January 29, 2019 by Greg Meckbach
A dispute over what exactly constitutes a “household” in a home insurance policy has reached the Court of Appeal for Ontario.
Several members of the Weiner family were sued after a person drowned in 2010 in a vacation home on Lake Eugenia, about 70 kilometres west of Barrie.
The homeowner was Enid Weiner, who had moved to a nursing home in 2008 or 2009 and has since passed away.
The home was insured by Intact. Enid Weiner was the only named insured, but the policy provided liability coverage for relatives of the named insured while those relatives were “living in the same household” as the named insured.
Whether this means Intact is also providing liability coverage for Enid Weiner’s adult son, Scott Weiner, was a source of disagreement among judges and insurers alike.
Scott Weiner, along with his wife and daughter, were named defendants in the drowning-related lawsuit. Also named was the estate of Enid Weiner. Scott Weiner used his mother’s house as a cottage but did not live there permanently.
As it stands, TD has lost its case.
“The mere fact of co-residence is not enough to constitute membership in a household,” wrote Court of Appeal for Ontario Justice Bradley Miller in Ferro v. Weiner, released Jan. 28, 2019.
Initially, Justice Pamela Hebner of the Ontario Superior Court of Justice ruled in favour of TD. In her ruling, released Apr. 12, 2018, she ordered Intact to pay $62,500, or half the cost of settling the lawsuit.
Justice Hebner found that Scott Weiner was in the same household as his mother. He came to the cottage when he wished and took care of it as if it were his own place.
But Justice Miller of the appellate court countered that, at the time of the accident, Enid was living in a nursing home.
“Scott lived with his family in the city and had organized his life around his urban household. Prior to entering the nursing home, Enid lived with Scott’s brother, and not with Scott and his family,” added Miller, citing several court rulings, including Wawanesa Mutual Insurance Co. v. Bell, released in 1957 by the Supreme Court of Canada.
Wawanesa v. Bell arose after Murley Miller was killed in 1955 while driving a Vauxhall car owned by his brother, John Milley. Other victims of that accident sued Miller’s estate. Murley lived at John’s home in Sarnia.
Supreme Court of Canada Justice Ian Rand, in the 1957 case, defined the term “household” in the following way:
“The ‘household,’ in the broad sense of a family, is a collective group living in a home, acknowledging the authority of a head, the members of which, with few exceptions, are bound by marriage, blood, affinity or other bond, between whom there is an intimacy and by whom there is felt a concern with and an interest in the life of all that gives it a unity.”
Members of a household could include domestic servants and distant relatives living there permanently, Justice Rand found in 1957.
Wawanesa was the auto insurer for Murley Miller’s Studebaker, which was not involved in the 1955 accident. The Wawanesa policy included coverage for “an automobile not owned by the Insured nor by any person or persons of the household of which the Insured is a member, while temporarily used as a substitute” for the Studebaker.
The court ruled that the Vauxhall (owned by the driver’s brother) involved in the accident was covered by Wawanesa, on the grounds that the driver and owner were not part of the same household.
Key considerations were the fact that the driver was not under his brother’s control and did not intend to live at his brother’s place permanently.
“Although a household is not synonymous with a family, the existence of a household is evidenced by the extent to which its members share the intimacy, stability, and common purpose characteristic of a functioning family unit,” Justice Miller of the Court of Appeal for Ontario wrote in 2019 in Ferro v. Weiner.
Members of a household “typically share a residence and resources, and integrate their actions and choices on an ongoing and open-ended basis,” added Miller.