September 23, 2013

Accident Benefits Update – Not Living Together? They Might Still be “Spouses” under the Insurance Act

 ACCIDENT BENEFITS UPDATE

For the week of September 23 to September 27

ING Insurance Company of Canada v. Co-Operators Insurance Company, 2013 ONSC 4885 (CanLII)

MVC: May 28, 2008. Jason Orr sustained injuries in a collision. The issue in dispute was whether Jason was entitled to accident benefits through Amy Gordon’s policy of insurance under the definition of “spouse” in the Insurance Act. Arbitrator Bruce Robinson found that they were “spouses”. The Insurer, ING Insurance Company of Canada, appealed.

ANALYSIS

Jason and Amy were not married. As a result, in order to be “spouses” under the Insurance Act, Jason and Amy must have lived together continuously in a conjugal relationship outside of marriage for a period of not less than three years prior to the collision.

The Court held that the arbitrator applied the correct law in determining conjugal relationship by considering the generally accepted characteristics of conjugal relationships: shared shelter, sexual and personal behavior, services, social activities, economic support and children, as well as a societal perception of a couple. Although these elements may be present in varying degrees and not all are necessary for the relationship to be found conjugal, the criteria must be applied to the full three years as a whole. The Court noted that the fact that one party continues to maintain a separate residence does not preclude a finding that parties are living together in a conjugal relationship.

As of 3 years prior to the collision, Jason and Amy were 17 and in high school. Jason lived with his parents. From May 2005 to September 2005, Amy lived exclusively with her parents. Starting September 2005, Amy spent weekends and holidays at Jason’s family home. Between November 2007 and May 2008, Amy increased the time spent at Jason’s family home to more than 50% of her nights, while staying at her own home the rest of the time. They did not share finances or services. They identified themselves as single on various documents.

The Court allowed the appeal and held that Amy and Jason were not spouses at the time of the collision, and as such, the Insurer was not liable to pay accident benefits to Jason.

IMPLICATIONS

Insurance Act, it is important to recognize that there are circumstances where two people who are not living with each other may still be “spouses”. To properly and fully investigate an individual’s rights to benefits under theInsurance Act, we must inquire into the details of his or her relationship with a significant other. Are they providing various household services to each other, assisting each other financially, and/or portraying themselves as a couple to society? If the circumstances are such that the individual can be found to be a “spouse”, the individual will be a “person insured under the contract” and is entitled to benefits under his or her spouse’s automobile insurance policy.

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