Court File and Parties

Court File No.: CV-19-71580 Date: 28/03/2023

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

LORRAINE MCGRATTEN as Litigation Administrator for the Estate of Lawrence Hamel, LORRAINE MCGRATTEN, YVONNE MOELKER, PAUL HAMEL and LOUIS HAMEL

G. Mallia, for the Plaintiffs

Plaintiffs

- and -

JOEL DOE DRIVER, JOHN DOE OWNER, and DIRECTOR, MOTOR VEHICLE ACCIDENT CLAIMS FUND and SECURITY NATIONAL INSURANCE COMPANY

S. Bilato, for the Defendant, Director, Motor Vehicle Accident Claims Fund G. Nathanael, for the Defendant, Security National Insurance Company

Defendants

HEARD: March 8-9 2023

REASONS FOR JUDGMENT

The Honourable Justice R. J Harper

Preliminary Background

[1] This matter came before Sheard J. on October 11, 2022. Her endorsement, in part, reads as follows:

The main motion before the court on October 11, 2022, was a motion for summary judgment (“SJM”) brought by Security National to determine whether the plaintiffs were entitled to assert tort claims as against the Security National policy of motor vehicle insurance (the “Policy”) held by the plaintiff, Yvonne Moelker, (“Yvonne”).

The action arises out of a motor vehicle accident that occurred on September 20, 2019, in which Lawrence Hamel (“Larry”), a pedestrian, was struck by an unidentified vehicle one month later, Larry died of his injuries.

Yvonne is a named insured under the Policy. Yvonne, Larry’s siblings, and the Litigation Administrator of Larry’s estate, sued the unidentified driver and owner of the car that hit Larry, as well as Security National and the Motor Vehicle Accident Claims Fund (the “MVACF”).

The plaintiffs advance claims against Security National on the basis that they are entitled to family protection coverage under the OPCF 44R Endorsement of the Policy.

The maximum limit under that coverage is $1,000,000. Security National denies that the plaintiffs are entitled to coverage under the Policy, either under its unidentified automobile or OPCF 44R provisions.

In particular, Security National asserts that for the plaintiffs to be entitled to coverage under the unidentified automobile portions of the Policy, Larry would have to meet the definition of “person insured under the contract” under s. 265(2) of the Insurance Act, which is contingent upon Yvonne and Larry being “spouses” within the meaning of s. 244(1) of the Insurance Act and s. 1.10 of the OPCF 44R endorsement.

Security National asserts that Larry could not and did not meet the definition of spouse, notwithstanding that he and Yvonne were in a serious long-term relationship at the time of the accident. On the basis that Larry is not a spouse or insured person under the Policy, Security National brought the SJM, seeking the dismissal of the action as it.

If the Policy does not apply, then the plaintiffs may seek recovery as against the MVACF to a maximum of $200,000.

At the motion, counsel for the MVACF advised that her client admits that Larry and Yvonne were spouses. That admission opens the door for all the plaintiffs to continue with their claims and that issue would not need to be litigated at trial. Of course, the amount available from the MVACF to satisfy the plaintiffs’ claims is only one-fifth of the amount available under the Policy.

The plaintiffs brought a cross-motion seeking an order dismissing the SJM on the basis that the main issue to be decided – whether Larry and Yvonne are spouses – requires a trial and cannot be determined on an SJM.

By an amended cross-motion, the plaintiffs also sought an order preventing Security National from relying on the affidavit of Colleen Dickson sworn July 11, 2022, after the completion of cross-examinations of the parties and witnesses, conducted in respect of the SJM.

The plaintiffs further amended their Cross-Motion on October 4, 2022, to ask for leave to amend their statement of claim by adding a new paragraph (para. 32) containing allegations against Security National of, among other things, bad faith and breach of its duty of privacy.

Although the MVACF agrees with and supports the position taken by the plaintiffs that Yvonne and Larry are spouses – a finding which would lead to an order dismissing the action as against the MVACF (a “boomerang order”) – the MVAC agrees with Security National that the issue of whether coverage is available to the plaintiffs under the Policy is a matter that is appropriately determined by way of SJM.

The Issues on this Motion

[2] The only issue that is before me is the summary judgment motion brought by Security National Insurance Company (“SN”) seeking to dismiss the claim of the Plaintiffs as against SN because neither Lawrence Hammel (“Larry”) nor Yvonne Moelker (“Yvonne”) are qualified to meet the definition as an insured person under Yvonne’s insurance policy and the OPCF 44R of the SN policy.

Background

[3] In her endorsement as set out above, Sheard J. set out the litigation background. In these reasons, I will expand on the positions of the parties, the evidence that I accept, the law, and my analysis.

[4] Yvonne was the sole named insured and sole listed driver under an automobile policy of insurance issued by SN bearing policy number 73657260 (the “Policy”). The other Plaintiffs are Larry’s estate and his siblings.

[5] The Plaintiffs commenced this action against SN on the basis that they are entitled to unidentified automobile coverage and family protection coverage under the Insurance Act, R.S.O. 1990, c. I.8, and the Family Protection Coverage (“OPCF 44R”).

[6] SN takes the position that the Plaintiffs are not entitled to either unidentified automobile coverage or family protection coverage under the Policy, and that this action should be dismissed against it. SN takes the position that the Plaintiffs should pursue the Motor Vehicle Accident Claims Fund (the “Fund”) for compensation.

[7] The Fund supports the position of the Plaintiffs.

[8] For the Plaintiffs to be entitled to unidentified automobile coverage, Larry would first had to have met the definition of “person insured under the contract” under s. 265(2) of the Insurance Act. For the Plaintiffs to be entitled to family protection coverage under the Policy, Larry would first had to have met the definition of “insured person” under s. 1.6 of the OPCF 44R endorsement. Both are primarily contingent on Yvonne and Larry having met the applicable definitions of “spouse” in the OPCF 44R endorsement.

[9] SN takes the position that Yvonne and Larry did not meet these definitions of “spouse” even though they may have been in a serious long-term relationship at the time of the accident.

The Threshold Issues

[10] Do Yvonne and Larry meet the definition of “spouse” as defined in the Insurance Act and the OPCF 44R endorsement?

[11] SN relies on the case of Intact Insurance Company v. The Dominion of Canada General Insurance Company et al., 2020 ONSC 7982, 154 O.R. (3d) 781. In that case, Lemay J. was dealing with a dispute between insurers. The matter initially went to arbitration as a priority dispute between Intact and Dominion pursuant to the Arbitration Act, 1991, S.O. 1991, c. 17. The reported case was an appeal from the decision of the Arbitrator.

[12] In Intact, the dispute arose out of an accident that involved Tammy Amsinga, who was injured while she was riding as a passenger on the motorcycle owned and being driven by William Schram. The accident took place on June 1, 2014.

[13] Ms. Amsinga and Mr. Schram had been in a committed five-year relationship at the time of the accident. However, Ms. Amsinga and Mr. Schram maintained separate residences. Ms. Amsinga brought a claim against Mr. Schram, who was insured by Intact. Ms. Amsinga could only claim against Intact in first priority if she was a spouse of Mr. Schram as defined in the Insurance Act, as amended.

[14] Justice Lemay found that the Arbitrator erred in her consideration of the applicable legal principles when considering the definition of spouse in the insurance context. The Arbitrator found that the definition of spouse in the family law context should be applied to the insurance law context. The family law context had a much broader and more expansive interpretation of spouse.

[15] Justice Lemay relied on the Ontario Court of Appeal decision in Economical Mutual Insurance Co. v. Lott (1998), 37 O.R. (3d) 417 (Ont. C.A.), where Morden A.C.J.O. stated at para. 17:

[17] In so far as the of family law motions judge, in arriving at his interpretation of “spouse’, considered the policy of the no-fault provisions to be the same as that of the support sections in the Family Law Reform Act, 1978, I must disagree. In this regard, I agree with the reasons of D.S. Ferguson J. in Catherwood v. Young Estate, supra at p.77:

[77] The No-Fault Benefits Schedule is not part of a coherent package of family law legislation. It provides automatic benefits to spouses regardless on need unlike the Family Law Act which provides a scheme for court-ordered support where need is established.

[16] In Intact, Lemay J. accepted the line of cases that emphasised that there were different policy considerations that underlie the statutory scheme in the family law statute as opposed to the Insurance Act statute. Therefore, a different definition of spouse, despite similar wording, is appropriate.

[17] Counsel for SN submitted that I should be guided by the comments of Morgan J. in Royal & Sun Alliance Insurance Co. of Canada v. Desjardins Insurance Group, 2018 ONSC 4284, at para. 27 [emphasis added]:

[27] Unlike the Family Law Act, the Insurance Act provides for automatic benefits to spouses regardless of need. It therefore requires a context-specific approach of its own. More specifically the insurance context contains no imperative to deviate from the ordinary understanding of what it means for two persons to “live together”. In the family law sense of the term, where dependency is crucial to the spousal support context, persons can “live together” -- i.e., line interdependent lives – but maintain separate physical residences. In most non-family law contexts, and particularly in the insurance context of automatic benefits without a broad sociological foundation on which to base those benefits, people who “live together, can be considered spouses, only if they do so in the normal sense of those words for a requisite period of time.

[18] The “normal sense of the word” was accepted by Lemay J. in Intact to mean “reside in the same dwelling”.

[19] SN submits that, when applying that interpretation to the definition of spouse in s. 224(1) of the Insurance Act and in OPCF 44R, neither Yvonne nor Larry meets the definition of spouse, since neither resided in the same dwelling within the last three years prior to the accident. As a result, summary judgment dismissing the Plaintiffs’ claims should follow.

The Position of the Plaintiffs and the Fund

[20] The Plaintiffs and the Fund take the position that the information in the record before me establishes that Yvonne and Larry fit the definition of “spouse” that should be adopted under the Insurance Act and the OPCF 44R endorsement.

[21] The Fund also submits that SN is estopped from claiming that Yvonne and Larry do not meet the definition of “spouse” under the Insurance Act since they had already granted Yvonne no fault accident benefits.

[22] After initially denying the accident benefits to Yvonne, Yvonne appealed to the License Appeal Tribunal (“LAT”). The SN department agreed to settle Yvonne’s accident benefits claim at a LAT case conference on July 30, 2020. However, the settlement agreement had a clause that stated that SN was not admitting any liability by settling the case at the LAT.

[23] SN submits that in the normal and appropriate course, the “No Fault Accident Benefits” department of insurance companies must create a firewall with the other departments of the insurance company. In this case, that was done and there was no knowledge regarding the LAT matter and the accompanying settlement. Additionally, there was no acceptance or admission by the insurance company that Yvonne and Larry were spouses by virtue of the settlement.

[24] Under the circumstances of this case, I find that issue estoppel does not apply. I find that there was no waiver of any rights or legal claims. Parties settle cases for a myriad of reasons. In this case, no inference can be drawn by the fact that SN settled the no fault benefits claim.

[25] Both the Plaintiffs and the Fund submit that the more expanded version of “spouse” that has been attributed to the family law line of cases and other personal injury tort cases should apply to this case. They point out that the moving party’s cited cases all deal with priority claims between insurance companies as they relate to automatic benefits under the Insurance Act.

[26] The Plaintiffs and the Fund submit that the cases must be distinguished on that basis. When considering the context of those insurance cases, one can understand the why Intact and Royal & Sun Alliance Insurance have drawn a distinction between insurance cases and family law cases. In the former, the context was no fault automatic benefits with no social context considerations that dealt with a legislative scheme of dependency. That context is different from the case before me.

The Law and Analysis

[27] I agree with the submissions of the Plaintiffs and the Fund that the starting point for any proper analysis regarding the definition of spouse, in this case, must be the Family Law Act Part V. Part V deals with Dependants’ Claim for Damages. Section 61, which reads:

PART V DEPENDANTS’ CLAIM FOR DAMAGES

Right of dependants to sue in tort

61 (1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction. R.S.O. 1990, c. F.3, s. 61 (1) ; 1999, c. 6, s. 25 (25); 2005, c. 5, s. 27 (28) . (italics are mine)

[28] Part III, s. 29 of the Family Law Act reads:

Definitions

29. In this Part,

“dependant” means a person to whom another has an obligation to provide support under this Part; (“personne à charge”)

“spouse” means a spouse as defined in subsection 1 (1) , and in addition includes either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act. (“conjoint”) R.S.O. 1990, c. F.3, s. 29 ; 1999, c. 6, s. 25 (2); 2005, c. 5, s. 27 (4-6); 2009, c. 11, s. 30 ; 2016, c. 23, s. 47 (1) .

[29] The social context of dependency that is set out in the Family Law Act (“FLA”) is not only brought into the “insurance context” by the statutory scheme of dependency that is mandated in s. 61 of the FLA, but also through the dependency context referred to in the OPCF 44R being the “Family Protection Coverage of the Policy”. The cases cited by SN are dealing with no fault automatic benefits that do not consider the broader social context of dependency.

[30] I accept the submissions of counsel for the Plaintiff and the Fund that once a person qualifies as a spouse pursuant to s. 61 of the FLA, they can sue in tort. The next consideration must be the “family protection” that is afforded within the OPCF 44R endorsement. Section 1.3 of the OPCF 44R reads [emphasis added]:

“eligible claimant” means

(a) the insured person who sustains bodily injury; and

(b) any other person who, in the jurisdiction in which an accident occurs, is entitled to maintain an action against the inadequately insured person.

[31] The insurance company stands in the position of the unknown driver. The plaintiffs are then entitled to claim against the insurance company since the insurance company stands in the place of that unknown driver and the insurance company is liable in damages. If Yvonne falls within the definition of spouse in s. 61 of the FLA, she would then be a “person entitled to maintain an action against the inadequately insured person.” (i.e., the insurance company).

[32] In my view, it simply does not make any logical or statutory interpretive sense to allow someone who would qualify as a spouse under section s. 61 of the FLA to sue in tort by adopting the more holistic and expanded definition of spouse and then, once they are within the OPCF 44R endorsement of a life insurance policy, they would be eliminated by a more restrictive definition of spouse for insurance purposes.

[33] The OPCF 44R definition of spouse is set out in section 1.10 of the OPCF 44R:

Spouse means either of two persons who:

(a) are married to each other.

(b) have together entered into a marriage that is voidable or void, in good faith on the part of the person making a claim under this policy: or

(c) have lived together in a conjugal relationship outside of marriage,

(i) continuously for a period of not less than three years, or

(ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child.

[34] The s. 29 definition of spouse in the FLA is substantially the same. The only difference is that s. 29 refers to cohabited persons in a conjugal relationship.

[35] Cohabited has been consistently defined as “living together in a conjugal relationship.”

[36] The more restrictive definition that has been accepted for no fault automatic benefits insurance purposes in the cases cited by SN provide that “living together” means residing in the same dwelling. In those cases, the concepts of “living together” and “in a conjugal relationship” are not read together.

[37] The more holistic and expanded definition approach does not require that two persons reside in the same dwelling. What has been referred to as the “family law approach” sets out a number of indicia that the courts consider in order to determine if two persons live together in a conjugal relationship. That phrase “living together in a conjugal relationship” is taken to be a unitary phrase. All of the words must be read together in order to properly determine the meaning.

[38] It is also important to note that the OPCF 44R endorsement defines the term “relative” in a different manner than it does “spouse”. Section 1.2 defines relative as a person residing in the same dwelling house. I am of the view that if the legislature intended to require a spouse to be residing in the same dwelling house, they would have said that in the same manner as they did when defining “relative”. They did not. What has often been referred to as the principle of statutory interpretation: expressio unius exlcusio alterius has application to how the definition of spouse should be read, given the two different wordings that deal with the concepts of residing in the same dwelling vs. living together in a conjugal relationship.

[39] I adopt the more expansive and holistic interpretation of spouse. In my view, it is necessary when considering the concepts of dependency that are also dealt with in the Insurance Act and numerous insurance policies.

[40] The Ontario Court of Appeal dealt with the definition of spouse in an insurance matter in the case of Stephen v. Stawecki (2006), 32 R.F.L. (6th) 282:

[4] The appellant submits that we should impose a bright line test and conclude that as the respondent had not “moved in” with the deceased as of May 6, they were not living together at that time. We disagree. In our view, “moving in” would add no precision to the meaning of “live together” and it would not provide the clear and definitive test sought by the appellant. The case law recognizes that given the variety of relationships and living arrangements, a mechanical bright line test is simply not possible. In our view, to accept the appellant’s argument would be inconsistent with the flexible approach taken by the Supreme Court of Canada in M. v. H., [1999] 2 S.C.R. 3 in this area. We agree with the respondent that the jurisprudence interprets “live together in a conjugal relationship” as a unitary concept, and that the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting. The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship: see Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.); Thauvette v. Malyon, [1996] O.J. No. 1356 (Ont. Ct. Gen. Div.); Campell v. Szoke, [2003] O.J. No. 3471 (S.C.).

[41] Section 29 of the FLA extends the definition of spouse and gives rights and obligations to a person fitting that definition to Parts III (support), Parts IV (domestic contracts), and Part V (dependants claims in tort). I point this out to emphasise that a similar approach appears to be applicable to the Insurance Act. There must be a distinction in the Insurance Act to the parts that deal with Automatic Benefits and the parts dealing with Family Protection and Dependency.

[42] In the case of Holtzhauer v. Intact Insurance Company of Canada, 2023 ONSC 436, Broad J. set out the issue in this case at para. 20:

[20] The determination of the issue to be tried depends on whether Ryan is able to discharge his onus of proving, on a balance of probabilities, that on the date of the accident, he was a “spouse” of the named insured Kim under the definition referred to above—specifically, whether on that date, Ryan and Kim had “lived together in a conjugal relationship … of some permanence.”

[43] In Holtzhauer, the parties had a child, which brought them within subsection (i) of the definition of spouse. That is, they needed to show that they lived together in a conjugal relationship of some permanence and not for more than three years as set out in (ii).

[44] Justice Broad considered many of the cases that draw a line between the extended definition of spouse in family cases and the more restricted definition in some of the insurance cases. He stated, commencing at para. 90:

[90] As noted by Glustein J. in Wawanesa Mutual Insurance Co. v Unica Insurance Inc., 2021 ONSC 4266, at para. 74, the leading authority addressing the question of what constitutes a “conjugal relationship” is M. v. H., [1999] 2 S.C.R. 3, 62 C.R.R. (2d) 1, wherein Cory and Iacobucci JJ. stated, at paras. 59-60:

Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.) sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same-sex couples, there is agreement that same-sex couples share many other "conjugal" characteristics. In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is "conjugal".

Certainly an opposite-sex couple may, after many years together, be considered to be in a conjugal relationship although they have neither children nor sexual relations. Obviously the weight to be accorded the various elements or factors to be considered in determining whether an opposite-sex couple is in a conjugal relationship will vary widely and almost infinitely. The same must hold true of same-sex couples. Courts have wisely determined that the approach to determining whether a relationship is conjugal must be flexible. This must be so, for the relationships of all couples will vary widely.

[91] As exemplified by the authorities cited by the parties, much of the jurisprudence dealing with the definition of “spouse” in the automobile insurance context comprises arbitral decisions in relation to priority disputes among insurers. Recent Superior Court of Justice decisions on the issue have been appeals from arbitral decisions on such priority disputes: see e.g. ING Insurance Co. of Canada v. Co-Operators Insurance Co., 2013 ONSC 4885, per Leitch, J.; Royal & Sun Alliance Insurance Co. of Canada v. Desjardins Insurance Group, 2018 ONSC 4284, per Morgan J.; Intact Insurance Company v. The Dominion of Canada General Insurance Company, 2020 ONSC 7982, per Lemay J.; Wawanesa Mutual Insurance Co. v Unica Insurance Inc.).

[92] In relation to the question of the meaning to be applied to the phrase “live together,” Lemay J. in Intact Insurance Company v. The Dominion of Canada General Insurance Company, at para. 73 declined to apply the following passage at para. 51 of Leitch J.’s earlier decision in ING Insurance Co. of Canada v. Co-Operators Insurance Co.:

While I note that Molodowich makes clear that the fact that one party continues to maintain a separate residence does not preclude a finding that parties are living together in a conjugal relationship, it is difficult to accept that Jason and Amy "lived together" for the purpose of the spousal definition under the Act for the three-year period leading up to the accident. [Emphasis added.]

[93] Lemay J. declined to apply the underlined passage from ING Insurance Co. of Canada v. Co-Operators Insurance Co. on three bases:

1. the decision in ING Insurance Co. of Canada v. Co-Operators Insurance Co. did not consider the different statutory regimes;

2. the conclusion expressed is obiter; and

3. the conclusion must be considered in its entirety, including observations of Leitch J. at para. 50 of ING Insurance Co. of Canada v. Co-Operators Insurance Co. that suggest a narrower interpretation of the definition of spouse would be appropriate.

[94] Instead, Lemay J. followed the reasoning of Morgan J. in Royal & Sun Alliance Insurance Co. of Canada v. Desjardins Insurance Group, noting at paras. 75 (a) and (b) that two significant principles emerged from that decision:

(a) The interpretation of spouse under the Insurance Act is different than the interpretation of spouse under the family law statutes.

(b) “Live together in a conjugal relationship” needs to be interpreted with regard to the clear meaning of the two phrases. All of the words need to be given meaning. “Live together” means living in the same residence.

[95] Specifically, Lemay J. adopted the following passage from Royal & Sun Alliance Insurance Co. of Canada v. Desjardins Insurance Group, at para. 27, wherein Morgan J. drew a distinction between the interpretation of “spouse” in the insurance context and the family law context:

Unlike the Family Law Act, the Insurance Act provides automatic benefits to spouses regardless of need. It therefore requires a context-specific approach of its own. More specifically, the insurance context contains no imperative to deviate from the ordinary understanding of what it means for two persons to "live together". In the family law sense of the term, where dependency is crucial to the spousal support context, persons can "live together" — i.e. live interdependent lives — but maintain separate physical residences. In most non-family law contexts, and particularly in the insurance law context of automatic benefits without a broad sociological foundation on which to base those benefits, people who "live together" can be considered spouses, but only if they do so in the normal sense of those words and for the requisite period of time.

[96] In adopting the foregoing passage, Lemay J. found that “lived together” has a plain and ordinary meaning, namely, “occupy the same premises.”

[45] In Holtzhauer, Broad J. separates the definition of spouse into the two parts that are set out in the statute. He stated:

[97] It is important to note that Royal & Sun Alliance Insurance Co. of Canada v. Desjardins Insurance Group and Intact Insurance Company v. The Dominion of Canada General Insurance Company were both concerned with the first branch of the definition of “spouse” at s. 224(1)(c) of the Insurance Act which applies only to unmarried parties without children. In these cases, the definition imposes both a temporal and a continuity requirement - that the parties “have lived together in a conjugal relationship outside marriage, continuously for a period of not less than three years.” By contrast, in respect of parties with one or more children, there is no temporal requirement and no requirement that the parties have lived together continuously. All that is required is that they “have lived together in a relationship of some permanence.”

[98] No Superior Court cases were cited by counsel, nor has the court discovered any in its own review, which have considered the question of whether, under the second branch of the definition of “spouse” in s. 224(1)(c) of the Insurance Act, the two persons must be residing under the same roof to be found to be “living together in a conjugal relationship.”

[46] Justice Broad then assigns a different definition to persons living together in a conjugal relationship with children as opposed to living together for a period of three years without children. Justice Broad went on to find that the definition of spouse in Holtzhauer was met on the evidence before him. He found that the plaintiffs in that case lived together in a conjugal relationship of some permanence.

[47] I am of the view that there should be no different treatment between persons with a child and persons without a child, other than the defined temporal requirement. In my view, the expanded holistic approach to living together in a conjugal relationship still applies to both circumstances. The evidence must show that the conjugal relationship was for a period of not less than three years as opposed to a conjugal relationship of some permanence.

[48] When read together with the OPCF 44R endorsement, ss. 61 and 29 of the FLA and s. 224 of the Insurance Act all deal with the societal context of dependency. They must be interpreted in that context and not in the context of automatic benefits that may be provided in the no fault sections of the Insurance Act.

[49] I find that living together in conjugal relationship must be interpreted as a unitary concept. Residing in the same dwelling is not a requirement to determine if two persons are living together in a conjugal relationship. I find that the factors that must be considered to meet the requirements of living together in a conjugal relationship are expansive. The court must take a holistic approach and review multiple considerations. some of which are included in Molodowich.

[50] In considering the concept of living together in a conjugal relationship in the context of family dependency, I accept the comments of D. Summers J. in Naegels v. Robillard, 2019 ONSC 2662, as he outlines the directives of the Supreme Court of Canada and the Ontario Court of Appeal commencing at para. 24:

[24] In Hodge, the Supreme Court of Canada said cohabitation is a constituent element of a common law relationship but cohabitation is not synonymous with co-residence. “Two people can cohabit even though they do not live under the same roof and, conversely, they may not be cohabiting in the relevant sense even if they are living under the same roof.” (See paragraph 42). In keeping with Hodge, the Ontario Court of Appeal in Stephen v. Stawecki said a finding of cohabitation is not precluded by the fact that one party continues to maintain a separate residence. The court went on to say that considering the range of potential living arrangements between couples, a definitive, bright line test for cohabitation was not possible. The court in Stephen also noted that such a test would be inconsistent with the flexible approach taken in M. v. H., [1999] 2 S.C.R. 3, paragraph 60.

[51] At para. 25 of Naegels, the court cited Molodowich:

[25] In Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.) the court listed several factors to consider when determining whether parties are cohabiting or not. The shelter arrangements made by the parties is but one factor. The others include their sexual and personal behaviour, the services provided to one another, their social activities, the perception of the community, the economic ties and supports between them, and whether there are children. There can be many elements in each general category. The factors identified in Molodowich have been referred to in many cases over the past four decades including the Supreme Court of Canada’s decision in M. v. H.. The factors also received implicit approval in Hodge.

The Application of the Law to the Evidence in this Case

[52] Larry was seriously injured in a motor vehicle accident on September 20, 2019. He was hospitalized until October 23, 2019, when he died.

[53] Prior to his death, Yvonne and Larry had a 27-year committed relationship. Early in the relationship, they resided together for approximately three years. However, the evidence was unclear whether, even early on, they resided in the same dwelling for three years. According to Yvonne, they resided in the same dwelling house from 1992 to 1995. It was clear that they did not reside in the same dwelling for the three years immediately preceding the accident.

[54] Yvonne gave evidence that they could not reside in the same dwelling for extended periods of time due to Larry’s mental health challenges. He was diagnosed with bipolar disorder in or around the year 2000. When Larry was in a manic phase, being with him was intolerable. He was hospitalized due to his mental health issues and was discharged in April of 2000. Yvonne did not end their relationship during these periods. They simply could not be in the same residence. She attended at the hospital when he was hospitalized. After his discharge in April of 2000, Larry resided with Yvonne much of the time. However, he threw away his medication and became severely manic once again. Consequently, he was hospitalized a second time.

[55] After this second discharge, Yvonne and Larry shopped together for a bachelor apartment for Larry. They found one on Sanford Ave. in Hamilton. Yvonne’s house was on the Hamilton Mountain.

[56] Over the next five years, the pair spent a lot of time at Yvonne’s home. However, Larry would primarily reside in his bachelor apartment. Larry had severe mental health episodes in 2005 and 2009. He required further hospitalization. Yvonne was the one who would take him to the hospital.

[57] The last psychotic episode that Larry had was in early 2011. On that occasion, Larry admitted himself into the hospital and was in the hospital for three to four months. Yvonne stated that she visited him almost everyday.

[58] Although Larry’s mental health challenges were chronic and serious, they did not change the commitment Yvonne and Larry each had together. Yvonne and other witnesses described it as being “life partners.”

[59] Larry had a key to Yvonne’s residence and Yvonne had a key to Larry’s residence.

[60] Yvonne gave evidence that she and Larry got him a separate residence so that they could be together. The evidence established that the living arrangement assisted them in maintaining their relationship. According to Yvonne, if Larry had a mental health flair up, she would not have to ask him to leave, as that hurt the both of them.

[61] Yvonne stated that, although Larry had his own apartment, they were still together. Larry would stay with Yvonne at her residence on weekends and occasionally for extended periods after he was discharged from the hospital.

[62] Yvonne’s evidence was clear that she and Larry were always romantic with each other. They had a sexual relationship. They loved and needed each other. They were emotionally dependent on each other. Yvonne stated that they would have formally married but for his bipolar disorder. According to Yvonne: “we did our best and we made it work.”

[63] Larry and Yvonne held themselves out as a couple in an exclusive relationship to each of their families and to others. They attended most Hamel family functions for over 20 years. Yvonne’s co-workers were also aware of the close and loving relationship that they had. Everyone who knew them also knew of Larry’s mental health struggles.

[64] Yvonne describes her life with Larry in her affidavit. She stated that they did almost everything together. They did grocery shopping together and spoke to each other on the phone almost daily. They went on trips together. They played musical instruments together. Larry would do the outside gardening at Yvonne’s house. He also painted her house and laid a carpet for her.

[65] Larry did his laundry at Yvonne’s house, and they frequently cooked meals and ate together at her house.

[66] Yvonne had three rabbits at her residence, and it was Larry who looked after them when Yvonne was unavailable.

[67] In 2018, Yvonne took several university courses to finish a degree. That limited, somewhat, the time they could spend together, as Yvonne was busy studying and working at the same time.

[68] Nevertheless, they continued to be together as much as they could. In the year before the accident, Yvonne was working 30 hours per week while taking multiple university courses. She also had some health issue with her gall bladder. Despite this busy schedule, they still managed to be together at least 8 times per month, everyday during a vacation, and they still talked on the phone often. The more limited time together was strictly a function of Yvonne’s schooling and work commitments, and not a function of their commitment to each other.

[69] Yvonne put Larry on her HOOP pension as her beneficiary.

[70] Yvonne made Larry her emergency contact person.

[71] For the month that Larry was in the hospital prior to his death, Yvonne was with him consistently.

[72] The affidavit of Larry’s brother, Hammel, corroborated Yvonne’s evidence on all of the material issues with respect to them living as “life partners”.

[73] While Larry was in the hospital after the accident, Paul’s siblings and Yvonne had a “family discussion” about the need for a guardianship order to allow the family to address Larry’s property, finances, and medical decisions. The family did not want Yvonne to be prevented from making decisions due to the lack of a formal wedding ceremony and marriage certificate.

[74] Paul stated that: “my siblings and I wanted to ensure that Yvonne had spousal decision rights and that she was not treated as a friend without the ability to make decisions for Larry.” It was decided that Yvonne be place in a position to make personal care decisions involving Larry, including medical decisions. According to Paul, Yvonne had been front and centre for Larry’s medical needs for as long as she had known Larry.

[75] An application was made to the Superior Court pursuant to the Substitute Decisions Act, 1992, S.O. 1992, c. 30 and ultimately the court made an order granting Yvonne guardianship for the personal care of Larry prior to his death.

[76] Paul described Yvonne and Larry as “life partners who loved each other.” They both held themselves out as a long-term couple and Paul, along with all of Larry’s siblings, regarded them as spouses of one another.

[77] Paul describes Yvonne and Larry as interdependent, loving, and committed to each other right up until Larry’s death. After Larry died, Paul stated that Yvonne’s world changed. “Larry was her world.”

[78] Yvonne’s sister, Elizabeth Denny, also filed an affidavit that corroborates Yvonne’s and Paul’s description of the relationship between Yvonne and Larry.

[79] Due to health reasons, Larry gave up his car and the insurance he had on his car in 2019. From that point forward, Yvonne did a lot of the driving. She owned her own car that was insured with SN. In her insurance application with SN, she represented that she was single. She stated in her evidence that she did not know the implications of making that representation. I accept her testimony in this regard.

[80] I accept the uncontradicted evidence of the Plaintiffs respecting the nature of the relationship between Yvonne and Larry. The mere fact of not residing in the same dwelling house, in the circumstances of this case, cannot be a reason to find that Yvonne and Larry do not fit the definition of spouse.

It is important to observe that many spouses who are not married cannot reside in the same dwelling for uninterrupted periods of time because of serious medical issues of the other spouse. Nevertheless, they are no less loving spouses than those who do not have this similar health challenges.

[81] If this matter is allowed to proceed, Larry must fit within the definition of spouse under both s. 61 of the Family Law Act and the OPCF 44R family protection endorsement of the insurance policy.

[82] Applying the factors set out in Molodowich, I find that Larry and Yvonne lived together in a conjugal relationship for at least three years prior to the accident. They were spouses to each other.

[83] As a result of my findings as set out above, the Summary Judgment motion of SN is dismissed.

[84] If an agreement cannot be reached within 30 days, counsel may provide written submissions.

[85] The Fund is allowed to withdraw from this action after any ruling or agreement on costs.

Justice R.J. Harper

Released: March 28, 2023