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 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

Security National's position was that neither Yvonne nor Larry meet the definition of "spouse", since neither resided in the same dwelling within the last three years prior to the accident. Security National relied on a line of cases where a more restrictive definition of spouse applied to no fault benefits. In these cases, there was a requirement for the couple to live in the same dwelling to be considered spouses.

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. Intact Insurance Company of Canada, 2023 ONSC 436, which we recently blogged about. Justice Harper agreed with Holtzhauer's usage of the FLA's expanded definition of spouse and applied it to this case in favour of the Plaintiffs. Furthermore, Justice Harper rejected the cases cited by Security National:

[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. Justice Harper found clear evidence of romance, a sexual relationship, and emotional dependence. Furthermore, friends and co-workers were aware of their relationship, and they attended each other's family functions.


The Court dismissed the motion for summary judgment. Justice Harper found that Yvonne and Larry were spouses of each other, and that they lived together in a conjugal relationship for at least three years prior to the accident:

[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.