In a recent Alberta decision, a father successfully challenged a condominium board’s attempt to evict his four year old daughter based on a bylaw prohibiting people under the age of 18 from living in the units.
Father Challenges Eviction from Condominium
The father bought a unit in the condominium building in 2013 in Edmonton, Alberta. He had alternated between living in the unit and renting it to various tenants while living elsewhere in Edmonton.
In 2014, he married a woman from Arizona, who initially continued to live there, and in 2016 they had a child, who first lived with the mother in Arizona.
In the fall of 2016, the father took over parenting of the daughter, returning with her to Canada and moving with her into the unit for about three months, before they moved to another condominium building in Edmonton.
In March 2017, the mother joined the father and daughter in Edmonton and began living with them at the other building. The parents and daughter moved into the original unit in February 2018.
In August 2018, the couple decided to separate. The mother moved elsewhere in Edmonton, and the father eventually moved with the child back into the unit, at the end of May 2019.
However, from May 5, 1999 until March 2, 2020, the condominium’s bylaws barred residence by a minor. The relevant provision stated:
“No unit shall be occupied as a residence by any person under the age of Eighteen (18) years of age.”
The condo board had reminded the father of this bylaw on prior occasions.
Then, in March 2020, the condo’s bylaws were amended following changes to the Alberta Human Rights Act addressing age-restricted residences. The new provision created an exception to the age restriction and stated:
“Unit may be occupied by a person who has not attained their eighteenth (18th) birthday if that person: […]
(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 March 2020, the board applied to terminate the child’s residence in the unit.
The father applied to court to fight the condominium board’s bid to evict the child (and effectively him as well) for breach of the condominium’s “no minors in residence” bylaw.
The father did not dispute the bylaw. He instead pointed to the exception for a condominium occupant who, after his or her occupancy begins, and owing to “unforeseen circumstances”, becomes the primary parent of a minor. He argued that when his separated spouse relocated to Arizona, he became the child’s primary and sole caregiver.
The board claimed that the exception did not apply, arguing that the father had already become the “primary parent” before his wife’s relocation to the US.
Court Finds in Favour of the Father
First, the court determined that the new bylaw, containing the exception, applied over the former bylaw because the board had only sought to evict the daughter after the new bylaw came into effect.
Second, the court found that the father had only become the child’s primary caregiver on his wife’s departure from Canada, which occurred after March 8, 2020.
The court then had to determine whether, given the exception’s closing words, the change in parenting was “due to an unforeseen event.” The condominium bylaws did not define “unforeseen event.”
The court found that there was no evidence showing that the wife’s departure was “foreseen”. As a result, the court concluded:
“I find that the father indeed “became … the primary caregiver [of a minor child] due to an unforeseen event” i.e. the mother’s unexplained-on-the-evidence decision to relocate, apparently permanently, to the US.
As a result, the Board’s “no minors in residence” rule does not apply here.”
The father and daughter were thus permitted to remain in the unit.
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