Who is a “spouse” under the Insurance Act and OPCF 44R? [Boss Insurance]

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Holtzhauer v. Intact Insurance Company of Canada2023 ONSC 436

This recent Superior Court of Justice ruling stems from an incident where co-plaintiff Ryan Holtzhauer was a critically injured pedestrian in a collision involving a vehicle driven by Anthony Homer Peck, which was unregistered and uninsured at the time of collision. The other co-plaintiff in the action was Kim Melcher, who is the mother of Mr. Holtzhauer’s son. Mr. Holtzhauer and Ms. Melcher were never married, but they had an on-and-off relationship. Mr. Peck was noted in default in 2010.

Since Mr. Peck was uninsured, the joint 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 in accordance with the OPCF 44R uninsured person provisions of Ms. Melcher’s policy. Ms. Melcher claimed damages for loss of care, guidance and companionship, and for housekeeping and maintenance of the home 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 joint … while not in an automobile … who is struck by an uninsured or unidentified automobile. The defendant, Intact Insurance, approved Mr. Holtzhauer’s claim for accident benefits because it concluded that Mr. Holtzhauer was Ms. Melcher’s person.jointunder section 1.3 of the Ontario Automobile Policy (OAP1), which defines “joint” identical to Article 224(1) of the Insurance Act (see below).

Intact’s position was that its approval of Mr. Holtzhauer’s accident benefits claim is not determinative of whether he was an “insured” under Intact’s policy or whether he was the “jointfrom Ms. Melcher on the date of the collision.

The main issue before the Court was whether Mr. Holtzhauer could discharge his obligation, on a balance of probabilities, to prove that he is Ms. Melcher’s.joint» the day of the collision under the Insurance Act and the OPCR 44R.

The legislation

Section 224(1) of the Insurance Law defines a “joint”:

joint» designates one or the other of the two persons who,

(a) are married to each other.

(b) have entered into a voidable or voidable marriage together, 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 of marriage,

(i) continuously for a period of at least three years, or

(ii) in a relationship of some permanence, if they are the parents of a child.

OPCF 44R defines an “insured person” in Section 1.6(a)(iii) to include “the named insured and his joint … while … is not an occupant of an automobile who is struck by an automobile.

Section 1.10 of the OPCF 44R and Section 224(1) of the Insurance Law define “joint” Alike.

Applicants’ evidence

Mr. Holtzhauer and Ms. Melcher first met in 2005, and Ms. Melcher began staying at Mr. Holtzhauer’s residence shortly thereafter. Ms. Melcher became pregnant in the fall of 2005 and began living full time at Mr. Holtzhauer’s residence. Their son was born in April 2006. Ms. Melcher began working for Mr. Holtzhauer’s company in the fall of 2016. After that time, the couple had numerous incidents in which the Guelph Police Department (GPS ) or Family and Children’s Services (FCS) had to be called in to resolve heated arguments. There was a brief “no contact” order between the two. In the fall of 2008, Ms. Melcher moved with their son to Waterloo, but they continued to work together in Ms. Melcher’s new business until the collision occurred on June 30, 2009. Ms. Melcher looked after of Mr. Holtzhauer after the incident.

Proof of Intact

Intact Insurance relied on GPS and FCS records showing the volatile history between the pair, including numerous occasions when GPS or FCS were called upon to intervene in disputes between the two.


The Court began its analysis by noting that a “joint» as part of the Insurance Law is different from its definition in the context of family law. Neither the parties nor the Court have found any case law interpreting whether Article 224(1)(c) of the Insurance Law states that both people must reside under the same roof for it to be established that they “live together in a conjugal relationship”.

The Court noted arbitral decisions that held that the language of “a certain permanencein s. 224(1)(c)(ii) implies a relaxed requirement for couples with children, as opposed to the three-year time requirement in s. 224(1)(c)(i) . Judge Broad held that the distinction between couples with children and couples without children may be based on a greater need for insurance protection for couples with children.

Judge Broad concluded that a holistic approach should be taken and that couples do not need to live under the same roof to meet the definition of “joint”:

[108] In my view, there is no doubt that Ryan and Kim lived together in a marital relationship of some permanence for a considerable time during their relationship. I did not understand that Intact’s lawyer disputes this. Ryan’s testimony, supported by Barbara’s, was that he and Kim resided together in a bedroom in Barbara’s home in a sexual and emotional relationship for some time during Kim’s pregnancy at the fall of 2005 and continued after Carter was born in April 2006. They remained room sharing together in a sexual and emotional relationship, with brief interruptions when one of them, most often Ryan, left for a day or so. more after arguments. In the fall of 2006, there was an incident between them which led to the police coming in and imposing a “no contact order” on Ryan who Kim arranged to get lifted. after a week or two. However, after brief separations, they still got back together until June or July 2008 when Kim moved to live with friends in Hamilton.

Following Ms. Melcher’s move to Hamilton, Judge Broad found that the couple maintained their emotional and sexual relationship and continued to live together in a conjugal relationship of a certain permanence, but not under the same roof. The couple had many instances of getting back together and resuming cohabitation. Judge Broad found that the couple’s marital relationship had not ended when the collision occurred, even though GPS recordings indicated that Mr. Holtzhauer referred to Ms. Melcher as his “ex” on numerous occasions:

[124] In this case, I also find that at the time of the accident, neither Ryan nor Kim considered the relationship to be over or, by their conduct, convincingly demonstrated that this state of mind was a of one mind. Therefore, their marital relationship had not ended until the accident on June 30, 2009.

Judge Broad found that the context of the events before and after the collision indicated that the couple did not consider their relationship to be over:

[128] Ryan testified that for the month before the accident he was living with Kim in Silverbirch and their relationship remained sexual and emotional. He stated that he loved her at that time. On the night of the accident, Ryan was driving a long distance from Guelph to Waterloo to help Kim through the difficulties she was having with the truck that had broken down. It was not the behavior of a person who had formed a firm intention not to pursue the relationship.

[133] Ryan’s acceptance of Kim’s care and assistance, rather than accepting Barbara’s offer to care for him, also demonstrates his intention to maintain the marital relationship with Kim.


The Court found that Mr. Holtzhauer met the definition of “joint” under the Insurance Law and OPCF 44R, and was therefore considered an insured under Ms. Melcher’s policy at the time of the collision.