Matrimonial Home (Possession)

O. Reg. 516/06: GENERAL

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).

(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).

TSL-09338-19-RV (Re), 2019 CanLII 134427 (ON LTB)

Issue

2. The Tenant and Occupant both lived in the unit. The Tenant vacated, leaving the Occupant in possession. The Landlord applied to terminate the tenancy on the basis of an unauthorized transfer of occupancy.

3. At the hearing, the Occupant argued that she was the Tenant’s spouse within the meaning of the Residential Tenancies Act, 2006, SO 2006, c 17 (the 'RTA'). If she were, then pursuant to subsection 3(1) of O. Reg. 516/06, she would be deemed to be a tenant and entitled to continue the tenancy after the Tenant had moved out.

4. The Tenant and the Occupant are not married, but they have children together. Pursuant to subsection 2(1) of the RTA, they would be spouses if they were living in a “conjugal relationship.” The Occupant took the position that her relationship with the Tenant was conjugal; the Tenant denied it.

5. After hearing the evidence, the Member found that Tenant and Occupant did not live in a conjugal relationship during the relevant time period. The Occupant requests a review of that finding. She argues that the Member erred by failing to hear the testimony of the Tenant’s mother, who was present at the hearing. She argues that the Tenant’s mother would have testified that the relationship between the Tenant and Occupant was conjugal.

Analysis

6. I have listened to the hearing recording. On the basis of the recording, I am not satisfied that the Member refused to hear the Tenant’s mother’s evidence. I am also not satisfied that her evidence would have supported a finding of a conjugal relationship.

7. In M. v. H., 1999 CanLII 686 (SCC), the Supreme Court adopted a list of factors for determining whether a relationship is conjugal, as set out in Molodowich v. Penttinen, 1980 CanLII 1537 (ON SC):

(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:

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:

What was the attitude and conduct of the parties concerning children?

8. In this case, the Occupant bore the onus of proving, on a balance of probabilities, that her relationship with the Tenant was conjugal during the relevant time period. The Occupant gave no evidence regarding any of the above factors, other than that she had the Tenant had occasionally had sexual intercourse. The Member pointed out at the hearing that intercourse is not sufficient to establish a conjugal relationship.

9. At the hearing, the Tenant’s mother interjected to say that the Tenant was lying, and was actually in a relationship with the Occupant. She said that in July, she had seen the Tenant with his arm around the Occupant.

10. I am not persuaded that the Member refused to hear or consider the Tenant’s mother’s evidence. The Tenant’s mother did not ask to say anything more, nor did the Occupant seek to elicit any more evidence from her. The Member considered the mother’s evidence, but also considered that the incident she described occurred after the Tenant had moved out.

11. In any case, that the Tenant once put his arm around the Occupant would be entirely insufficient to establish that their relationship was conjugal.

12. There was no evidence before the Member that could have established any of the 22 elements of a conjugal relationship, other than that the Tenant and Occupant lived in the same unit, had children, occasionally had sex, and once put their arms around each other. Even viewed as favourably as possible, the evidence was insufficient to prove, on a balance of probabilities, that the Occupant was the Tenant’s spouse. The Member did not err in her approach to the evidence, and the review will be denied.

It is ordered that:

1. The request to review order TSL-09338-19 issued on November 28, 2019, is denied. The order is confirmed and remains unchanged.

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

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).

18. In accordance with section 202 of the Act, I am not satisfied that the Landlord and the Tenant are acting in good faith. The real substance of the agreement they signed to terminate the alleged tenancy is an attempt to remove the Occupant from the home to sell the property and/or benefit the Tenant’s position in the family law proceeding.

19. Furthermore, even if there was a genuine landlord/tenant relationship, then subsection 104(4) of the Act would be applicable. That subsection deems an assignment of the tenancy to an occupant if a landlord does not take certain steps within 60 days.

20. The Landlord has been aware since at least September 2017 that the Tenant is no longer living at or in possession of the property. He is not permitted to access the property due to the domestic dispute. The Landlord claims he has not paid any “rent” since that time. Therefore, he has not maintained a connection to the property by paying the “rent”. He has no current ability to access or control the property. Therefore, he is no longer in possession of the property.

HOL-01347-17 (Re), 2017 CanLII 60040 (ON LTB)

6. Pursuant to s. 47.2(3) such a notice must be given to the Landlord at least 28 days before the date of termination specified on the face of the notice. Here, the Tenant back-dated her notice meaning she delivered it to the Landlord after the date of termination on it. So it is not valid and the second named Tenant has not severed the joint tenancy agreement that is the subject of this application.

7. The second named Tenant also argues she is no longer a tenant because she moved out. Section 47.2 would be meaningless if any tenant could simply sever a joint tenancy by the unilateral act of moving out. Rather, what she is trying to argue is that she is no longer in possession so the Board has lost jurisdiction over her.

8. The concept of being in possession is fact based. If a tenant moves out, severs all connection to a unit, no longer has any control over the comings and goings in that unit and sufficient time has passed, the Board may well make a finding that a tenant is no longer in possession.

9. That is not what has happened here. The Tenants have experienced marital breakdown and separated. The second named Tenant appears to be staying with family, her children still live in the unit, and she is still paying some of the bills associated with the unit. More importantly perhaps, there is no separation agreement between the parties so there has been no legal disposition of the matrimonial home.

10. Given the fact situation here both Tenants remain in possession of the rental unit within the meaning of the Act.