When is a Cohabitant a Spouse for Ontario Auto Insurance Purposes?

The Canadian family is changing. According to Statistics Canada, in 1991, 42% of Canadians were married, and 5.5% were cohabiting with another person as a couple. By 2017, the percentage of Canadians who were married had fallen to less than 39%, and the percentage who were cohabiting had jumped to almost 10%.

Social shifts like these don’t always match up with what existing law provides for. As a result, individuals, government agencies, and other organizations can sometimes find themselves dealing with unexpected circumstances without clear legal guidance. An Ontario family law lawyer could probably come up with dozens of examples of this problem in action.

But recently, the line between cohabitants and spouses came up in a court case that is closer to the areas in which we practice. That case, called Royal & Sun Alliance v. Desjardins/Certas, turned in significant part on whether a live-in girlfriend was a “spouse” covered by her boyfriend’s auto insurance policy.

• The Ontario Insurance Act specifies which insurer is responsible for accident benefits owed to a person injured in an automobile accident.
• An insured person’s spouse can make a claim for statutory accident benefits against his or her spouse’s auto insurance policy.
• Unmarried couples who live together may qualify as spouses for auto insurance purposes if they meet certain requirements detailed in the Insurance Act and the Statutory Accident Benefits Schedule.

Background: Priority of Coverage for Statutory Accident Benefits

Understanding the issues in Royal & Sun Alliance requires a bit of background knowledge about Ontario’s automobile insurance system. As we’ve discussed before, automobile insurance in Ontario has two basic components: no-fault statutory accident benefits (SABs) and tort coverage:

• When an Ontarian is injured in a motor vehicle collision, he or she normally files a SABs claim with his or her own insurance carrier, regardless of who was at fault in causing the collision.
• If the other driver was at fault in causing the accident, then the injured person will have a tort claim against him or her, and the other driver’s insurance will pay for the injured person’s damages.

But sometimes, a person injured in an automobile accident will be uninsured. As a result, the Insurance Act includes a rule of priority for which insurance policy is liable for SABs. For a person injured while in a car, section 268(2)(1)specifies that the following insurer is liable for SABs:

• The insurance company that insures an automobile owned by the injured person.
• The insurance company that covers the automobile the injured person was riding in at the time of the accident.
• The insurance company for any other automobile involved in the accident.
• The Motor Vehicle Accident Claims Fund (MVACF).

For a non-occupant—like a pedestrian—the priority rules (found in section 268(2)(2)) are a bit different. In that case, responsibility for SABs belongs to:

• The insurance company that insures an automobile owned by the injured person.
• The insurance company that covers the automobile that struck the injured person.
• The insurance company for any other automobile involved in the accident.
• The MVACF.

The Royal & Sun Alliance case involved that second scenario: a non-occupant injured in a motor vehicle accident.

Royal & Sun Alliance v. Desjardins/Certas: Are Cohabitants Spouses?

In February 2014, Helen Halliday was struck by a car in the parking lot at her workplace. She filed an accident benefits claim with Royal & Sun Alliance (RSA), the insurer of her live-in boyfriend, David Zorony, claiming that she was his spouse. In Ontario, an insured person’s spouse is covered by that persons’ auto insurance.

RSA paid those benefits to Halliday, but sought reimbursement from Desjardins/Certas, the insurance company that insured the driver who struck her. RSA’s argument was that Halliday and Zorony were merely cohabitants, not spouses, and so she wasn’t covered by his insurance. As a result, under the Insurance Act’s priority rules, Desjardins/Certas should be on the hook for her accident benefits.

The question for the Superior Court of Justice, then, was whether Halliday was Zorony’s spouse at the time of the accident. The Insurance Act defines “spouse” for auto insurance purposes to mean either of two persons who:

• Are married to each other
• Have entered into a void or voidable marriage in good faith
• Have lived together in a conjugal relationship outside marriage either continuously for a period of at least three years or in a relationship of some permanence if they are the parents of a child

Zorony and Halliday did not meet either of the first two alternatives, and they did not have a child together. Consequently, Halliday could only be Zorony’s spouse for SABs purposes if the two had “lived together in a conjugal relationship . . . continuously for a period of not less than three years.”

In this case, the couple had only lived together for about one year at the time of the accident.

The Arbitrator’s Error

But that didn’t stop the arbitrator whose decision the Superior Court of Justice was reviewing from finding that Halliday and Zorony satisfied the definition of “spouse.” The arbitrator reasoned that the three-year limitation was not as strict as it sounds.

In making that determination, the arbitrator relied on prior cases interpreting a similar definition of “spouse” found in the Family Law Act used in defining spousal support obligations.

But as the Superior Court of Justice explained in reversing the arbitrator’s decision, although the language used in the Family Law Act and Insurance Act may be similar, the policies underlying the acts are different. So, although it may be appropriate to interpret “spouse” flexibly for purposes of spousal support under the Family Law Act, the same considerations do not apply to the issue of statutory accident benefits under the Insurance Act.

In short, to be a “spouse” under the Insurance Act requires closer conformity to the statute’s definition than is required in Family Law Act support cases. RSA was right, according to the Court: although Halliday and Zorony were cohabitants, they were not spouses, so Desjardins/Certas was responsible for her statutory accident benefits.

Getting Help with Statutory Accident Benefits in Ontario

Luckily for Halliday, in Royal & Sun Alliance her entitlement to statutory accident benefits was not in question. The only issue was which of two insurers would ultimately be responsible for paying those benefits.

But in many other SABs cases in Ontario, an insurance company will try to deny a claim entirely or limit the amount to which an injured person is entitled. In such cases, the assistance of an Ontario accident benefits lawyer is critical to an injured person’s financial recovery.

Preszler Injury Lawyers is an Ontario personal injury firm with nearly 60 years of experience helping injured Ontarians hold negligent drivers and their insurance companies responsible. In that time, we have helped countless clients obtain the statutory accident benefits or other compensation to which the law entitles them.

If you’ve been injured in an automobile accident in Ontario, contact us today for a free consultation about how we can help you on the road to recovery.