



COURT OF APPEAL FOR ONTARIO

CITATION: Ferro v. Weiner, 2019 ONCA 55

DATE: 20190128

DOCKET: C65028

Hourigan, Miller and Trotter JJ.A.

BETWEEN

Jennifer Ferro, Andrea Ferro and Carmella Ferro

Plaintiffs

and

Paul Weiner, the personal
    representative of Enid Weiner, deceased
,
Scott
    Weiner
,
Sandy Weiner
and
Regan Weiner

Defendants (Appellant/Respondents)

Brian J. Smith, for the appellant Paul Weiner, the
    personal representative of Enid Weiner, deceased

William G. Woodward, for the respondents Scott Weiner,
    Sandy Weiner and Regan Weiner

Heard: October 4, 2018

On appeal from the judgment of Justice Pamela L. Hebner
    of the Superior Court of Justice, dated April 12, 2018, with reasons reported
    at 2018 ONSC 633.

B.W. Miller J.A.:

Overview

[1]

A homeowners policy of insurance provides coverage to the homeowners relatives
    while living in the same household as the homeowner. The issue on this appeal
    is whether the respondents were living in the same household as the insured homeowner
    at the time of a fatal accident.

Background

[2]

The late Enid Weiner owned a house on Lake Eugenia. The house was constructed
    in 1969 as a vacation property for her, her husband, and their children. From the
    late 1980s or early 1990s, it was Enids sole residence, before she moved to a
    nursing home in 2008 or 2009. Although she never resumed full-time residence at
    the house, her three adult children and their families all continued to use it
    as a cottage. She would occasionally stay there with them. At all relevant
    times she was the sole owner. Enid was also the sole named insured under a
    Homeowners  Broad Form policy with Intact Insurance Company (the Intact
    Policy).

[3]

The Intact Policy provides coverage not only for the named insured, but also
    for all the insureds relatives while living in the same household as the named
    insured. It covers liability from unintentional bodily injury or property
    damage arising from an insureds personal actions anywhere in the world. It
    covers not only the insureds primary residence, but also the insureds
    seasonal and other residences, provided that these premises are listed on the
    Coverage Summary page.

[4]

The respondents, Enids adult son Scott, his wife Sandy, and their daughter
    Regan, are defendants in an action brought by the parents and sister of a young
    man who drowned at the house during a high school graduation party in May 2010.
    Scott and Regan were both present at the house during the party. The appellant,
    Enids estate, is also a defendant. The plaintiffs claim was settled by
    Scotts insurer, TD Insurance Company. TD Insurance brought a summary judgment
    motion seeking a declaration that Intact Insurance is bound to defend and
    indemnify all defendants against the claims advanced by the plaintiffs. The
    motion was granted, and the motion judge ordered a declaration that Scott,
    Sandy, and Regan were insured under the Intact Policy. The motion judge also ordered
    that Intact Insurance indemnify TD Insurance $62,500, 50% of the value of the
    settlement with the plaintiffs.

[5]

Intact Insurance appeals. The sole issue is whether Scott, Sandy, and
    Regan are insureds under the Intact Policy and entitled to coverage.

The decision below and the argument on appeal

[6]

Central to the motion judges analysis is the finding that Scott and his
    family were not visitors to the house. She noted that he attended at the house
    when he wished and cared for it as an owner would and (later) took an ownership
    interest in it. The motion judge adopted reasoning from
Canadian
    Universities Reciprocal Insurance v. Halwell Mutual Insurance Co.

(2002),
    61 O.R. (3d) 113 (C.A.), that household can have a flexible meaning, and that
    the meaning must be gleaned from interpreting its use in the policy of
    insurance using the rules of interpretation of contracts and of insurance
    policies, including that any ambiguity is to be resolved in favour of the
    insured. She reasoned that in the context of this policy and this property 
    Scott and his family are included in Enids household.

[7]

The appellant argues that the motion judge erred in four respects.

[8]

First, the appellant argues that the motion judge embarked on the wrong
    analysis, posing the salient question as whether Scott was either a visitor to
    the house or whether it was his household. She concluded he was not a visitor,
    as he later took an ownership interest in the house, came and went as he
    pleased, and cared for it as an owner would. The appellant argues that the
    focus of analysis, however, should not be on Scotts attitude towards, and use
    of, the house, but rather his relationship with Enid. That is, whether Scott
    was a member of the same household as Enid, the policy holder. The appellant
    argues that the motion judge also failed to pose this question in relation to
    Sandy and Regan.

[9]

Second, the appellant argues that the motion judge erred in her
    discussion of the meaning of dwelling in the Intact Policy. She concluded
    that the house is identified in the Intact Policy as a single-family dwelling,
    and that the single-family is Enids family, which includes Scott, Sandy, and
    Regan. Again, the appellant argues that this misdirects the analysis from the
    relationship between Enid and Scott, Sandy, and Regan, to whether the cottage
    was a recreational or primary use residence  an irrelevant consideration.

[10]

Third,
    the appellant argues that the motion judge misconstrued
Canadian
    Universities
 as authorizing a new and enlarged conception of household,
    beyond what had been previously recognized in Canadian jurisprudence. Again,
    the appellant argues that the motion judge erred by focussing on the respondents
    use of the house, rather than on whether the lives of Enid and Scott, Sandy,
    and Regan had the requisite degree of integration to form a single household.

[11]

Fourth,
    the appellant argues that the conclusion reached by the motion judge was
    commercially unreasonable, in that it interpreted the Intact Policy in a way
    that all family members of Enids extended family, by virtue of their use of
    the cottage, would obtain personal liability insurance for their actions
    anywhere in the world.

Analysis

(1)

Standard of Review

[12]

The
    standard of review for the motion judges interpretation of the phrase living
    in the same household is correctness. I accept that the application of the
    contractual provision to the facts of the case attracts deference. However, the
    motion judges interpretation of the contractual phrase living in the same household
    raises an extricable question of law that attracts correctness review. Additionally,
    the household clause forms part of a standard form homeowners insurance policy,
    and its interpretation thus has precedential value for other insurance
    policies. Furthermore, the respondents have not pointed to any meaningful
    factual matrix specific to the parties. Accordingly, the correctness standard
    of review applies: see
Ledcor Construction Ltd. v. Northbridge Indemnity
    Insurance Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 24;
MacDonald
    v. Chicago Title Insurance Company of Canada
, 2015 ONCA 842, 127 O.R. (3d)
    663, at paras. 40-41, leave to appeal refused, [2016] S.C.C.A. No. 39.

(2)

The meaning of household

[13]

I
    agree with the appellant that the motion judge erred in law by answering the
    wrong question about the meaning of the term household. The inquiry into
    Scotts relationship to the house was not the ultimate question. That inquiry
    was only relevant to the extent that it shed light on the further question of
    Scotts relationship with Enid. Was he (and were Sandy and Regan) relatives
    living in the same household as Enid?

[14]

The
    words living in from the Intact Policy refer to the question of residence:
Canadian
    Universities
, at para. 23. Scotts use of the house was relevant to the
    question of whether the house was Scotts residence. If the only question was
    whether the house was a seasonal residence for Scott, there might be no basis
    to interfere with the motion judges finding that Scott was more than a visitor.

[15]

However,
    the court must also give meaning to the contractual language of the same
    household. As the court held in
Wade v. Canadian Northern Shield Insurance
    Co
.
(1986), 18 C.C.L.I. 173 (B.C.S.C.), one can be a resident in a
    housewithout being a resident in or of a household: p. 181. In that case, the
    court found that an adult son who had his own apartment but was living in his
    parents apartment while they were vacationing was not a member of his parents
    household because he had not rejoined the family unit: pp. 181-183. Likewise,
    in
Aviva Canada Inc. v. Yaehne
, 2005 SKQB 553, 34 C.C.L.I. (4th) 172,
    the court found that a son who rented the basement of his mothers house was
    residing at his mothers house but was not a member of his mothers household:
    paras. 18, 30. Accordingly, it does not follow from the motion judges finding
    that Scott was more than a visitor in relation to the house that he was therefore
    a member of Enids household.

[16]

Although
    household, in ordinary speech, can refer either to a residence or a type of
    community, in the context of insurance law it is the latter. The definition of
    a household has a long history and stable meaning. The leading Canadian
    exposition was given by Rand J. in
The Wawanesa Mutual Insurance Company v.
    Bell
, [1957] S.C.R. 581, at p. 584:

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. It may, for example, include such persons as domestic
    servants, and distant relatives permanently residing within it. To some degree
    they are all admitted and submit to the collective body, its unity and its
    conditions, particularly that of the general discipline of the family head.
    They do not share fully in the more restricted family intimacy or interest or
    concern, but they participate to a substantial degree in the general life of
    the household and form part of it.

[17]

A
    household is thus a type of community, most readily understood by analogy to a
    family unit. 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. For example, its members typically share a residence and resources, and integrate
    their actions and choices on an on-going and open-ended basis, motivated by an
    interest in the life of all that gives it a unity:
Bell
, at p. 584;
McWhirter
    et al. v. State Farm Mutual Automobile Insurance Co.
(1959), 21 D.L.R.
    (2d) 743 (Ont. S.C.), at pp. 748-749. More recently, this court offered a
    similar formulation in
Tannahill v. Lanark Mutual Insurance Co.
, 2011
    ONCA 123 (
Tannahill
ONCA), affg 2010 ONSC 3623, 86 C.C.L.I. (4th)
    69 (
Tannahill
ONSC): the term household connotes a family like
    group of people living together with an element of intimacy or community in the
    relationship:
Tannahill

ONCA, at

para. 6. It should be
    noted that although Rand J. understood a household under the governance of a
    singular person to be the paradigmatic form of the household, we need not. What
    is essential is not how the household is structured, but the degree to which
    the choices and actions of all members of the household are motivated by an interest
    in the life of all that gives it a unity.

[18]

A
    household is constituted not only by its members patterns of living with each
    other, but also by their settled intentions. Accordingly, courts have found
    that a person can maintain membership in a household despite lengthy absences
    from a common residence, provided there is continued self-identification as a
    member of the household, with a settled intention to return to the common
    residence. For example, university students do not necessarily cease to be
    members of their parents household when they move away for the academic year,
    provided they continue to view the parental home as home base and have an
    intention to return:
Canadian Universities
. Similarly, a parent who
    is absent from the family home for extended periods because of the requirements
    of work does not therefore cease to be a member of the household during those
    absences as long as the parent intends to return: see
Campbell v. Royal
    Insurance Co. of Canada
(1991), 115 N.B.R. (2d) 140 (C.A.), at para. 8. Courts
    have even held that where an estranged spouse has the intention to return and
    reconcile, the household can survive the separation:
Boasley v. British
    America Insurance Co.
(1976), 15 O.R. (2d) 120 (Co. Ct.), affd (1977), 15
    O.R. (2d) 120n (C.A.).

[19]

But
    the demands of intimacy, unity, and permanence are not slight. The mere fact of
    co-residence is not enough to constitute membership in a household. In
Bell
,
    the insured had been living with his brother indefinitely and was clearly more
    than a mere visitor, but the Supreme Court still held that he had a separate
    identity of life and thus was not part of his brothers household: p. 585. In
McWhirter
,
    two men rooming together, but leading separate lives were found not to
    constitute a household. In
Tannahill
, a daughter visiting her parents
    for two-and-a-half weeks was held not to be a member of the household. As the
    application judge stated, (l)iving in a household is not the same as staying
    with people in their home during a visit, even if those people are your parents:
Tannahill
ONSC, at para. 49.

[20]

Because
    of the demands of intimacy, unity, and permanence required to constitute a
    household, it would be difficult (though conceptually possible) for a person to
    be a member of more than one household at a time. The principal exception
    recognized by the law to date relates to minor children, particularly children
    of divorced or separated parents who live part time with each parent, and who
    are understood to be members of both parental households: see

Arsenault
    v. Fitzgerald
(1985), 66 N.B.R. (2d) 232 (Q.B.);
Harris
    (Litigation Guardian of) v. Pilot Insurance Co.
(1997), 34 O.R. (3d) 633
    (C.A.), at pp. 636-638;
Canadian Universities

, at para. 22.

(3)

The Respondents Argument

[21]

The
    respondents submit that the term household should be interpreted broadly because
    it is contained in a coverage clause of the Intact Policy. The respondents rely
    on the principle that coverage clauses in insurance contracts should be
    interpreted broadly in favour of the insured, while exclusion clauses should be
    interpreted narrowly:
Canadian Universities
, at paras. 21, 30.
    According to the respondents, the court interpreted the meaning of household
    narrowly in
Tannahill
and
Bell
because those cases involved
    exclusion clauses, while the court interpreted household broadly in
Canadian
    Universities

because that case involved a coverage clause.

[22]

I
    do not agree. Whether a case involves a coverage clause or exclusion clause may
    influence the result in borderline cases, but this is not a borderline case. Where
    the facts are inconsistent with a person being a member of a household in
    accordance with settled jurisprudence, the fact that the case involves a
    coverage clause provides no assistance. See, for example,

Campbell
;
Wade
;
Eichmanis v. Wawanesa Mutual Insurance Company
, 2007
    ONCA 92, 84 O.R. (3d) 668, at para. 20, leave to appeal refused, [2007]
    S.C.C.A. No. 178.

[23]

The
    respondents also argue that
Wood v. Krebs
, 2004 CarswellOnt 3590
    (C.A.) (
Wood
ONCA), affg [2004] O.T.C. 169 (S.C.) (
Wood
ONSC), establishes the proposition that an adult can belong to more than one
    household at a time. The facts of that case, in brief, are that an adult child was
    found to belong to his own household ordinarily, but alternately belonged to
    his parents household when he stayed at their cottage, with or without them
    being present. When he caused a fire that destroyed a neighbouring cottage, his
    actions were covered by his parents home insurance.

[24]

The
    respondents argue that on the authority of
Wood v. Krebs
, Scott, Sandy,
    and Regan should be understood as belonging to their own household in the city,
    but coming within a second household  Enids  while at Enids house. That
    household, according to the argument, is defined exclusively by the relations
    of the parties to each other while they are at the house. If their lives have
    the necessary integration while at the house, and their use of the house separately
    or together forms a regular pattern, then they constitute a household anchored
    in their joint use of the house. They argue that the criteria for determining the
    existence of a household should be altered for vacation properties, that the
    integration requirement should be relaxed to the degree of integration needed
    for families to share a vacation property, and that permanence should be
    understood as an on-going pattern of occasional use for recreational purposes.
    The analysis, they say, must thus be contextual, and the context is the nature
    of the use of a multi-family vacation property.

[25]

I
    do not agree. This is a novel reading of living in the same household, not in
    keeping with the established juridical meaning of household, and could not
    have been in the reasonable contemplation of the parties. A persons membership
    in a household is not established by a restricted inquiry limited to interactions
    surrounding the use and management of one particular residence. As the above
    review of the case law demonstrates, membership in a household is assessed
    holistically, based on the totality of the parties relations and intentions
    towards each other.

[26]

Wood

does not stand for the general proposition that an adult child can
    ordinarily be a member of both his own household and the household of a parent
    in the context of the use of a family cottage. This would be a significant
    departure from existing jurisprudence. The respondents have not been able to marshal
    any other authority for this proposition, from any common law jurisdiction. It
    is important to note that
Wood

was given as an endorsement,
    which is not the vehicle this court uses to depart from established doctrine. It
    was also decided on a deferential standard of review that is not applicable
    here (see paragraph 12 above). Nor did this court make any legal pronouncement in
Wood
on the degree of intimacy, unity, and permanence required to
    constitute a household.
Wood
does not establish an exception to the
    definition of household established from
Bell
through to
Tannahill
.

(4)

Conclusion

[27]

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 Scotts 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 Enids 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.

[28]

It
    may be possible, conceptually, for a person to belong to more than one
    household. But the categories recognized to date are few, relating only to
    minor children. In any event, there is insufficient evidence on this record of a
    shared life together.

DISPOSITION

[29]

The
    appeal is allowed, the order for summary judgment in favour of the respondent
    is vacated, and summary judgment is ordered in favour of the appellants. Costs
    of the appeal are awarded to the appellant in the amount of $5,000 inclusive of
    disbursements and HST.

Released:

CWH                                               B.W.
    Miller J.A.

JAN 28 2019                                    I agree
    C.W. Hourigan J.A.

I
    agree G.T. Trotter J.A.


