Whether or not a daughter is entitled to auto insurance coverage under her mother’s OPCF 44R family protection endorsement depends on the facts of the case, and not on whether her mother believes her caregiving daughter ‘resides’ at her place, an Ontario court has ruled.
The court sided with Unifund’s application to dismiss the daughter’s claim for coverage under her mother’s auto policy.
“In this case, there are different views expressed by Amber and Kimberley [Chaboyer] as to whether Amber also resided at Forest Creek [her mother’s address],” the court ruled. “However, the court must not simply accept a stated opinion as to residence but must look at all of the facts and circumstances of the case in order to answer this question. Intention or opinion is only part of the consideration.
“It is the view of this court that, based on the facts presented, there is no ambiguity here. While Kimberley [the mother] directly expressed the opinion that Amber [her daughter] had two residences, this is not consistent with the facts of this case and Kimberley’s own statements about the circumstances.
“There is no factual basis to support a conclusion that Amber resided, in part, with her mother at the time of the collision. Therefore, there is no basis upon which to conclude that Amber Chaboyer was a ‘dependent relative’ to be afforded coverage under the OPCF 44R Endorsement of Kimberley’s policy with Unifund.”
Amber Chaboyer was a passenger on a motorcycle driven by Linus Butler when a car hit them in August 2015. The motorcycle was rear-ended by a car driven by Gurvinder Gill, causing Amber Chaboyer to be ejected from the motorcycle. Amber Chaboyer is the daughter of Kimberley Chaboyer.
Unifund issued an insurance policy to Kimberley Chaboyer, which contained an OPCF 44R Family Protection Endorsement. The endorsement is an optional policy that provides certain coverages to family members of the holder of an automobile policy. The key in the policy is whether “a relative of the named insured or of his or her spouse…resides in the same dwelling as the named insured.”
Although she had a different address than her mother, Amber gave evidence that she’d been taking care of her mother, who suffered from a number of health issues, for 14 years. There was no set schedule for when she came over to help or run errands. Sometimes she stayed for up to three days a week, sleeping over at her mother’s place.
Amber confirmed she was not financially dependent on her mother; in fact, she stated, “No, I took care of her.” She would keep clothes at her mother’s place, and confirmed she had a toothbrush at her mother’s place.
When lawyers suggested to Kimberley that her daughter was living at her own home at 280 Morningside Avenue in Toronto at the time of the accident, Kimberley stated: “She had two residences, my house and 280 Morningside.”
But the court looked at a number of other factors to determine the situation, including the separate addresses; the fact that Amber’s mail did not come to her mother’s address; and that Kimberley did not list her daughter on a tenant’s insurance policy she held.
As the court decision noted: “Kimberley repeatedly referred to Amber ‘staying over.’ This does not suggest a residence.”
Feature photo courtesy of iStock.com/pixelfit
