Evicting a Family Member in Ontario
We all want to help people, and especially family. But sometimes that desire to help can turn into a situation where you need to evict a family member. How can you go about it legally in Ontario?
The first step is to determine if the family member qualifies as a tenant under the Residential Tenancies Act. If they are living in a standalone property and not sharing a kitchen or bathroom with the property owner, they can be evicted using the proper methods required by the Landlord and Tenant Board (LTB), outlined here. If they are living in your home, or with an elderly family member, you will likely need a lawyer to resolve the situation.
Evicting a family member who is a legal tenant
In Ontario, you need a reason to evict a tenant, all of which are outlined in this document under “Reasons for ending a tenancy.” The most common reason is nonpayment of rent, which is a fairly simple reason with a long wait for a hearing at the LTB. Additionally, you need to be the property owner to initiate eviction proceedings; you cannot do it on the behalf of another family member. The only way you can do it if you are not the property owner is if a property is owned by an estate and you are the executor.
If your family member is not paying rent, you should file with the LTB at the first nonpayment to secure your place in that long line for a hearing at the LTB, even if the situation is not acrimonious. This will prevent rent arrears from piling up significantly.
If you do not have a lease agreement in place with your tenant family member, you should see a lawyer for advice as to next steps.
Evicting an adult child who lives with you
Many adult children live at home because of the high cost of living in Toronto and the GTA. This is usually not an issue with most parents, but there can be situations where it becomes one. If the home is being sold, or you simply don’t want them around anymore, the short answer is that you’ll need a lawyer if your adult child refuses to leave.
If they are sharing the home with you, they do not qualify as a tenant under the LTB – but getting them out legally may require souring the relationship. They are regarded in the eyes of the law as a “tenant at will,” which means you can’t just change the locks. This applies whether or not they pay rent.
You’ll have to go through a lawyer to issue them a demand letter in which you warn them that they will be evicted from the property after a certain amount of notice, which depends on how long they have lived in the home.
If they do not leave, they can be charged with trespassing. If that comes to pass, this would leave them with charges on their record, which could potentially hamper the employment they would need to move out. A better solution would be to try to nudge them gently towards moving out and helping them out with the resources to do so, such as therapy and/or employment counseling. A lawyer can advise you on the best course of action, and you should get one as this is a very gray area.
Evicting a family member in a property owned by an estate
If a family member is refusing to leave a property owned by a dead family member’s estate, there can be a number of legal entanglements. If they are a legal tenant, the executor can pursue eviction with the proper forms under the Residential Tenancies Act if the property is to be sold, which it usually is to satisfy an estate.
The executor should issue this form as soon as they can due to those long waits at the Landlord and Tenant Board, even if the situation is friendly. If the tenant leaves on time, they have simply served the form they legally should have under the law. If the tenant refuses to leave, they get in line for an LTB hearing that much sooner. If the adult child refusing to leave the home is an executor, the other beneficiaries of the estate will unfortunately need a lawyer to sort it out.
Getting an adult child of a deceased parent out of a home where they aren’t an executor can also be tricky. In this case, an adult son continued to stay in a house after the parent was deceased, and the property was shared in the estate with two other siblings. He argued that he was a tenant with no formal lease in place. The judge denied his claim and he was ordered to leave, but not before the estate had spent a great deal of money on legal bills.
As with any legal situation, it is best to try to mediate a solution before going to court, and a lawyer is always your best advisor as soon as evictions of family members start to get complex. If you have elderly parents or family members with an adult child living at home, you may want to make sure that they’ve dealt with the situation in their will by appointing a third-party executor who will have the power to evict the adult child from the home in the event of their death(s).
Eviction of a family member is always going to be an emotionally taxing experience, no matter how it is handled, but the law is always on the side of fairness – even if it can take some time to get there.
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