Who Is A "Spouse" Under The Insurance Act And OPCF 44R?

• Law Firm: McLeish Orlando LLP
• Subject Matter: Insurance, Family and Matrimonial, Family Law, Insurance Laws and Products
• Author: Ms Lindsay Charles and Cody Malloy (Summer Student)
• Published date: 25 April 2023

Holtzhauer v. Intact Insurance Company of Canada, 2023 ONSC 436

This recent Superior Court of Justice decision arises from an incident where the co-Plaintiff, Ryan Holtzhauer, was a pedestrian seriously injured in a collision involving a vehicle driven by Anthony Homer Peck, who was unlicensed and uninsured at the time of the collision. The other co-Plaintiff in the action was Kim Melcher, whom is the mother of Mr. Holtzhauer's son. Mr. Holtzhauer and Ms. Melcher were never married, but they had an on and off again relationship. Mr. Peck was noted in default in 2010.

Since Mr. Peck was uninsured, the co-Plaintiffs named Intact Insurance as a Defendant because Ms. Melcher was a named insured under her automobile insurance policy with Intact Insurance. As such, Mr. Holtzhauer's claims against Intact Insurance were pursuant to the OPCF 44R uninsured provisions of Ms. Melcher's policy. Ms. Melcher claimed damages for loss of care, guidance and companionship, and for housekeeping and home maintenance under section 61 of the Family Law Act.

Section 265(2) of the Insurance Act extends uninsured coverage to a 'person insured under the contract', which includes 'the insured and his or her spouse ' while not the occupant of an automobile ' who is struck by an uninsured or unidentified automobile.' The Defendant, Intact Insurance, approved Mr. Holtzhauer's application for Accident Benefits because they found Mr. Holtzhauer to be Ms. Melcher's 'spouse' under section 1.3 of the standard Ontario Automobile Policy (OAP1), which defines 'spouse' identically as section 224(1) of the Insurance Act (see below).

Intact's position was that its approval of Mr. Holtzhauer's application for Accident Benefits is not determinative of the question of whether he was an 'insured' under the Intact policy or was the 'spouse' of Ms. Melcher as of the date of the collision.

The main issue before the Court was whether Mr. Holtzhauer could meet his onus, on the balance of probabilities, to prove he is Ms. Melcher's 'spouse' on the day of the collision under the Insurance Act and the OPCR 44R.

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...