August 16, 2011 By:
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As our readers will know from previous Condo Law publications, Ontario's Court of Appeal has upheld the following definition of "family" contained in the Declaration of Nipissing Condominium Corporation No. 4:

Family means a "social unit consisting of parent(s) and their children, whether natural or adopted, and includes other relatives if living with the primary group".

The Court of Appeal confirmed that this definition of family required that the occupants of a unit be related. The Court of Appeal also confirmed that this did not violate Ontario's Human Rights Code.

We now have a further decision on the "single family" issue. It's the case of Chan v. Toronto Standard Condominium Corporation No. 1834 (January 6, 2011).

In this case, the condominium corporation's rules stated that the units could be occupied and used only as private single family residences. There was no definition of family either in the Declaration or the rules. Nevertheless, the Court imposed the definition of family from the Nipissing Condominium Corporation No. 4 case. The Court said:

"Courts have addressed the meaning of "family" within the condominium context and the propriety of a rule prohibiting the occupancy of units by roomers or boarders. The court accepted the condominium corporation's definition of "family" as a "social unit consisting of parent(s) and their children, whether natural or adopted, and includes other relatives if living with the primary group". The court also accepted the definition of family to mean occupants who are related. [Nipissing Condominium No. 4 v. Kilfoyl, [2009] O.J. No. 3718 (Ont. S.C.J.)]."

The Court therefore held that the owner/landlord could not lease the unit to tenants who were not related as blood relatives. According to the Court, unrelated tenants would not qualify as a "single family" as required by the corporation's rules.

Based on this new decision, it now seems that the courts are prepared to impose the definition of family (from the Nipissing Condominium Corporation No. 4 case) even if the corporation's governing documents do not contain any such definition. The only requirement is that the governing documents state that the units can be used only as single family residences.

As a result, it now appears that an Amendment to the Declaration (to introduce a definition of family) is not necessary. Again, the only requirement seems to be that the corporation's governing documents must state that the units can be used only as single family residences.

Notwithstanding the foregoing, condominium corporations wishing to apply the new definition of "family" (from the Nipissing Condominium Corporation No. 4 case) may wish to consider a rule adopting the new definition of family. This is because the historical use of the units may have been inconsistent with the new definition and the passing of a new rule (including appropriate grandfathering provisions) would be an important "deliberate step" for the condominium corporation to take before enforcing the new definition.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Family Law