Spouses Do Not Have To Reside In The Same Dwelling To Meet The Definition Of "Spouse" In The Insurance Act And OPCF 44R

• Published date: 19 May 2023
• Subject Matter: Insurance, Transport, Technology, Rail, Road & Cycling, Insurance Laws and Products, Security
• Law Firm: McLeish Orlando LLP
• Author: Ms Lindsay Charles and Cody Malloy (Summer Student)

This recent Superior Court of Justice decision arises from a pedestrian motor vehicle collision where Larry Hamel was struck by an unidentified vehicle on September 20, 2019. Larry died as a result of his injuries one month after the collision.

Plaintiff Yvonne Moelker, who was in a 27-year committed relationship with Larry at the time of the collision, was a named insured under a motor vehicle insurance policy with Security National. The Plaintiffs sued Security National, the Motor Vehicle Accident Claims Fund (MVACF) and the unidentified driver and owner of the car that hit Larry. The Plaintiffs advanced claims against Security National on the basis that they were entitled to coverage under the OPCF 44R Endorsement of Yvonne's policy.

Security National denied that the Plaintiffs were entitled to coverage under Yvonne's policy, either under its unidentified automobile or OPCF 44R provisions. For the Plaintiffs to be entitled to coverage under the unidentified automobile portions of Yvonne's policy, Security National argued that Larry would have to meet the definition of "person insured under the contract" under section 265 (2) of the Insurance Act, which is contingent upon Yvonne and Larry being "spouses" within the meaning of section 224 (1) of the Insurance Act and s. 1.10 of the OPCF 44R endorsement. Security National maintained that Larry could not and did not meet the definition of "spouse" due to the fact that Larry and Yvonne had separate residences.

Security National brought a summary judgment motion to have the action dismissed because neither Larry nor Yvonne were qualified to meet the definition as an "insured person" under Yvonne's insurance policy and the OPCF 44R of the Security National policy. If the Plaintiffs succeeded in this motion, they could seek recovery under the $1,000,000 limit as per Yvonne's policy. If the Security National won the motion, the Plaintiffs would only be able to seek recovery up to $200,000 under the MVACF.

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...