Landlords Children Use Re: Minor Child (N12)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	1833
Page Categories:	[Personal Use Application (LTB)]
Citation:	Landlords Children Use Re: Minor Child (N12), CLNP 1833, <5J>, retrieved on 2024-11-24
Editor:	Sharvey
Last Updated:	2021/12/23

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

72 (1) The Board shall not make an order terminating a tenancy and evicting the tenant in an application under section 69 based on,

(a) a notice of termination given under section 48 on or after the day section 13 of the Rental Fairness Act, 2017 comes into force, unless the landlord has filed with the Board an affidavit sworn by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use for a period of at least one year; or

(b) a notice of termination under section 49, unless the landlord has filed with the Board an affidavit sworn by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use. 2017, c. 13, s. 13.

SWL-85060-16 (Re), 2016 CanLII 44343 (ON LTB)

1. The Landlord served the Tenants with a Notice to Terminate at End of the Term for Landlord’s or Purchaser’s Own Use (N12) specifying that his child would occupy the premises.

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8. The Landlord previously filed application SWL-83633-16 which was heard on January 28, 2016. The N12 submitted by the Landlord in application SWL-83633-16 is the same N12 the Landlord is relying upon in this application. The Landlord’s previous application was dismissed in order SWL-83633-16, issued on January 28, 2016, for the following reasons at paragraphs 2-3:

The Landlord's child did not file an affidavit certifying that he, in good faith, requires the unit for his own personal use. Considering the child is eight years old, his capacity to swear an affidavit would be an issue.

Furthermore, what the Landlord really intended was to provide a home for the child’s mother, who is the Landlord’s ex-partner, where she could live with the child. Subsection 48(1)(d) of the Act allows a landlord to give a notice of termination if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation by “a person who provides care services to” a child of the landlord, if the child will reside in the same building where the rental unit is located. Therefore, it is unclear why the Landlord did not simply give a notice of termination on the caregiver ground and have his ex-partner swear the necessary affidavit.

9. As noted, this application is based on the same N12 as SWL-83633-16. The N12 indicates that only the Landlord’s son intends to move into the rental unit. For the purpose of this application the Landlord filed an affidavit sworn by the caregiver certifying that: she and the Landlord are the parents of a child; she intends to occupy the rental premises; and, she has given notice to terminate her current tenancy.

10. The affidavit does not indicate that she is swearing it on behalf of the Landlord’s son, as his guardian, nor does it indicate that the son will live with her in the premises.

11. Although the Landlord and the mother of his son did testify that the affiant intends to occupy the premises with the son, this intention is not stated in the N12 served by the Landlord. While the Landlord’s true intention appears to be to obtain occupancy for the care giver of his son that was not specified in the N12, which identifies the son as the sole intended occupant of the rental unit.

12. Further, the affidavit does meet the requirements of the legislation. Subsection 72(1) of the Act expressly prohibits the Board from evicting tenants unless an affidavit sworn by the person intended to occupy the premises is filed. No affidavit by the Landlord’s son was filed; nor was an affidavit filed on his behalf specifying the affiant had legal capacity to act for the son.