Talk:Tenant by Spousal Status (RTA)

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Fact Situation

1. On September 6, 2020, a boyfriend and girlfriend decide they are going to live together at the girl's parents' basement. The couple then decided they needed their own place.
2. On October 1, 2020, a female tenant and her boyfriend move into a rental unit together. The female tenant is the only tenant listed on the lease, the boyfriend is only listed as an occupant.
3. On December 12, 2020, the female tenant moves out of the rental unit claiming the relationship with her boyfriend has ended.
4. The female tenant removes all of her possessions from the rental unit.
5. On March 1, 2021, the female tenant then returns back to the rental unit and instructs the landlord to disable the boyfriend/common-law partner's key-fob access to the rental unit.
6. The rent is fully paid with no arrears owing at the time the landlord locked out the boyfriend.
7. The female tenant then calls the Durham Regional Police Services ("DRPS") and attempts to have the boyfriend removed. The DRPS then instructs the landlord to restore access to the rental unit for the boyfriend.
8. On March 3, 2021, the girlfriend again calls the DRPS and requests that the DRPS remove the boyfriend. This time the DRPS complies with the request and removes the boyfriend from the rental unit claiming he is a trespasser under the Trespass to Property Act, R.S.O. 1990.
9. The landlord then removes the boyfriend's access to the rental unit by disabling the boyfriend's key fob.

Core Question: Does the boyfriend have any protections under the RTA that prevent the landlord from removing him from the rental unit?

Legal Questions (Re: Fact Situation)

• Is the boyfriend a spouse as defined by the RTA?
• Is the boyfriend a spouse as defined by the Ontario Human Rights Code ("the code")?
• Is there a conflict between the RTA and the code with respect to the meaning of spouse?
• If there is a conflict between the RTA and the code with respect to the meaning of spouse, which definition prevails?
• If the spousal status has been removed, does the former spouse lose the protection of the RTA?

Legal Analysis(Re: Fact Situation)

See also: Spouse (Re: Meaning of)

Re: Is the boyfriend a spouse as defined by the RTA?

The Residential Tenancies Act, 2006, S.O. 2006, c. 17("RTA") states in section 2:

2 (1) In this Act,

...

“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”)

However, section 3, sub-section (4) of the RTA states:

3 (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.

Furthermore, section 10 (1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 states in part:

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

...

“spouse” means the person to whom a person is married or with whom the person is living in a conjugal relationship outside marriage. (“conjoint”)

In our fact situation, the GF and BF are living together in a conjugal relationship outside marriage, however for a period of less than one year. Without taking into consideration the Ontario Human Rights Code, ("the code") the BF is not a spouse under the RTA. The code on the other hand does not place a temporal requirement on the parties to determine if a spousal status has been obtained.

Spouse under the RTA

O. Reg. 516/06: GENERAL made under the Residential Tenancies Act, 2006

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).

Rights Can't be Removed once Conferred

• It is my position that once the provisions under O. Reg. 516/06: GENERAL have been triggered, the landlord cannot revoke the newly conferred status by having the first tenant move back in.

Cowie v. Bindlish, 2010 ONSC 2628 (CanLII)

[16] It is my respectful view that neither view was a sufficient basis on which the board was entitled to decline jurisdiction. Both board members erred in law, albeit differently, in their respective interpretation of section 5 (i) of the Act and we must now interfere. The section explicitly creates an exemption from the general application of the Act only if the person in the category of the respondent “lives in the building in which the living accommodation is located”. That means that the respondent was required to live in the building at the time when she rented the room to the appellant in order for the exemption to apply. It was not sufficient that she merely intended to move in at some subsequent time. Nor was it sufficient that she actually did move in at a subsequent time.

[17] Any interpretation of section 5 (i) of the Act that would permit the respondent to unilaterally cause the board to be deprived of its jurisdiction to hear the appellant’s application by forming an intention in her own mind without communicating it to the appellant or by moving into the house at a later time would be contrary to the language of the section and the intention of the Legislature and would be grossly unfair. It would also effectively result in an unwarranted revision of the tenancy agreement that the parties had made.

SWL-17145-18 (Re), 2018 CanLII 88667 (ON LTB)

20. In this case, when the Landlord moved out, I find he made a unilateral decision that caused the Act to apply after he vacated. I do not view this to be an “unwarranted” revision of the tenancy that is unfair to the Tenant; rather it is a reasonable revision of the tenancy agreement reflecting the reality of the Tenant’s changed living arrangements. As a result of the Landlord’s decision to vacate the Tenant, gained the legal protection offered by the Act.

21. The Landlord and his spouse, expecting their first baby, purchased a new primary residence and permanently vacated the rental unit in order to permanently move into their family home. This action caused the exemption set out in subsection 5(i) to cease to apply as the Tenant was no longer required to share a kitchen or bathroom with the owner or a family member of the owner. Once the exemption in subsection 5(i) of the Act ceased to apply, the tenancy became subject to the Act in accordance with subsection 3(1) of the Act.

22. I must determine exactly when the Act began to apply to this tenancy. The Landlord testified that he moved out of the rental unit in January 2018, while the Tenant insisted he moved out in December 2017. With no other supporting evidence, I find the Landlord vacated on or before December 31, 2017, as the Landlord testified he turned the gas to the stove off sometime before January 1, 2018.

TST-78142-16 (Re), 2016 CanLII 88280 (ON LTB)

15. Section 5(i) of the Act states that the Act does not apply if the tenant is required to share a kitchen or bathroom with the owner.

16. The Landlord testified that he moved into one of the units in the residential complex on September 14, 2016, after the Tenant’s tenancy began. The Landlord’s unit has a bathroom but the Landlord shares a kitchen with three other units. The Landlord testified that he told the Tenant that he was moving into the unit 7 – 10 days prior to moving in but he did not discuss with the Tenant how this would impact the terms of the Tenant’s tenancy.

17. There was no evidence before me that the Landlord moved into the residential complex with the bad faith intention of causing the rental unit to be exempt from the application of the Act, under section 5(i). In fact, it was the Tenant’s legal representative who raised the issue of the application of the Act at the hearing.

18. I nevertheless find that the Act applies to the rental unit for the purpose of this hearing, despite section 5(i) of the Act. The Landlord cannot unilaterally change a fundamental aspect of the Tenant’s tenancy (i.e. whether the Act applies to it) by moving into the residential complex after the tenancy has already begun. (See Cowie v. Bindlish, 2010 ONSC 2628 (CanLII), paras. 16-17). Accordingly, I am satisfied on a balance of probabilities that the Act applied to the rental unit during the Tenant’s tenancy, including at the time of the lock out.