Welcome to the final part of our series exploring the definition of “spouse” under section 224(1) of the Insurance Act. If you’re not feeling totally savvy on spousal status just yet, don’t fret – you will be by the end of this read!
In Part One, we learned that whether a claimant qualifies as a “spouse” can significantly impact AB coverage obligations, such that priority of their AB claim can be entirely shifted to a different insurer. We looked at the three-part definition of “spouse” in section 224(1) but focused on individuals who are legally married – the first of the three statutory definitions. We also reviewed priority disputes which hinged on what it means to be “legally married” and saw that it’s not as straightforward as one may think.
In Part Two, we delved into the second part of the definition, focusing on priority disputes that hinged on whether two individuals had entered into a voidable or void marriage in good faith. We saw that, under this strand of the definition, the claimant’s belief that they were entering a valid marriage was the driving factor in the analysis.
Now, in this third and final instalment of the spousal status series, we explore what is perhaps the most fact-driven and complex part of the three-part definition: those relationships involving individuals who have “lived together in a conjugal relationship” outside of marriage. As the title suggests, determining spousal status under this part of the definition is nothing short of, well – complicated.
Recap: What is a “Spouse”
But first, remember that the term “spouse” is defined in Part VI of the Insurance Act as either of two individuals who:
- are married to each other;
- have entered into a marriage to each other that is voidable or void, in good faith on the part of the person asserting a right under the Act; or
- have lived together in a conjugal relationship (outside of marriage) continuously for at least 3 years, or in a relationship of some permanence and are the biological or adoptive parents of a child.
The previous parts of this series have already explored definitions #1 and #2. Now, onward to definition #3!
Definition #3: Conjugal Relationships
Have you ever asked someone about their marital status and they reply with “it’s complicated”? Perhaps you’ve heard it while observing an Examination Under Oath. It’s not an uncommon answer, and usually stems from relationships such as those we are focusing on in this article: those where the couple has either lived together and/or had a child together – without having followed the traditional path of marriage.
The phrase “conjugal relationship” is not defined in the Act, but it is generally meant to describe a relationship, outside of marriage, that is like marriage. Case law suggests that the following are the essential indicators of a conjugal relationship:
- Shelter: Did the parties live under the same roof, and if so, for how long?
- Sexual and Personal Behaviour: Was there an intimate, romantic relationship?
- Services: Did the parties perform household tasks for each other (e.g. cooking, laundry)?
- Social: Did they present themselves to others as a couple?
- Societal: Were they perceived by the community as being a couple?
- Support (Economic): Was there financial interdependence or joint ownership of property?
- Children: Did they raise children together, or co-parent in a family unit structure?
Case law has also consistently emphasized that no single factor is determinative of whether two people are in a conjugal relationship. The inquiry requires a more holistic, qualitative approach.
Living Together
Where the parties do not have a child together, in order to be considered to be in a conjugal relationship and attract spousal status, they need to have been living together, continuously, for at least 3 years, as of the time of the accident.
In the past, arbitrators have tried to apply family law principles to find that two people were “living together”, even when they did not actually reside at the same residence, for at least part of the three-year period. However, those decisions have been successfully appealed and the courts have made it abundantly clear, for example in Royal & Sun v. Desjardins (2018) and in Intact v. Dominion et al. (2020), that “living together” means doing so in the same residence.
Parenthood
Where the parties do have a child together, either by birth or adoption, a shorter cohabitation period (i.e. less than 3 years) can attract spousal status under section 224(1).
Importantly, the presence of a child does not by itself create spousal status. The parties must also be in a relationship of some permanence – an ambiguous phrase that is often at the center of such priority disputes. However, it is known to generally depend not on the duration of the cohabitation, but rather the intention and commitment of the parties.
Definition #3 in the Case Law
Compared to definition #3, the other definitions in s. 224(1) seem pretty binary. Either you’re legally married, or you’re not; either your marriage is void, or it is valid.
By contrast, spousal status under definition #3 depends more on the totality of the circumstances. The evidence required can understandably be extensive, and disputes are therefore more common. The following cases are just a mere snippet of the vast definition #3 case law.
Certas v. North Blenheim (2006)
In this case, the claimant, following his involvement in a motor vehicle accident, applied for accident benefits to Certas. Certas insured the claimant’s girlfriend, who he contented was his common law “spouse”. As of the time of the accident, the claimant and his girlfriend had cohabitated together for about one year, and they were expecting their first child, who was due to be born (and was in fact born) about 6 months post-accident. The case hinged on whether the subsequent birth of the couple’s child conferred spousal status on the claimant for the purpose of seeking AB coverage from his girlfriend’s insurer. More specifically, the issue was whether a claimant who was involved in conceiving a child born after the accident should be considered to be a parent of that child as of the day of the accident.
The arbitrator concluded that the parties were not spouses according to definition #3 of section 224(1). In doing so, she considered the en ventre sa mere principle – a principle used in other circumstances to enable an unborn child, subsequently born live, to claim a benefit it would have been entitled to had it been born at that time – and whether it could be used by the claimant to assert entitlement to ABs under his girlfriend’s policy as if the child had been born by the time of the accident. The arbitrator found that the principle could not apply; its use could not be extended to benefit anyone other than the child. The arbitrator also considered well-established case law that a fetus is not a person (i.e. a child) until it is born. As such, on a plain meaning of the words in definition #3, the claimant was not a “parent of a child” on the date of loss.
Aviva v. TD Insurance (2020)
This case is a prime example of using a holistic, qualitative approach, and looking at the totality of the circumstances. It involves a claimant who applied for ABs to his partner’s insurer following an accident. They had been a couple for 10 to 15 years. They also had a child together years before the accident, and they planned to have another child together prior to the accident. The wrinkle: they never lived together.
The arbitrator therefore had to consider whether “living together” in the second strand of definition #3 (i.e. that pertaining to parents) was to be interpreted as literally as it is for the first strand of the definition, because recall that, under the first strand (pertaining to those who do not have children together), the courts require that the couple actually reside in the same residence, in order to be considered as “living together”. In doing so, the arbitrator gave more weight to the permanence of their relationship and, consequently, to factors other than their living arrangements. While they didn’t live together, the couple had been in an exclusive intimate relationship for nearly a decade; the claimant was at his partner’s house almost every day; they often went out for dinners and movies; they also frequently went out as a family with their daughter to the park and swimming pool; and they spent holidays and other time with each others’ families, suggesting that their families treated them as a committed, married-like couple. Ultimately, the arbitrator found that the couple were in fact spouses, despite their living arrangements. They spent significant time together, they both engaged in parenting their daughter as well as other things committed couples do, and they were supportive of each other – which was evident from the fact that the claimant’s partner moved in with him following the accident to care for him.
Notably, this case has not been appealed. As such, there is now caselaw supporting that even where a couple does not live in the same residence, as long as they have a child together and their relationship is one of permanence, they are “spouses” for the purposes of the Act.
Conclusion & Key Takeaways
When investigating whether a claimant is a “spouse” under definition #3, insurers must approach the inquiry carefully and thoroughly. Keep these key steps in mind:
1. Determine Which Test Applies
- Ask whether the claimant and named insured were married.
- If not, confirm whether they had lived together for at least three years (clause i), or
- If they are parents of a child, whether their relationship had some permanence (clause ii).
2. Gather Documentary Evidence
- Lease agreements, property records, or utility bills showing shared residence.
- Joint bank accounts, insurance policies, or tax filings demonstrating financial interdependence.
- Birth certificates naming both individuals as parents.
3. Interview the Claimant and Named Insured
- Ask about the nature and duration of the relationship.
- Probe for facts about how they presented themselves socially.
- Inquire about how the finances were handled for the home (e.g., who paid the rent, for groceries, were the expenses split or shared, etc.)
- Ask about vacations, holidays spent together, and joint plans.
4. Consider Witness Statements
- Friends and family can provide context on how the couple was perceived.
5. Look for Contradictory Evidence
- Were they claiming to be single on official documents? (And does this appear to be accurate, or for the purpose of claiming a benefit of some kind?)
- Any known periods of separation?
- Evidence of separate lives or other relationships?
Ultimately, determining whether two people are spouses under section 224(1) of the Insurance Act is a nuanced exercise. This is especially so in ‘common law’ scenarios involving couples who live together or have children together outside of marriage. In these scenarios, the exercise is even more …complicated. It’s simply not enough to rely on labels. What matters is the substance of the relationship.
Understanding cohabitation, parenting, and conjugal partnership is essential. And thorough investigation into the nature of the relationship – its duration, stability, and the parties’ intentions – is key. But with careful investigation, insurers can make informed and defensible decisions when spousal status is in dispute.
And with that, we conclude this series; thanks for following along!
See Royal & Sun Alliance Insurance Co. of Canada v. Desjardins Insurance Group, 2018 ONSC 4284.
See also Intact Insurance Co. v. Dominion of Canada General Insurance and Wawanesa Mutual Insurance Co., 2020 ONSC 7982.
See also Certas Direct Insurance Company v. North Blenheim Mutual Insurance Company (2006) (Arbitrator S. Novick).
See also Aviva Canada Inc. v. TD Insurance Company (2020) (Arbitrator S. Novick).
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