This recent
Plaintiff
The Legislation
Section 224(1) of the Insurance Act defines a "spouse":
"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 asserting a right under this Act. or
(c) have lived together in a conjugal relationship outside marriage,
(i) continuously for a period of not less than three years, or
(ii) in a relationship of some permanence, if they are the parents of a child.
The OPCF 44R defines an "insured person" as including "the named insured and his or her spouse ... while ... not an occupant of an automobile who is struck by an automobile."
The OPCF 44R and section 224(1) of the Insurance Act define "spouse" identically.
Positions of the Parties
The MVACF supported the position of the Plaintiffs. The Plaintiffs took the position that the more expanded definition of "spouse" in the Family Law Act (FLA) should apply in this case, which does not require a couple to reside in the same dwelling to be considered spouses of each other.
Analysis of the Law
The right for Yvonne to sue as a spousal dependant of Larry is rooted in section 61(1) of the FLA. The Plaintiffs relied on the following definitions from section 29 of the FLA:
"dependant" means a person to whom another has an obligation to provide support under this Part;
"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
If Yvonne meets within the definition of spouse in section 61 of the FLA, she would then be a "person entitled to maintain an action against the inadequately insured person" as per section 1.3 of the OPCF 44R. The Court noted that the definition of spouse in section 1.10 of the OPCF 44R and section 29 of the FLA are the same, except for section 29's mention of "conjugal relationship".
The Court cited Holtzhauer v.
[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.
The Court found that residing in the same dwelling is not a requirement within the context of a conjugal relationship:
[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.
Applying the Law to the Case
Larry and Yvonne had been in a 27-year committed relationship prior to Larry's death. They resided together for about three years early in their relationship, but they did not do so in the three years leading up to Larry's death.
Yvonne's evidence was that they couldn't reside together due to Larry's mental health issues. Extensive evidence was submitted to the Court demonstrating Larry's history of mental illness. However, they had keys to each other's residences. Larry occasionally stayed at Yvonne's residence on weekends.
Conclusion
The Court dismissed the motion for summary judgment.
[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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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