Exclusive Posession by One Spouse (RTA)

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

2 (1) In this Act,

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“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.

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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.

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(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).

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168 (1) The Ontario Rental Housing Tribunal is continued under the name Landlord and Tenant Board in English and Commission de la location immobilière in French.

(2) The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.

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

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).

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).

Azevedo v. Lograsso, 2019 ONSC 4267 (CanLII)

[19] Mario takes the position that the property is a matrimonial home “regardless of ownership” and that he is entitled to exclusive possession under s. 18 and 24 of the FLA.

[20] Section 18(1) of the FLA provides:

18 (1) Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.

[21] Section 24(1)(b) of the FLA authorizes the Court to “direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs”.

[22] Section 18(1) of the FLA deems a property to be a matrimonial home in particular circumstances where one of the spouses has an “interest” in the property. Neither Nancy nor Mario have had any proprietary interest in the property since the sale of the property in 2005. A spouse’s interest in the matrimonial home can only be exercised against the interest of the other spouse: FLA s. 19(2). Since Nancy has no interest in the property, Mario cannot assert an interest under s. 18 of the FLA. Mario cannot assert a FLA claim against Maria and Antonio.

[23] Nor are the Respondents tenants under the Residential Tenancies Act, 2006, S.O. 2006, c.17 (RTA). When the “tenancy” first took effect, the Respondents shared a bathroom and kitchen facility with the owners’ daughter, thus bringing the tenancy into the exemption contained in s. 5(i) of the RTA:

5. This Act does not apply with respect to,

(i) living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located

See: Quin v McCaughey, 2016 ONSC 7921, at paras. 20 and 21 (Div. Ct.).

[24] The Respondents have been given more than reasonable notice to vacate. The Respondents have continued to occupy the property without paying rent or maintenance after having received the Applicants’ notice to vacate over one year ago.