Section 2 of the Code prohibits discrimination in housing based on family status. This right applies to renting, being evicted, building rules and regulations, repairs, harassment, and use of services and facilities.
There is a lengthy history of families with children being turned away from housing because of negative perceptions associated with family status. These negative perceptions are compounded for young families, lone parent families, families from racialized and Aboriginal communities, and those in receipt of social assistance. The pattern of complaints received by the Commission, as well as social science evidence, indicates that this is a persistent, endemic problem in the rental housing market. The continued prevalence of “adult only” housing despite the clear prohibitions of the Code is a strong example of this.
As well, families face a range of systemic barriers to accessing housing. Families with young children, lone parent families, parents with disabilities or parents of children with disabilities, families from racialized communities and Aboriginal and newcomer families are disproportionately likely to be low income. The shelter allowance rates for families on social assistance are far below market levels. This, together with tight rental housing supply in many parts of the province, puts families at a significant disadvantage when seeking shelter.
Families identified by multiple Code grounds face a double disadvantage when seeking housing – for example, a family that includes a member with a disability must find shelter that is both accessible and accepting of children.
1. Refusal to Rent to Families with Children
As noted above, families seeking shelter face a range of negative and discriminatory attitudes and stereotypes. Some landlords prefer not to rent to families with children because they believe that children are noisy, disruptive, and will damage the property. As well, there are specific negative stereotypes about teenage children, especially if they are male or from Aboriginal or racialized communities. Female-headed lone parent families face a range of negative attitudes, particularly if they are Aboriginal, racialized, young, or in receipt of social assistance, including stereotypes that they are less responsible, less reliable, and more likely to default on their rent. Foster families also face extra difficulties in accessing housing because of negative attitudes towards foster children and foster families.
The Code does permit age restrictions in housing under some circumstances.
- Section 15 of the Code permits preferential treatment of persons aged 65 and over, and therefore permits housing that is limited to persons over the age of 64.
- Section 14 of the Code permits special programs to alleviate hardship and disadvantage, such as specially designed barrier-free housing projects aimed at older persons with disabilities.
- Section 18 creates a defence for religious, philanthropic, educational, fraternal or social institutions or organizations that primarily serve the interests of older persons and that provide housing as part of their services.
However, there is no defence that permits “adult lifestyle” housing that results in the exclusion of children or persons under a certain age.
In some cases, landlords directly refuse applications because of the presence of children. They also use a number of euphemisms to discourage or deny applications from families with children. Statements that a building is
- a “quiet building”;
- an “adult lifestyle” building;
- “not soundproof”; or
- “geared to young professionals”
may, when coupled to a refusal to rent to a family with children, indicate that discriminatory attitudes related to family status played a role in the refusal. Section 13 of the Code prohibits the publication or display before the public of any notice, sign, symbol, emblem or other representation that indicates the intent to discriminate. Use of such phrases in advertisements may be considered such an announcement of an intent to discriminate.
Landlords should not require rental housing applicants to provide information that would reveal their family status. For example, application forms should not require applicants to reveal the age of co-occupants. If landlords have a bona fide requirement for such information about tenants, they can request it after the housing application has been approved.
2. Rental Criteria
There are a number of criteria commonly used by landlords in assessing prospective tenants that may create systemic barriers for families with children. The Code, in section 21(3), provides specific guidance to housing providers with respect to the use of certain criteria in assessing and selecting tenants. Landlords are permitted to use income information, credit checks, credit references, rental history and guarantees in assessing and selecting tenants.
However, Regulation 290/98 restricts the manner in which these business practices may be used, and specifically reaffirms that landlords may not reject prospective tenants on the basis of Code grounds. None of these assessment tools may be used in an arbitrary manner to screen out prospective tenants based on Code grounds. The criteria must be used in a bona fide and non-discriminatory fashion. Where income information, credit checks, credit references, rental history, or guarantees are being applied in a fashion that creates systemic barriers for persons identified by a Code ground, the landlord will be required to show that this is a bona fide requirement – that is, that the criteria could not be applied in a way that was more accommodating without creating undue hardship for the landlord.
2.1 Use of Income Information
Section 21(3) and Regulation 290/98 permit landlords to seek and take into consideration income information from prospective tenants. “Income information” encompasses “information about the amount, source, and steadiness of a potential tenant’s income”.  The prohibitions in the Code against discrimination on the basis of receipt of public assistance mean that landlords cannot discriminate against potential tenants on the basis that the source of their income is social assistance benefits. Nor can landlords refuse to consider income such as allowances that are provided to foster families.
Income information may be sought and considered only if the landlord also seeks and considers information about the prospective tenant’s credit references and rental history. Only if the prospective tenant, when requested, provides no credit references or rental history information, can the landlord consider income information in isolation. The assessment must be bona fide, meaningful, and non-discriminatory.
It has in the past been a common practice for landlords to assess prospective tenants by applying income ratios (e.g., no more than 30% of a tenant’s income should be required to pay the rent) or minimum income requirements. This practice was assessed in Shelter Corp. v. Ontario and found to have a systemic impact on a range of groups protected by the Code, including those identified by family status. The Board of Inquiry found that these practices were not bona fide requirements as they had no value in predicting whether a tenant would default on the rent. The subsequent addition of section 21(3) to the Code and the enactment of Regulation 290/98 do not permit landlords to use minimum income requirements or apply income ratios, as has been clarified in a subsequent decision of the Tribunal.
Regulation 290/98 makes a specific exception for rent-geared-to-income housing. In assessing applicants for rent-geared-to-income (RGI) housing, landlords may request and consider income information on its own.
2.2 Rental History
Regulation 290/98 permits landlords to request information regarding rental history, and to consider it, either alone or in combination with other factors, in assessing a potential tenant.
Prospective tenants may lack a rental history for reasons related to Code grounds: for example, recent immigrants and refugees may have no rental history in Canada. Women attempting to re-establish themselves following a marital breakdown may find themselves in a similar situation.
Landlords should not treat the lack of a rental history as equivalent to a negative rental history. Where a prospective tenant lacks a rental history for reasons related to a Code ground, landlords should look at other available information regarding the prospective tenant to make a bona fide assessment of the tenant.
2.3 Credit History
Regulation 290/98 permits landlords to request credit references and to conduct credit checks (with permission from the prospective tenant), and to consider this information in selecting or refusing a tenant.
Women returning to the workforce after lengthy periods of caregiving, young families, and newcomer families may have little or no credit history. Human rights tribunals have found that the practice of refusing applicants with little or no credit history may have a disparate impact based on Code grounds. Landlords should not reject tenancy applications on the basis of a lack of credit history.
In any case, credit history must only be considered in a bona fide attempt to validly assess potential tenants.
2.4 Employment History
Some landlords require that potential tenants have ‘stable’ long-term employment. This requirement can be problematic for caregivers returning to the workforce after lengthy periods as full-time caregivers. Requirements that applicants be employed on a permanent basis or satisfy a criterion of minimum tenure with an employer have been found to discriminate on Code grounds.
2.5 Guarantors and Security Deposits
Regulation 290/98 permits landlords to require guarantees for rent, or to pay security deposits in accordance with the Residential Tenancies Act, 2006 (formerly the Tenant Protection Act). While the use of co-signors or security deposits may be appropriate where a tenant has poor references or a history of default, it is impermissible to require guarantors or security deposits because the prospective tenant is a member of a Code protected group, such as being a lone parent, or in receipt of social assistance.
When landlords request a co-signor or guarantor, they cannot require that this person meet minimum income requirements or rent-to-income ratios that would be impermissible to impose on the prospective tenant him- or herself.
2.6 Health and Safety Concerns
Landlords may not refuse to rent high-rise apartment units to families with young children on the basis of health and safety concerns. Landlords are required by the Residential Tenancies Act, 2006 to maintain health and safety standards and ensure units are in a state of good repair. Moreover, the duty to accommodate needs relating to family status applies to landlords: where modifications are required to a housing unit to meet needs related to family status, the landlord must accommodate to the point of undue hardship.
Example: A family with small children applies to rent an apartment that is on the 10th floor of the apartment building. The landlord is concerned about the safety of the children, because the apartment has a balcony. Rather than deny the apartment to the family, the landlord ensures that the balcony meets all appropriate safety standards.
3. Occupancy of Accommodation
3.1 Occupancy Policies
Occupancy policies must be based on bona fide requirements. Landlords are not obliged to permit overcrowding of their units. However, arbitrary rules regarding occupants per room or per bedroom may have an adverse impact on families with children. A human rights tribunal found a violation of the Code where a landlord denied a three bedroom apartment to a single mother of three children because the “Canadian standard” was that such apartments should be rented to couples with two children. Similarly, landlords should not deny apartments to families on the basis of arbitrary rules regarding the sharing of bedrooms by children of the opposite sex.
3.2 No Transfer Policies
As children join a family, its housing needs will change and additional space will be required. In such circumstances, families may request transfers between rental units in the same building. An Ontario Board of Inquiry held that rules prohibiting transfers between rental units discriminate on the basis of family status.
3.3 Access to Recreational Facilities and Common Areas
Age based restrictions on access to recreational facilities and common areas may discriminate on the basis of family status. For example, rules banning use of certain areas or facilities by children, or restricting their use as compared to other occupants have a negative effect on families.
Example: A condominium restricts use of its swimming pool and recreational facilities by persons under age 18 to the hours between 3:00 p.m. and 5:00 p.m. For families who do not have an adult at home during working hours, this essentially means that they cannot use the pool or recreational facilities with their children. This may constitute grounds for a human rights complaint.
There may be legitimate health and safety concerns regarding the use of certain facilities by children. Where a rule restricts or prohibits access to facilities or areas in a way that impacts on usage by families, the burden will be on the landlord to demonstrate that the rule is a bona fide requirement, and that a more inclusive rule could not be implemented without undue hardship.
4. Children’s Noise
Persons living in multi-residential housing live in close quarters and children, by their very nature, can be noisy. It is natural that children cry, run, and play.
Children’s noise is frequently a source of conflict in apartment-type housing. It has been used as a reason for denial of housing, has been the source of evictions, and has led to harassment and poisoned environments for families with children.
The normal noise associated with children should not be a reason for denial of housing, eviction, or harassment of families. Parents are obliged to take steps in accordance with good parenting practices to manage the noise made by their children and to be good neighbours. However, it should be recognized that children will naturally make some noise.
Landlords should take steps to ensure that families with children are not harassed by neighbours because of the normal noise associated with children, just as they would with regard to harassment based on other Code grounds. Where necessary, landlords can explore options such as moving the complaining tenant, or providing soundproofing where it is possible to do so without undue hardship.
 See, for example, Flamand v. DGN Investments (2005), 52 C.H.R.R. D/142 (HRTO). This case involved a landlord who denied housing to an Aboriginal woman who was a mother of one child, and subjected her to racial slurs.
 York Condominium Corp. No. 216 v. Dudnik (No. 2) (1990), 12 C.H.R.R. D/325 at paras. 165-66, aff’d (1991), 14 C.H.R.R. D/406 at para. 23 (Ont. Div. Ct.).
 St. Hill v. VRM Investments Ltd. (2004), CHRR Doc. 04-023 at para. 32 (HRTO)..
 Vander Schaaf v. M & R Property Management Ltd. (2000), 38 C.H.R.R. D/251 at para. 105 (Ont. Bd. Inq.).
 (1998), 34 C.H.R.R. D/1, aff’d (2001), 39 C.H.R.R. D/111 (Ont. Sup. Ct.).
 Ibid. at para. 137.
 Vander Schaaf v. M & R Property Management Ltd., supra note 61at para. 110.
 Ahmed v. 177061 Canada Ltd. (2002), 43 C.H.R.R. D/379 (Ont. Bd. Inq.)
 Ahmed v. 177061 Canada Ltd. ibid at para. 85.
 Sinclair v. Morris A. Hunter Investments Ltd. (2001), 41 C.H.R.R. D/98 at paras. 36-37 (Ont. Bd. Inq.). This decision found discrimination on the basis of age, as younger persons are less likely to have permanent employment or lengthy job tenure. However, similar issues arise with respect to the ground of family status, particularly with respect to the situation of caregivers.
 Cunanan v. Boolean Developments Ltd. (2003), 47 C.H.R.R. D/236 at paras. 65-66 (HRTO).
 Ward v. Godina (1994), CHRR Doc. 94-130 at para. 50 (Ont. Bd. Inq.).
 In Leonis v. Metropolitan Toronto Condominium Corp. No. 741 (1998), 33 C.H.R.R. D/479 at para. 62 (Ont. Bd. Inq.): rules banning those under 16 from accessing certain facilities, and severely restricting the use of others were found to discriminate on the basis of family status.