An Alberta father recently won a legal fight with his condominium board’s attempts to evict him after he was unexpectedly forced to take on full-time caregiving responsibilities to his child, which was in breach of the condo’s “no minors in residence” bylaw. The decision is a helpful lesson in the importance of working with an experienced lawyer to carefully review bylaws in order to understand your full rights and responsibilities as a tenant in a condo.

Father originally lived in condo without child

The father bought his condo unit (“the unit”) in 2013. He would sometimes live in it, and at other times would rent it our while living elsewhere. He married a woman from Arizona in 2014 and in 2016 they had a child who lived with the mother in Arizona. However, in the fall of 2016 the mother began to experience health issues and moved to Canada with the daughter. They lived in the unit with the father for a few months until securing a condo of their own.

The relationship between the parents ended in 2018. The mother returned to the United States, while the child stayed with the father, living in the unit.

Condominium does not allow children

The condo’s bylaws originally stated that “no unit shall be occupied as a residence by any person under the age of Eighteen (18) years of age…” It was amended in March 2020 due to requirements under the Alberta Human Rights Act. The amendment called out exceptions where a minor can live in a unit, including if the child:

(i) is a surviving spouse or adult interdependent partner of a deceased former occupant of the Unit who, at the time of death, was cohabiting with the deceased former occupant.

(ii) is providing home-based personal or health care services to an occupant of the Unit

(iii) is or are minors, related by blood, adoption, marriage or by virtue of an adult interdependent partnership, to an occupant of the Unit, of whom the occupant has, since commencing occupancy of the Unit, become the primary caregiver due to an unforeseen event.

In this case, the father claimed that his situation fell under the third exception and that his separation from the mother was an unforeseen event that required him to become the child’s primary caregiver.

Can the child remain in the unit?

The court stated that had the condo board attempted to enforce the bylaw prior to the 2020 amendments, it would have been successful in forcing the father and child to move. However, since the attempt to evict them did not start until after March 2020, the court had to determine of the separation was enough to qualify the father and child for an exception.

The court found that even though the child was occasionally at the condo before the parents’ separation in 2020, it was not until March of that year that the father assumed full caregiving responsibilities of the child. The court also agreed with the father that the separation was an unforeseen event, and as a result, the father and child fall under the exception and may continue to live in the unit.

Condominium disputes require legal advice from knowledgeable counsel with experience addressing such matters and who understands the complex condo industry. Contact HMC Lawyers to speak with a member of our Advocacy Team and get strategic and trustworthy advice. Call 1-800-480-3534 or contact us online. We represent clients in Calgary, the province of Alberta, and across Western Canada.