I recently had two different clients approach me with very similar issues – both were non-profit housing providers that wanted advice on how to deal with a situation where there had been incidents of domestic violence in their residential complexes. In such situations, the alleged assailant is typically prohibited from returning to their home, at least temporarily until the charges have been dealt with and they are either found guilty or acquitted. However, the question before me was what could be done for a victim of domestic violence who wanted to remain in their home and wanted the assailant to be removed from the rental unit permanently. In short, I was asked what the housing provider could do to evict the assailant, but only the assailant.
Unfortunately, the answer is that residential tenancy law does not really provide a mechanism to achieve this result. This is the case for both for-profit and non-profit housing providers. While the residential tenancy legislation in most of the provinces and territories does provide some recognition of the need to provide protection to victims of domestic violence, the “solutions” all appear to require the victims to leave their homes, which seems to be an imperfect solution at best.
A big part of the reason for this is that residential tenancy law does not really deal with issues relating to specific tenants; instead, where there is more than one tenant in a rental unit (called joint tenants) issues are dealt with on the basis of tenancies and all of the joint tenants are treated as a group. It is important to note that this concept applies to all of the tenants in a unit, and not necessarily to all of the residents in a unit. If you are not listed as a tenant on the lease, you may be treated very differently.
One effect of this approach is that the law does not provide a way to evict a specific tenant or tenants. Instead, it contemplates eviction of all of the tenants in a particular household. For example, if you were a model tenant, but had a roommate who was damaging the premises (or committing some other evictable offence), the landlord would either have to accept that behaviour or evict you as well as your roommate. What this means in the context of domestic violence (assuming both spouses are listed as tenants on the lease) is that if the landlord wants to take steps to evict the assailant, they also have to evict the victim (and any other members of the household, such as any children).
In addition, another effect of this is that where there are joint tenants, a single tenant cannot terminate the tenancy without the other joint tenants agreeing to terminate the tenancy as well. This would mean that a victim of domestic violence could not get out of a lease unless the assailant also agreed to terminate the lease. Fortunately, though, on this one point at least, most of the provinces and territories have provided a solution in the legislation, by providing that a victim of domestic violence can unilaterally terminate their status as tenants without the other tenants (such as the assailant) agreeing to terminate the lease. In some jurisdictions, like Ontario, the tenancy will continue for the remaining tenants, but in others (like British Columbia or Alberta), the tenancy will be at an end for all of the tenants (although these laws generally provide that the landlord and the remaining tenants can enter a new tenancy agreement).
However, as this “solution” requires the victim to leave their home, it is imperfect at best. But if legislation can be enacted to get around the general approach of treating joint tenants as a unit by letting the victim of domestic violence unilaterally terminate a tenancy (or at least, their interest in the tenancy) so they can leave an abusive situation, why can’t legislation be enacted to permit landlords and victims of domestic violence address this situation by letting landlords evict only the assailants? There would have to be safeguards, of course. For example, any such option should only be available if the victim of the domestic violence consents. In addition, consideration would have to be given to what level of proof will be required before the assailant can be evicted, but residential tenancy law already permits landlords to seek eviction orders because of illegal activity at the residential complex. There is no reason that the same standard of proof required for those sorts of evictions could not also apply to this situation.
In the end, though, while it is a positive step that victims of domestic violence have a way to get out of a lease without needing the assailant to agree, it requires the victim to leave their home, and ties the hands of housing providers who want to offer a better outcome. Surely the time has come to take a hard look at implementing a solution that removes the problem, not the victim.
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