Children of Cottage Owner are not covered under cottage insurance if owner is not full time resident - What is a 'household' - Ferro v. Weiner 2019 ONCA 55

June 10, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Ferro v. Weiner 2019 ONCA 55

Date of Decision: January 28, 2019
Heard Before: B.W. Miller J.A., C.W. Hourigan J.A., G.T. Trotter J.A.

DEFINITION OF A HOUSEHOLD: homeowners insurance; who is a home owner; to whom is coverage extended; definition of ‘living in the same household’;

Mrs. Enid Farro was the sole resident of a cottage in Ontario before she moved to a nursing home. She never returned to the cottage as a full time resident but maintained the home. Her adult children and families continued to use it as a cottage, and she would occasionally join them.  She was the sole owner and the sole named insured under an Intact Homeowners – Broad Form policy.

The policy covered the insured and all of the insured’s relatives ‘while living in the same household, covering liability from unintentional bodily injury or property damage arising from an insured’s personal actions anywhere in the world. It covers the insured’s primary residence and the insured’s seasonal and other residences that are listed on the Coverage Summary of the policy.

In 2010 Enid’s adult son Scott and wife Sandy hosted a high school graduation party in May 2010 at which Mr. Ferro drowned. Scott and Sandy were present at the party. The Ferro family sue the Weiners. Following a motion for summary judgment the motion judge held Intact had a duty to indemnify the hosts. The existing homeowner policy provided for coverage for the insured’s relatives while living in the same household as the named insured (Enid).  Although Enid had  been in a nursing home since 2009 the motion judge held that the hosts were living in the same household and were therefore indemnified. The decision reached was that the hosts Scott and Sandy were more than visitors and was based on the following:

1. Enid Weiner’s son cared for the home as an owner would
2. Enid stayed at the cottage with the hosts from time to time
3. The hosts continued to use the cottage even once Enid was residing in a nursing home.

On appeal the Court clarified that the appropriate standard of review was correctness and the interpretation of the insurance policy raised a question of law and it had ‘precedential value for other insurance policies’. The Court determined the motion judge answered the wrong question – was the son living in the household? The evidence about the property was not relevant to the question. The Court said that a household is like a community and is characterized by ‘intimacy, stability, and a common purpose characteristic of a functioning family unit”. Household status can also be defined by the person’s intention – you can be a member of a household despite being absent for long periods of time (people who travel for work, students at university, estranged spouses investigating reconciliation). Few examples exist of people with more than one household and include children of divorced parents.

The Court stated that:

Applying the established common law understanding of “household,” the facts found by the motion judge were incapable of supporting a finding that Enid and Scott, Sandy, and Regan had a common life with the intimacy, unity, and permanence required to constitute a household. 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. In the words of Rand J. in Bell, at p. 585, he maintained a “separate identity of life” from his mother Enid. Unlike in Canadian Universities’, Scott clearly did not see Enid’s house as “home base”: para. 25. There was no compelling evidence that either Scott or Enid organized their lives in conjunction with each other to the degree described in Bell and subsequent cases.

So while it may be possible to live in more than one household there are few examples of this. Insufficient evidence was presented in this case as to the record of a shared life together.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.