Who is a “Spouse” Under the Insurance Act and OPCF 44R?

Who is a “Spouse” Under the Insurance Act and OPCF 44R?

Holtzhauer v. Intact Insurance Company of Canada, 2023 ONSC 436

Written By: Lindsay Charles and Cody Malloy, Student-at-Law

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

Since Mr. Peck was uninsured, the co-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 pursuant to the OPCF 44R uninsured provisions of Ms. Melcher’s policy.  Ms. Melcher claimed damages for loss of care, guidance and companionship, and for housekeeping and home maintenance 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 or her spouse …  while not the occupant of an automobile … who is struck by an uninsured or unidentified automobile.”  The Defendant, Intact Insurance, approved Mr. Holtzhauer’s application for Accident Benefits because they found Mr. Holtzhauer to be Ms. Melcher’s “spouse” under section 1.3 of the standard Ontario Automobile Policy (OAP1), which defines “spouse” identically as section 224(1) of the Insurance Act (see below).

Intact’s position was that its approval of Mr. Holtzhauer’s application for Accident Benefits is not determinative of the question of whether he was an “insured” under the Intact policy or was the “spouse” of Ms. Melcher as of the date of the collision.

The main issue before the Court was whether Mr. Holtzhauer could meet his onus, on the balance of probabilities, to prove he is Ms. Melcher’s “spouse” on the day of the collision under the Insurance Act and the OPCR 44R.

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” in section 1.6(a)(iii) as including “the named insured and his or her spouse … while … 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 Act define “spouse” identically.

Plaintiffs’ 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 fall of 2005 and began living at Mr. Holtzhauer’s residence full time.  Their son was born in April of 2006.  Ms. Melcher started working for Mr. Holtzhauer’s business in fall of 2016.  After this time, the couple had numerous incidents in which the Guelph Police Service (GPS) or Family and Child Services (FCS) had to be called to resolve heated arguments.  There was a brief “no contact” order between the two.  In fall of 2008, Ms. Melcher moved with their son to Waterloo, but they kept working together under Ms. Melcher’s new business until the collision occurred on June 30, 2009.  Ms. Melcher cared for Mr. Holtzhauer following the incident.

Intact’s Evidence

Intact insurance relied on records from GPS and FCS showing the volatile history between the couple, including the numerous occasions in which the GPS or FCS were called to intervene in disputes between the two.


The Court began its analysis by noting that a “spouse” within the context of the Insurance Act is different from its definition in the family law context.  Neither the parties nor the Court found case law interpreting whether section 224(1)(c) of the Insurance Act mandates that the two persons must be residing under the same roof to be found to be “living together in a conjugal relationship”.

The Court noted arbitral decisions that viewed that the language of “some permanence” in section 224(1)(c)(ii) implies a relaxed requirement for couples with children, as opposed to the three-year temporal requirement found in section 224(1)(c)(i).  Justice Broad considered 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.

Justice Broad found that a holistic approach should be taken, and that couples do not need to be living under the same roof to meet the definition of “spouse”:

[108]      In my view, there is no question that Ryan and Kim did live together in a conjugal relationship of some permanence for a considerable time during their relationship. I did not understand counsel for Intact to dispute this. Ryan’s evidence, supported by that of Barbara, was that he and Kim resided together sharing a bedroom in Barbara’s home in a sexual and emotional relationship from some time during Kim’s pregnancy in the fall of 2005 and continued following Carter’s birth in April 2006. They remained together sharing a bedroom in a sexual and emotional relationship, with brief interruptions when one of them left, most often Ryan, for a day or more following arguments. In the fall of 2006, there was an incident between them which led to police involvement and the imposition of a “no-contact order” on Ryan which Kim arranged to have lifted after one or two weeks.  However, following brief separations, they always got back together until June or July 2008 when Kim left to reside with friends in Hamilton.

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

[124]      In the case at bar, I likewise find that at the time of the accident, neither Ryan nor Kim regarded the relationship as being at an end nor, by his or her conduct, demonstrated in a convincing manner that that state of mind was a settled one. Therefore, their conjugal relationship had not ended prior to the accident on June 30, 2009.

Justice Broad found that the context of the events prior to and after collision occurred indicated that the couple did not see their relationship as over:

[128]      Ryan testified that for the month prior to the accident, he was living with Kim at Silverbirch and their relationship remained sexual and emotional. He stated that he loved her at that time. On the evening of the accident, Ryan was walking a long distance from Guelph to Waterloo to help Kim with difficulties she was having with the truck which had broken down. This was not the conduct of a person who had formed a settled intention not to continue 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 spousal relationship with Kim.


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

Lindsay Charles


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