Tenant by Spousal Status (RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-25
CLNP Page ID:	1173
Page Categories:	Contract Law, Leases, & Sub-Letting (LTB)
Citation:	Tenant by Spousal Status (RTA), CLNP 1173, <https://rvt.link/bc>, retrieved on 2024-11-25
Editor:	Sharvey
Last Updated:	2024/09/08

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See Also

• Consortium (Meaning of)

Residential Tenancies Act, 2006, S.O. 2006, c. 17

2 (1) In this Act,

...

“tenant” includes a person who pays rent in return for the right to occupy a rental unit and includes the tenant’s heirs, assigns and personal representatives, but “tenant” does not include a person who has the right to occupy a rental unit by virtue of being,

(a) a co-owner of the residential complex in which the rental unit is located, or

(b) a shareholder of a corporation that owns the residential complex; (“locataire”)

(2) In the definition of “spouse”, a reference to marriage includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid.

...

“spouse” means a person,

(a) to whom the person is married, or

(b) with whom the person is living in a conjugal relationship outside marriage, if the two persons,

(i) have cohabited for at least one year,

(ii) are together the parents of a child, or

(iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act; (“conjoint”)

...

3 (1) This Act, except Part V.1, applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary. 2013, c. 3, s. 22 (1).

...

(4) If a provision of this Act conflicts with a provision of another Act, other than the Human Rights Code, the provision of this Act applies. 2006, c. 17, s. 3 (4).

...

91 (1) If a tenant of a rental unit dies and there are no other tenants of the rental unit, the tenancy shall be deemed to be terminated 30 days after the death of the tenant. 2006, c. 17, s. 91 (1).

...

100 (1) If a tenant transfers the occupancy of a rental unit to a person in a manner other than by an assignment authorized under section 95 or a subletting authorized under section 97, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant and the person to whom occupancy of the rental unit was transferred. 2006, c. 17, s. 100 (1).

(2) An application under subsection (1) must be made no later than 60 days after the landlord discovers the unauthorized occupancy. 2006, c. 17, s. 100 (2).

(3) A landlord who makes an application under subsection (1) may also apply to the Board for an order for the payment of compensation by the unauthorized occupant for the use and occupation of the rental unit, if the unauthorized occupant is in possession of the rental unit at the time the application is made. 2006, c. 17, s. 100 (3).

(4) Subsection 87 (5) applies, with necessary modifications, to an application under subsection (3). 2006, c. 17, s. 100 (4).

Family Law Act, R.S.O. 1990, c. F.3

1 (1) In this Act,

“spouse” means either of two persons who,

(a) are married to each other, or

(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. (“conjoint”)

19 (1) Both spouses have an equal right to possession of a matrimonial home. R.S.O. 1990, c. F.3, s. 19 (1).

(2) When only one of the spouses has an interest in a matrimonial home, the other spouse’s right of possession,

(a) is personal as against the first spouse; and

(b) ends when they cease to be spouses, unless a separation agreement or court order provides otherwise. R.S.O. 1990, c. F.3, s. 19 (2).

Human Rights Code, R.S.O. 1990, c. H.19

10 (1) In Part I and in this Part,

...

“marital status” means the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage; (“état matrimonial”)

O. Reg. 516/06: GENERAL

3. (2) If a tenant vacates a rental unit without giving a notice of termination under the Act and without entering into an agreement to terminate the tenancy, and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in subsection 2 (1) of the Act. O. Reg. 516/06, s. 3 (2).

(3) Subsection (2) does not apply if any one or more of the following criteria are satisfied:

1. The rental unit is in a building containing not more than three residential units and the landlord resides in the building.

2. The spouse vacates the rental unit no later than 60 days after the tenant vacated the rental unit.

3. The tenant who vacated the rental unit was not in arrears of rent and the spouse fails to advise the landlord, before an order is issued under section 100 of the Act, that he or she intends to remain in the rental unit.

4. The tenant who vacated the rental unit was in arrears of rent, the landlord gives the spouse a notice in a form approved by the Board within 45 days after the date the tenant vacated the unit, and the spouse fails, within 15 days after receiving the notice,

i. to advise the landlord that he or she intends to remain in the rental unit, or

ii. to agree in writing with the landlord to pay the arrears of rent.

5. The tenant who vacated the rental unit was in arrears of rent, the landlord does not give the spouse a notice referred to in paragraph 4 within 45 days after the date the tenant vacated the unit, and the spouse fails, before an order is issued under section 100 of the Act,

i. to advise the landlord that he or she intends to remain in the rental unit, or

ii. to agree in writing with the landlord to pay the arrears of rent. O. Reg. 516/06, s. 3 (3).

(4) Subsections (1) and (2) do not apply to,

(a) a rental unit described in section 7 of the Act;

(b) a rental unit that is in a care home to which Part IX of the Act applies; or

(c) a rental unit to which section 6 of this Regulation applies. O. Reg. 516/06, s. 3 (4).

Angela Foot v. Kenny Dias; Carlos Dias; Jason Stroud ONLTB TST-30893-12

1. In summary, I find the Tenant has no standing to bring this application as she is not a tenant of the rental unit. The Tenant agreed in a separation agreement with the Other Tenant that she is not a tenant, a position consistent with that of the Landlords. Disputes involving separation agreements are outside of the Landlord and Tenant Board's jurisdiction.

5. Subsection 9(1) of the Act provides only a tenant or a landlord can bring an application to determine whether the Act applies, and the italicized excerpt from the separation agreement above contains a specific acknowledgment that the Tenant is not, in fact, a tenant of the rental unit. The question of how the Tenant can later become a tenant of the rental unit without the consent of the Landlords is not one for me to consider here.

6. The separation agreement also matches what I understand would have been the Landlords' position regarding paragraph 6 of the application, which alleges the Tenant and the Other Tenant have a verbal tenancy with the Landlords. In any event, Family Court has exclusive jurisdiction over the separation agreement pursuant to subsection 21.8(1) of the Courts of Justice Act if it is the case the Tenant now intends to resile from it. Extrinsic evidence as to who might have paid rent when is irrelevant in view of the explicit acknowledgment of the parties in the separation agreement as and Landlords' position.

7. The Tenant lacks standing to bring the application. The application must therefore be dismissed.

TNL-73624-15 (Re), 2015 CanLII 79133 (ON LTB)

6. DJ has not abandoned the rental unit. Although DJ does not live there any more, DJ’s spouse AJ and DJ’s children are still living in the rental unit. The rental unit is not abandoned as long as occupants who were living in the rental unit while the Tenant was still in possession are still living in the rental unit.

7. DJ is no longer in possession of the rental unit. He vacated the rental unit no later than August 1, 2015, by which date he had removed all of his personal belongings from the rental unit.

8. It is uncontested that on August 7, 2015, the Landlord discovered that MP has been living in the rental unit. It is also uncontested that MP was in possession of the rental unit when the application was filed and he is still in possession of the rental unit.

15. Subsection 3(2) of Ontario Regulation 516/06 (the ‘O'Reg’) provides that if a tenant vacates a rental unit without giving a notice of termination and without entering into an agreement to terminate the tenancy, and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in subsection 2(1) of the Act.

16. However, paragraph 5 of subs.3(3) of the O'Reg states that subs 3(2) does not apply if certain steps are not taken by the landlord and the spouse to regularize the spouse’s tenancy in the rental unit. These steps include the landlord giving the spouse notice that he or she has 15 days to tell the Landlord that he or she intends to remain in the rental unit or agree in writing to pay the arrears of rent.

17. In this case, the parties did not take the steps required to regularize the spouse’s tenancy in the rental unit. In particular, the Landlord did not give the spouse notice that she has 15 days to tell the Landlord that she intends to remain in the rental unit or agree in writing to pay the arrears of rent.

18. Therefore, AJ is not a “tenant” because subs 3(2) of the O'Reg does not apply.

CEL-76187-18 (Re), 2018 CanLII 88608 (ON LTB)

8. It does not matter if the Occupant received the N14 because that form could not be used in the circumstances. As set out in the N14 instructions, this form can only be used if a Tenant moved out of the unit without an agreement to terminate the tenancy and the spouse of the Tenant is still residing in the rental unit. In this case there was an Agreement to End the Tenancy (N11) signed by the Landlord and Tenant. As a result of the N11, the Occupant cannot elect to be deemed a “Tenant” in accordance with section 3(2) of O.Reg. 516/06 by completing the N14.

9. The Occupant testified that her husband was made to leave the rental unit because he became abusive. She subsequently received correspondence from the Landlord informing her that she was not a named Tenant on the lease agreement.

10. The Occupant stated that she informed the Landlord that she would like to stay in the unit but did not understand why the Landlord asked her to pay the first and last month’s rent deposit. When the Landlord insisted, the Tenant agreed to make the payments but requested some time to save up for it.

TSL-85517-17-RV (Re), 2017 CanLII 71334 (ON LTB)

3. KK says he was the long term common law spouse of the Tenant, and as such automatically became a tenant of the unit upon GM’s passing. It was a closeted relationship, because that was their preference. KK never disclosed the nature of the relationship to the Landlord, or in the discussions with the Landlord’s legal representative, or when he sought advice concerning the Landlord’s application.

4. Some weeks after the consent order under review had been issued, KK was speaking with a friend who was aware of his relationship with the Tenant and told KK that the relationship should give him certain rights in the tenancy.

5. Section 3 of the Ontario Regulation 516(06) includes the following definition of “tenant”:

3. (1) If a tenant of a rental unit dies and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in subsection 2 (1) of the Act unless the spouse vacates the unit within the 30-day period described in subsection 91 (1) of the Act. O. Reg. 516/06, s. 3 (1).

10. In these circumstances, I cannot find that KK’s failure to raise the argument at the original hearing that he should be considered a tenant of the rental unit by virtue of his relationship with GM instead of an unauthorized occupant gives rise to any of the recognized grounds to interfere with the consent order he entered into with the Landlord.. The request to review is therefore dismissed.

EAL-58285-16 (Re), 2016 CanLII 88072 (ON LTB)

14. The Landlord’s Legal Representative also argued that (NC) cannot meet the definition of a tenant by virtue of having been the spouse of (DM) because subsections (3)(1) and (3)(2) of the regulations O. Reg.516/06 do not apply to social housing pursuant to subsection 3(4)(a) of the regulations O. Reg.516/06.

23. In reference to the case of Jemiola v. Firchuk (2005) O.J. NO.6085, the Court states at paragraph 9 of the decision “The definitions of “tenant” and ”tenancy agreement “ are broad and inclusive and should be broadly and liberally construed. The Court of Appeal has affirmed that the Act is remedial legislation with a “tenant protection focus“ and that an expansive, liberal approach should govern its interpretation “. The Court in this decision also decided that the appellant was not a tenant.

24. The purpose of the Act as stated in section 1 of the Act, is to provide protection to residential tenants from unlawful rent increases and unlawful evictions. The Act does not provide the same protection to occupants.

Jemiola v. Firchuk (2005) O.J. NO.6085 (Divisional Court)

13 We are satisfied that there was evidence before the Tribunal that entitled it to conclude that an implied tenancy agreement did not arise between the appellant and the landlords. The Member was not prepared to characterize the single payment of rent and the July letter as amounting to an agreement to create a tenancy. The landlord and his agents acknowledged that Mr. Jemiola was living in the unit, but the legislation does not prohibit tenants from having room-mates, family and friends living with them. The Member found, correctly in our view, that this does not necessarily confer on them the status of tenant.

Cassan v. Giroux, 2024 ONSC 4785 (CanLII)

[12] Under s. 57(1) of the SLRA, a “dependent” includes “the spouse of the deceased” “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.”

[13] Under s. 57(1) of the SLRA, “spouse” under the SLRA has the same meaning as in s. 2 of the Family Law Act, R.S.O. 1990, c. F. 3.

[14] Under s. 29 of the FLA, “spouse” includes either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years.

[15] Section 57 of the SLRA defines “cohabit” as “to live together in a conjugal relationship, whether within or outside marriage.”

[16] The parties agree that to determine whether the applicant and Mr. Villeneuve cohabited, the court must look to the factors identified in Molodowich v. Pettinen, (1980), 1980 CanLII 1537 (ON SC), which were endorsed by the Supreme Court of Canada in M. v. H.,1999 CanLII 686, [1999] 2 SCR 3. These factors and some associated questions for the court’s consideration were set out in para. 16 of Molodowich:

I propose to consolidate the statements just quoted by considering the facts and circumstances of this case with the guidance of a series of questions listed under the seven descriptive components involved, to varying degrees and combinations, in the complex group of human inter-relationships broadly described by the words “cohabitation” and “consortium”:

(1) SHELTER:

(a) Did the parties live under the same roof?

(b) What were the sleeping arrangements?

(c) Did anyone else occupy or share the available accommodation?

(2) SEXUAL AND PERSONAL BEHAVIOUR:

(a) Did the parties have sexual relations? If not, why not?

(b) Did they maintain an attitude of fidelity to each other?

(c) What were their feelings toward each other?

(d) Did they communicate on a personal level?

(e) Did they eat their meals together?

(f) What, if anything, did they do to assist each other with problems or during illness?

(g) Did they buy gifts for each other on special occasions?

(3) SERVICES:

What was the conduct and habit of the parties in relation to:

(a) Preparation of meals,

(b) Washing and mending clothes,

(c) Shopping,

(d) Household maintenance,

(e) Any other domestic services?

(4) SOCIAL:

(a) Did they participate together or separately in neighbourhood and community activities?

(b) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

(5) SOCIETAL:

(a) What was the attitude and conduct of the community towards each of them and as a couple?

(6) SUPPORT (ECONOMIC):

(a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?

(b) What were the arrangements concerning the acquisition and ownership of property?

(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

(7) CHILDREN:

(a) What was the attitude and conduct of the parties concerning children?

[17] The extent to which the different elements of the marriage relationship will be taken into account must vary with the circumstances of each case. (Molodowich, at para. 16.)

M. v. H., 1999 CanLII 686 (SCC), [1999] 2 SCR 3

[59] Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same‑sex couples, there is agreement that same‑sex couples share many other “conjugal” characteristics. In order to come within the definition, neither opposite‑sex couples nor same‑sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.

Molodowich v. Penttinen, 1980 CanLII 1537 (ON SC)

[15] As to the meaning of “consortium”, see Appeal Justice Walter F. Schroeder in Kungl v. Schiefer, 1960 CanLII 22 (ON CA), [1961] O.R. 1, 25 D.L.R. (2d) 344, [1960] O.J. No. 569, 1960 Cars­well­Ont 72 (Ont. C.A.), at page 7 [O.R.]:

The term consortium is not susceptible of precise or complete definition but broadly speaking, companionship, love, affection, comfort, mutual services, sexual intercourse — all belonging to the marriage state — taken together make up what we refer to as consortium.