Part 30 published on 01/05/10
Court upholds definition of “family” contained in condominium declaration. Occupants had to be related
The condominium’s declaration said that the units could be used only as “one family residences”. The declaration also included the following definition of “family”:
(A family is) 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 lower Court held that these provisions required that occupants be related, and also said that this did not contravene Ontario’s Human Rights Code. [See Condo Cases Across Canada, Part 28, November 2009]
The owner appealed to the Ontario Court of Appeal. The Court of Appeal upheld the lower Court’s decision. The Court of Appeal’s decision included the following:
“The principles that apply to land use planning are different than those that apply when considering the validity of a condominium’s declaration and by-laws. Section 7(4)(b) of the Condominium Act, 1998 permits declarations to contain conditions or restrictions on the occupation and use of the units. Owners of units, among others, must comply with the Condominium Act 1998, Declaration and By-laws: See Section 119 (1) of the Condominium Act 1998.”
“In our view, the application judge correctly concluded that the only issue on the application was whether the occupancy provision violated the Human Rights Code, R.S.O. 1990, c. H.19. Further, he correctly decided that the occupancy provision does not infringe any ground listed in s. 2(1) of the Human Rights Code.”
Questions from the editor: Would similar definitions of “family” be upheld in other jurisdictions across Canada? If a condominium corporation’s declaration does not now contain such a definition, the corporation may wish to consider amending the declaration (to add such a definition). But would a Rule (to create such a definition) also be upheld?