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

1 (1) In this Act,

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“cohabit” means to live together in a conjugal relationship, whether within or outside marriage; (“cohabiter”)

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“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.

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4 (1) In this Part,

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“property” means any interest, present or future, vested or contingent, in real or personal property and includes,

(a) property over which a spouse has, alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself,

(b) property disposed of by a spouse but over which the spouse has, alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of the property, and

(c) in the case of a spouse’s rights under a pension plan, the imputed value, for family law purposes, of the spouse’s interest in the plan, as determined in accordance with section 10.1, for the period beginning with the date of the marriage and ending on the valuation date; (“bien”)

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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).

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24 (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,

(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;

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29 In this Part,

“dependant” means a person to whom another has an obligation to provide support under this Part; (“personne à charge”)

“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act.

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).

Income Tax Act (R.S.C., 1985, c. 1 (5th Supp.))

248 (1) In this Act, ...

common-law partner, with respect to a taxpayer at any time, means a person who cohabits at that time in a conjugal relationship with the taxpayer and

(a) has so cohabited throughout the 12-month period that ends at that time, or

(b) would be the parent of a child of whom the taxpayer is a parent, if this Act were read without reference to paragraphs 252(1)(c) and (e) and subparagraph 252(2)(a)(iii),

and, for the purpose of this definition, where at any time the taxpayer and the person cohabit in a conjugal relationship, they are, at any particular time after that time, deemed to be cohabiting in a conjugal relationship unless they were living separate and apart at the particular time for a period of at least 90 days that includes the particular time because of a breakdown of their conjugal relationship; (conjoint de fait)

Climans v. Latner, 2020 ONCA 554 (CanLII)

[2] The first issue revolves around the meaning of “spouse” and “cohabit” in s. 29 of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”). Cohabit is defined in s. 1(1) of the FLA as “to live together in a conjugal relationship”. Where the parties in a long-term romantic relationship never marry, do not have children together, and choose to maintain their own homes rather than live together, was the time they spent together sufficient to amount to “living together” in a conjugal relationship?

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.

CEL-75051-18-RV (Re), 2018 CanLII 88534 (ON LTB)

3. The Landlord provided a copy of a written N11 agreement to terminate the tenancy when she filed her L3 application. The N11 agreement was signed by the Landlord and the Tenant on April 5, 2018 with a termination date of the same day.

4. Although the Landlord’s L3 application is based on a written agreement to terminate, I am not satisfied that there is a genuine tenancy or that the Board has jurisdiction to resolve the dispute between the Tenant and the Occupant over the property (the Occupant claims it is the matrimonial home).

5. The Occupant has commenced a family law proceeding in the Superior Court of Justice. The property is identified as the matrimonial home in that proceeding.

6. There is a serious error in the order since there is no landlord/tenant relationship and the Board does not have jurisdiction to resolve the dispute between the parties. As a result, the Occupant’s review request is granted.

TEL-09610 (Re), 2008 CanLII 82448 (ON LTB)

7. Finally, even in the absence of the Trust or alternatively if it was found to be defective and could be set aside, a court of competent jurisdiction might still determine that a trust attaches to the subject property. While a common law spouse may not assert possessory rights in a matrimonial home, the courts could still conclude to the existence of a resulting or constructive trust in this matter. The question of a common law spouse’s interest in real property is an issue to be determined by the courts, not the Board.

Zakhour v Nayel, 2017 ONSC 1735 (CanLII)

[13] Both of the Applicant’s claims with which I am dealing, exclusive possession of the matrimonial home and temporary (and retroactive) spousal support, are made under the Family Law Act. In order to deal with them, I must first determine whether I have jurisdiction to do so under that Act. This must happen in stages. First, I must determine whether the court in Ottawa has jurisdiction simpliciter. If so, then, based on the respondent’s request that the applicant’s application be stayed pending completion of the parties divorce/annulment in Lebanon, I must make a finding with respect to the forum non conveniens. Finally, if jurisdiction in Ottawa is established, I must decide the motion.

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[27] With respect to the applicant’s request for an order of exclusive possession of 156 Barrette Street, Section 18(1) of the Family Law Act provides: “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.”

[28] I am unable to conclude on motion that 156 Barrette Street, Ottawa, Ontario is, or was at the time of separation, the parties’ matrimonial home. Indeed, that may be the main issue for trial.

[29] The evidence before me did not reveal that the residence was ordinarily occupied by them or that they were participating in everyday family life there. Rather, the evidence seems to reveal that they were temporarily “camping out” at 156 Barrette Street as a matter of convenience. As was stated by Justice Steinberg in Taylor v. Taylor 1978 CarswellOnt 305 at paragraph 54: “The term “family residence” connotes something more than the simple occupation of a dwelling. It must be the residence around which a couple’s normal family life revolves.”

Brar v. Brar, 2020 ONSC 5637 (CanLII)

[34] Section 24 of the Family Law Act sets out the principles that apply when considering whether exclusive possession of the matrimonial home should be ordered. In particular, section 24(3) sets out the following criteria for the Court to consider:

In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children. R.S.O. 1990, c. F. 3, s. 24 (3); 2014, c. 7, Sched 9., s.4.

[35] In this particular case, the most relevant factors are the best interests of the children, the financial position of both spouses, the availability of other suitable and affordable accommodations and the history of alleged violence. I will address each factor in turn. I will return to the relevant case-law at the end of my analysis.