The aging demographic in condominiums will present a new set of challenges for condominium corporations. Notably, as senior residents continue to grow older, many will choose to hire live-in caregivers to look after them. This situation may give rise to a breach in a condominium corporation’s provisions requiring units to be used as single-family dwellings, which restrict the occupancy of a condominium unit to a single, nuclear family. These provisions prohibit roomers, boarders and, sometimes, even extended family members from living in the unit. They may also prohibit live-in caregivers from residing in a unit.

Currently, in Ontario, there is no clear guidance from the courts about whether condominium corporations are permitted to prohibit live-in caregivers from moving into condo units with their patients.

The issue of whether live-in caregivers breach single-family dwelling provisions arose for the first time in the Court of Queen’s Bench of Alberta. An Alberta condominium resident hired a live-in caregiver to care for him. The condominium corporation determined that having the caregiver live in the unit with the owner breached one of its bylaws that required units to be used solely as single-family dwellings. This dispute made its way to court.

The Alberta Court of Queen’s Bench considered the purpose of bylaws, which is for providing for the health, safety, peace, comfort and convenience of condominium occupants, as well as the maintenance of property values and development of a sense of community. The court concluded that allowing live-in caregivers, rather than prohibiting them, was more in line with the purpose of a condominium bylaw.  In addition, the bylaw was drafted too generally to prohibit live-in caregivers. In this case, the court specifically avoided a human rights analysis.

In Ontario, however, human rights legislation would likely play an important factor in a court’s analysis of whether a single-family dwelling provision would be upheld.

The Ontario Human Rights Code specifically prohibits discrimination with regard to occupancy of accommodation. All individuals in Ontario, regardless of any physical or mental disability that might require a live-in caregiver, must be allowed to live in a condominium if they can afford it. This means that even if a condominium corporation requires that units be used solely as single-family dwellings, the condominium corporation might have a duty to make an exception for an individual that required a live-in caregiver due to a physical or mental disability or illness. In technical jargon, the condominium corporation would likely have a duty to accommodate a unit owner who required a live-in caregiver.

Indeed, any accommodation need only be reasonable, as condominium corporations are not required to undergo undue hardship in its accommodation of the unit owner and his or her live-in caregiver. If a condominium corporation determines that a live-in caregiver would cause a great deal of difficulty to the condominium community, it could require a compromise that meets the needs of the resident while minimizing any impact on the condominium corporation. However, condominium corporations will have an uphill battle trying to prevent live-in caregivers from residing with residents in a unit that is large enough to house an extra occupant, and where the condominium corporation doesn’t incur any additional costs because of the live-in caregiver.

The best policy for all parties is to be prepared. Condominium corporations should be ready to consider what kind of accommodation they are willing to allow in breach of any single-family dwelling provisions. They should also work with lawyers and management companies to draft clear bylaws, rules or policies regarding live-in caregivers and ensure that residents, unit owners and prospective purchasers are apprised of these bylaws, rules or policies.

Older individuals who intend to purchase condos and who hope to stay in their condos for as long as possible should make sure to consult condominium declarations, bylaws and rules to determine whether there are provisions prohibiting live-in caregivers. While it is unlikely that general single-family dwelling provisions would successfully bar a live-in caregiver from sharing a unit with his or her patient, a specifically worded provision might be upheld by a court, despite human rights legislation. In all cases, it is best to clarify expectations prior to purchasing a unit.

Ashley Shaffer is a condominium litigator with Fine & Deo. She exclusive represents condominium boards before courts, tribunals, arbitrators and mediators.