in London, Ontario". If the trial judge was confined to choosing one location only as the place of residence, I think that he was clearly right in selecting Florida.

[13] I feel obliged to hold, however, that in approaching the issue with the more expansive meaning of "resides in" in mind, it cannot reasonably be concluded that, at the time of the accident, Timothy Harris could be said to have a dual residence -- to have been residing in the premises of his mother and the premises of his father.

[14] If the accident had occurred in Florida before the end of 1984 I think that it is reasonably possible that a finding of dual residence would have been a proper conclusion. The conclusion would have been based on the settled pattern of Timothy Harris's life at that point and for the preceding five or six years. His parents were separated and he lived parts of the year with each, the school terms with his father and the vacations with his mother. The case would have been like Arsenault v. Fitzgerald, supra.

[15] This pattern appears to have ended in 1985. Timothy did not once return to his mother's place -- specifically, at Easter or school break, or in the summer. He had quit school in May. He became an adult in June. He had taken a virtually full-time job, working 36 to 40 hours a week. His actions no longer afforded a basis for concluding that he lived with both his father and his mother.

[18] Having regard to this evidence, it may be that the trial judge's finding that Timothy "had no intention of returning to live with his mother" is too strongly worded. There is no evidence that Timothy had said words to this effect. There is, however, no positive evidence that he did intend to return to London and, taking into account the change in his pattern of life in 1985 and the significant difference between it and that which had existed before, I think that it would be unreasonable to hold that Timothy had a dual residence at the time of the accident.

[21] Another case this court was referred to was Gardiner v. MacDonald Estate, 2015 ONSC 227. In that case, the action was for damages for injuries allegedly sustained by Benjamin Gardiner as a result of a motor vehicle accident that occurred on January 23, 2008 in Ottawa. Mr. Gardiner was a passenger in the backseat of an SUV. The accident was fatal for the driver and two other passengers. Mr. Gardiner sustained numerous injuries, including fractures to his ribs, coccyx and left femur. He also sustained a traumatic brain injury, which compromised his memory. State Farm added itself as a statutory third party. State Farm denied coverage to its insured, Mark MacDonald, on the basis that he was not lawfully authorized to drive on the night of the accident. Intact Insurance issued a policy of automobile insurance to Mr. Gardiner’s mother that included a Family Protection Endorsement. Mr. Gardiner claimed against Intact for coverage under the Family Protection Endorsement. There were two motions for summary judgment before the court. Relevant to this proceeding, the court was being asked to interpret the Intact Insurance policy and what was required to qualify for coverage under the Family Protection Endorsement. Specifically, the court considered whether Mr. Gardiner was residing in the same dwelling as his mother at the time of the accident, and whether residency was sufficient for coverage. The pertinent facts of that case were as follows:

a. From his high school graduation in June 2005 until approximately September 2006, Mr. Gardiner resided at his mother’s home in Renfrew, Ontario.

b. At the beginning of this period, he was working part time, however, from January 2006 to the end of August 2006, he was employed full time.

c. In September 2006, Mr. Gardiner began his first year of studies at Carleton University in Ottawa, where he lived in residence on campus. He continued to return to his mother’s home in Renfrew approximately twice per month and also during Thanksgiving, Christmas and Easter holidays.

d. Mr. Gardiner’s mother continued to live in the family home and maintain his bedroom.

e. After completing first year at Carleton in April 2007, Mr. Gardiner returned home to live with his mother for the spring and summer of 2007.

f. In September 2007, Mr. Gardiner entered his second year at Carleton, at which time he shared a two-bedroom apartment off campus with other students. He returned to his mother’s residence in the same manner as the previous school year.

g. Mr. Gardiner did not pay rent to his mother and was financially subsidized by her.

h. Mr. Gardiner’s plans for the summer of 2008 were to return to live with his mother in Renfrew and to find summer employment.

i. The accident occurred on January 23, 2008.

j. Mr. Gardiner was unable to complete his second year at Carleton.

[22] With these facts as the context, the Court stated as follows:

[25] The ordinary rules of contract interpretation apply to insurance policies. Thus, to interpret an insurance policy, including any optional endorsements, a Court should first have regard to the clear language used in the contract. Where there is ambiguity, the Court may consider the reasonable expectations of the parties. Any ambiguity must be resolved against the insurer.

[26] It is well-established that "Ontario motorists have no real or meaningful opportunity to negotiate with an insurer concerning the contents of an Endorsement." A Court is obliged to consider this inequality of bargaining power when interpreting an insurance contract or endorsement.

[27] Courts are also required to interpret clauses providing coverage "liberally or broadly in favour of the insured" whereas clauses excluding coverage are to be interpreted "strictly against the insurer."

[43] The intent to cover relatives who reside with the insured, regardless of financial dependence, is clearly expressed in s. 1.2.

[44] While ss. 1.2(a) and (b) include the requirement of financial dependence, no such wording is present in s. 1.2(c).

[45] It is my finding that the clear language of OPCF-44R extends coverage to relatives residing with the named insured without proof of financial dependency. Provided a relative can prove that he or she is residing with the named insured and otherwise meets the requirements of the provision, no inquiry into financial dependence is necessary.

[46] Where a relative has a pattern of living at more than one location at the time of the accident and proves that one of the residences is that of the named insured, coverage is provided under the Family Protection Endorsement.

[47] In Harris, supra footnote 8, the Court of Appeal held that the term "resides" accommodates situations where a relative resides in more than one location because the term is not qualified by additional words such as "ordinarily" or "customarily" (at para. 11).

[50] In determining whether an individual qualifies as a dependent relative it is necessary to consider the factual intentions of the individuals involved regarding the attachment of the relative to the household.

[51] In the case at bar, the evidence establishes that Ben considered his mother's home in Renfrew to be his permanent residence. All his legal documents showed his mother's address as his permanent address. Those documents include his employment files, student file at Carleton, OSAP loan documents, bank accounts, credit cards and driver's license.

[23] The Court then went on to analyze the issue of Mr. Gardiner’s financial dependency, albeit, concluding that this issue really did not decide the matter, as Mr. Gardiner was a dependent because his permanent residence was at the home of his mother and, therefore, he was covered by the Family Protection Endorsement. Frankly, the issue of residency did not seem to be the hotly contested issue in this case. The court concluded that Mr. Gardiner was entitled to coverage.

[24] In Verhoef v. Intact Insurance Company, 2021 ONSC 4310, the Defendant, Intact Insurance, sought an Order on summary judgment dismissing the action and all cross-claims against it. The issue to be determined was whether Mr. Verhoef was a resident in the same dwelling as the named insured, his mother, at the time of the accident. Intact was the automobile insurer for Mr. Verhoef's mother and the policy included the OPCF 44R family protection endorsement.

[25] The pertinent facts found by the court were as follows:

a. Mr. Verhoef lived mainly with his mother in Renfrew, Ontario until about 2011. He was then removed from his mother’s care and placed in foster care for several months, following which he moved in with his father.

b. In early 2012, Mr. Verhoef left his father’s home and went to say for a few months with Michelle and Trevor Burgess, the parents of his sister’s then boyfriend. This was described as a “kinship agreement” in effect from March 1, 2012.

c. In the summer of 2012, Mr. Verhoef moved in with his mother in Niagara Falls, Ontario, where he had a furnished bedroom in her basement. From time to time, as a result of disagreements in the household, he would leave to stay with friends or an older sibling, but would return.

d. In January 2014, Mr. Verhoef left his mother’s home to stay with a friend, Austin Price, and Mr. Price’s family in Niagara Falls. He slept on a couch downstairs in Mr. Price’s room and brought minimal personal items.

e. After several weeks, Mr. Price’s mother (Melanie Bureau) requested rent payments.

f. In March 2014, Mr. Verhoef applied for Ontario Works and showed Ms. Bureau’s residence as his address. He began paying rent.

g. Between January 2014 and August 18, 2014, Mr. Verhoef returned to his mother’s home from time to time where his bedroom was maintained for his exclusive use. He would stay for a few hours up to a few days at a time. Most of his personal items remained there. He did not need permission to enter his mother’s home.

h. Mr. Verhoef was cycling when he was struck by an unidentified motor vehicle on August 18, 2014. He suffered injuries as a result. He was not a named insured under any policy of automobile insurance at the time. He was 17 years old. The accident report listed Ms. Bureau’s address for Mr. Verhoef. A general occurrence report showed Mr. Verhoef’s address, in one part, as that of Ms. Bureau’s, with his mother as “kin”. In another part of the report, his address was shown as that of his friend, Tammi Potter. Emergency records from the hospital showed his address as that of Ms. Bureau’s

i. On November 10, 2014, Mr. Verhoef gave a statement that he was financially dependent on his mother despite his living with Ms. Bureau. Before the incident he was living with Austin Price, paying rent, and had been doing so for 7 months prior to the incident. He stated that he would sleep at his mother’s residence a couple of times per week.

j. On Intent to Rent documents from April 30, 2015 and August 27, 2015, Mr. Verhoef’s address was stated as that of Tammi Potter’s residence, and his next of kin listed as his sister.

k. In a signed statement from Mr. Verhoef’s mother dated October 5, 2015, she stated that he lived with her for 3 years before the incident of August 18, 2014. She said he was gone for 6 months in 2014 commencing in January and then was back and forth for a couple of weeks before the incident. At the time of the incident, she said that he was living with Austin Price. During the six months before the incident, he came and went at least a dozen times and would stay for a day or so here and there.

l. At an examination for discovery on May 29, 2019, Mr. Verhoef stated that at the time of the incident, he said he had been living with Mr. Price for about a year or two, although in any given month, he would stay with his mother 4 or 5 times and occasionally with his sister.

[26] On these facts, the court found as follows:

[51] In effect, Mr. Verhoef's occasional returns to his mother's residence were in the nature of sojourns: casual, occasional or intermittent visits. By analogy, the situation is similar to that of an adult child who, without the need for invitation or permission, comes home for visits with parents, sleeps in his childhood bedroom, and enjoys their largesse while he is there. I think it would be a surprise to a parent in that situation to find that their child was "residing" with them so as to be entitled to OPCF-44R coverage.

[52] It is true that courts have allowed an expanded definition of residence to include dual residences. This is in keeping with the general principle of interpretation of insurance policies where the true intent of the parties at the time of entry into the contract is to be promoted and protected. However, there must still be some connection stronger than that of an occasional visitor to support a finding that the person was residing in the same dwelling. Neither Mr. Verhoef nor his mother believed that he was residing with her. Finding that Mr. Verhoef was not residing at his mother's home as a result of his brief and occasional visits is consistent with the likely intention of the parties when the insurance contract was made.

[27] The question of whether Amber Chaboyer resided in the same dwelling as her mother, at least in part, on the date of the collision, is a question of fact to be determined in the unique circumstances of this case. The specific facts and any stated intention of the parties is critical to determining the question of whether a person is residing, at least in part, in the same premises as the insured.

[28] Financial dependency is not necessary to trigger the coverage.

[29] This court fully accepts that it is possible for a person to have more than one residence. However, in this case, this court finds as a fact that Amber Chaboyer did not reside, even in part, in the same dwelling as her mother, on the date in question. The Court has reached this conclusion having considered all of the facts and circumstances presented including:

a. From the comments made by Amber under oath, it is the view of this court that she considered her one and only residence to be 280 Morningside Avenue, Scarborough, Ontario, an apartment she had been living in for approximately 10 years by the time of the collision, and that her mother lived alone at the Forest Creek address. The evidence of note included the following:

i. When asked where she lived, she stated that she lived at 280 Morningside Avenue, Scarborough, Ontario, in apartment 1210, an apartment she had been living in since 2006, for approximately 12 years (10 years by the time of the collision). She stated that she lived alone. Amber did not state that she lived between two residences.

ii. When asked if she was living anywhere else other than Morningside, she stated, “Well, I was taking care of my mom so….” Amber did not mention that she also resided with her mother.

iii. She stated that her mother lived at 35 Forest Creek Pathway at Morningside and Sewells. She stated that she had been taking care of her mother, who suffered from a number of health issues, for 14 years. She stated that her mother lived alone.

iv. When asked how many days a week she was at the Forest Creek address, she said “Typically, two to three days”. When asked if she would just go take care of her and return to her place, she said, “No, sometimes I would stay as well”.

v. She stated that the last time she lived at home with her mother was when she was 15 years old.

vi. She agreed that she did not pay her mother rent.

vii. She agreed that she would leave her pets at home at Morningside Avenue when she would go take care of her mother.

viii. She confirmed that her health card and passport state her address as 280 Morningside. She agreed that she did not have any identification that provided her address as 35 Forest Creek. She stated, “No, no, no. I, I would stay at my mom’s. I have my own apartment. I would stay at my mom’s.” Ontario Works correspondence was also addressed to her at Morningside Avenue.

ix. Amber was asked the question, “You would stay at your mom’s but you…didn’t live there?” Her answer to this question was “No. That’s her home. I have my own but I would stay there to help her”.

x. She agreed that her mail came to her Morningside address.

xi. She stated that if she went to the hospital and filled out a form she said, “It’s my address”, but that her mother was her emergency contact.

xii. When asked whether she would be on her mother’s tenant’s insurance, she replied, “No I don’t live there.”

xiii. When it was suggested to her that she did not live with her mother before the accident, she said, “I would help my mother for the last 14 years so wherever she lived, I would sleep and stay over and help her with whatever she needed. I still have my own place.” She agreed that she lived at her own place. She stated, “I have belongings at my mom’s, if I’ve got to get up and go to work; I’ve got a shower there, change of clothes and go or I come back after. We work things out. I don’t – that was not where I stayed seven days a week. I have my own place.”

b. While Kimberley stated that Amber had two residences, her comments and the factual reality suggested otherwise. The evidence of note included the following:

i. Amber did not pay rent at the Forest Creek residence.

ii. When asked how Amber helped out, she stated, “She did my groceries, she did my errands, getting prescriptions. I see a lot of doctors, she would take me to a lot of appointments.” She stated that Amber would help her out financially by buying groceries and toiletries. One would expect that if this was also Amber’s residence that Kimberley would not refer to “my groceries” and “my errands”.

iii. When asked “when did Amber move out”, Kimberley stated, “Well the last time she was – had stayed at my house was the night of the accident.” When asked again, “But when did she move out of your house”, she responded, “Well she had two residences.” When counsel was attempting to clarify this response, the following exchange took place:

THE DEPONENT: The night of the accident, that was it, it was all done. She was gone.

MR. BALENA: She did not return…

THE DEPONENT: She didn’t come back.

MR. BALENA: …to the house after the accident.

THE DEPONENT: Yeah.

MR. VISCONTI: She didn’t return to 280 Morningside?

THE DEPONENT: Yeah, that’s her residence.

MR. VISCONTI: Okay.

MR. BALENA: No, to Kimberley’s residence.

iv. Kimberley repeatedly referred to Amber “staying over”. This does not suggest a residence.

v. She testified that from 2003 until the accident, Amber would do the “vacuuming, dusting, she even did my backyard…she did the weeding, she would plant…pick up dog poop.” Again, Kimberley stated “my backyard”, suggesting that this residence is not shared in any way with Amber.

vi. None of Amber’s mail came to the Forest Creek residence.

vii. At the time of the accident, Kimberley had tenant’s insurance. When asked whether on the application, she indicated that her daughter was living there, she stated, “I don’t know if I had to.” She then said that she did not remember. In relation to renewals of the tenant’s insurance, she indicated that she did not tell anyone at the insurance company that her daughter was living at the residence.

[30] Even though Amber Chaboyer returned to her mother’s residence on a regular basis to assist, had some personal items there, and would spend the night, this does not make this her residence, even in part, in this case. It is clear that Amber enjoyed the settled routine of her life and regularly, normally and customarily lived at her address on Morningside and only resided at that address.

[31] Where there is ambiguity in a contract, the court may consider the reasonable expectations of the parties and must resolve any ambiguity against the insurer. In this case, there are different views expressed by Amber and Kimberley as to whether Amber also resided at Forest Creek. However, the court must not simply accept a stated opinion as to residence but must look at all of the facts and circumstances of the case in order to answer this question. Intention or opinion is only part of the consideration. It is the view of this court that, based on the facts presented, there is no ambiguity here. While Kimberley directly expressed the opinion that Amber had two residences, this is not consistent with the facts of this case and Kimberley’s own statements about the circumstances.

[32] There is no factual basis to support a conclusion that Amber resided, in part, with her mother at the time of the collision. Therefore, there is no basis upon which to conclude that Amber Chaboyer was a “dependent relative” to be afforded coverage under the OPCF 44R Endorsement of Kimberley’s policy with Unifund.

[33] Based on this conclusion, there is, therefore, no genuine issue for trial which would require Unifund to remain a party to this action. Therefore, this motion is granted, as to the relief sought by Unifund, and the action as against Unifund is dismissed.

[34] Given this result, that the action as against Unifund is dismissed, Unifund is no longer at liberty to bring motions in this litigation. Therefore, the remaining portion of this motion brought by Unifund, as adjourned to July 19, 2022, is dismissed and the date is vacated, without prejudice to the issue being raised at another time by another party in this litigation or the related litigation.

[35] As for costs, the court strongly encourages the parties to consult with each other and attempt to reach a reasonable agreement. If the parties are unable to agree as to costs, the court will accept written submissions on costs, which shall be no more than three pages in length, excluding supporting documentation, and which shall be provided to the court office electronically, and to Bev.Taylor@ontario.ca, no later than 4:30 p.m. on June 16, 2022.

Justice V. Christie

Date: June 8, 2022