When A Spouse Is Not A Spouse

The Superior Court has recently had the opportunity to revisit an issue that has not been addressed by the courts in twenty years: whether the Family Law Act definition of "spouse" applies to the Insurance Act definition of "spouse". For ease of reference, both statutes in part define a spouse as being someone "who has lived together in a conjugal relationship, whether inside or outside marriage" with the other person for a requisite period of time. Under the Insurance Act, the requisite period of time is three years.

In Royal and Sun Alliance Company of Canada v. Desjardins/Certas, 2018 ONSC 4284 (CanLII), Justice E.M. Morgan, was tasked with judicially reviewing the private arbitration decision of Shari Novick, which found that RSA was the priority insurer for an accident benefits claim involving the claimant, Ms. Halliday, following her involvement in a motor vehicle accident that occurred in March 2014. Arbitrator Novick found that Ms. Halliday was the spouse, as defined in the Insurance Act, of RSA insured Mr. Zorony. Ms. Halliday and Mr. Zorony had been seriously dating since 2008 and had moved in together in February/March 2013. Prior to moving in together, the couple maintained separate residences and spent the weekends together, usually at Mr. Zorony's home.

Arbitrator Novick reviewed the case law which dealt with the definition of spouse under the Family Law Act, noting that the definitions in the Family Law Act and the Insurance Act are the same. Case law had developed in the family law context to apply appropriate flexibility to the definition of spouse which requires a more global or unitary approach and focuses on how the couple is socially perceived. It was acknowledged that a literal interpretation of the definition would seem to necessitate that the couple actually live together (ie. in the same residence) but this literal interpretation of the definition was rejected by the arbitrator in favour of the family law interpretation that favours a more inclusive approach. Arbitrator Novick eventually found that despite only living together in the same residence for a year before the...