Tuesday, 17 December 2013

What if Children are the Problem?! The noises of children.

Those pesky kids!  How much does a neighbour have to put up with in relation to noisy children in another tenants unit?  Is the sound of a baby's cry grounds for eviction? Is the distinctive thump of a toddler's walk unbearable?  What about fighting siblings, shouts and screams?  What about all of those noises that children make, at inopportune times?  Are these sounds that neighbours must learn to tolerate?

The fact is that under the provisions of the Residential Tenancies Act a tenant can be evicted for the actions and noises of children as the children are occupants and hence the tenants are responsible for the noises that they make.   That being said, are children held to the same noise making (or silence) standard as other adult tenants or occupants?  The answer to this question is both yes, and no.

The Landlord and Tenant Board has held that the "ordinary" noise caused by the normal activities of children is not a basis for eviction.  The problem with this statement, of course, is that "ordinary" and "normal" are subjective  and what might be normal and ordinary to one person is utterly outrageous to another.   So, some examples of "ordinary" and "normal" may be in order.  The Board has held that a tenant's children using a swing set for chin-ups, riding a dirt bike, and using some obscenities was not grounds for termination.  Nor was it held to be substantial interference for teenage children to be hanging out in a lobby and spending time.  In an even more extreme example, a tenant's adult son who harassed and intimidated other tenants did not result in the eviction of the tenant so long as the behaviour was rectified and apologies given.

Over the years I have had some extreme examples of misconduct by children that did not result in the eviction of the tenants.  In one case, a pre-teen got in a fight with another child in the park.  The parent of the child who was hurt at the park came to the apartment to speak with the child's parents who happened to not be home.  The child answered the door and in doing so pointed and threatened the person with a lighter that looked like a handgun.  The police responded rather forcefully and the weapon was seized.  The family was not evicted as the family was a good family, the parents responded with all the discipline that is deemed appropriate today, they apologized to the person who was threatened and their history within the building was shown to be unremarkable.   The Board maintained the tenancy on the condition that no illegal act occur for the following year.

Another example is that of a child who gained access to the roof of a tall apartment building and at the instigation of a friend joined him in throwing rocks from the roof (16 stories up).  One rock hit a person who was slightly injured.  Again, in this case the tenancy was maintained as the parent disciplined the child appropriately and was doing all that she good to control the behaviour.  The tenancy was again preserved conditionally.

The examples above should not lead to the conclusion that it is impossible to evict a tenant for the actions of their children.  In fact, tenants are regularly evicted for the actions of their children and the context of those actions is quite important.  In a case from several years ago an adjudicator in hearing a case involving the actions of children stated as follows:

Taken in isolation, each singular incident or classes of complaints testified to by the landlord and her witnesses might not suffice.  But taken cumulatively, they unfortunatley establish that the tenant's children are by their loud and abusive language, by their fights and rowdiness, by their littering, by their damage to property are [sic] beyond what the landlord and other tenants are by law compelled to endure before the remedy of eviction is granted."

So when it comes to children and their behaviour, I think it is fair to say that context is everything.  One off incidents in an otherwise unremarkable tenancy, where parents are clearly disciplining their children and doing what they can, are regarded sympathetically by the Landlord and Tenant Board and tenancies will be preserved where the conduct can be controlled.    The opposite also seems to be the case, that where children are wild and parents are wilfully blind to the aggravation caused by the behaviour, then the tenancy will indeed be terminated.

1 comment:

  1. I have a long story, I know I'm entitled to enjoyment of property and such and so are they, but they are going to far with what property they are claiming and how much enjoyment they are allowed to have.

    I live in a mobile home park, I own my mobile and the tenants do not own their mobile home they are renting their homes and they are being a pain in the butt by being loud and leaving messes for me to clean up and by mess I mean 2 feet high by 10 feet long snow banks from sledding down the snow bank that the plower made from clearing snow.

    Last year they had my driveway completely blocked off after I cleaned it all up. Guess who had to clean up the kids mess? ME, I'm 100% sure the mother say the mess her kids made and quickly left for the weekend so I wouldn't make them clean up their mess.

    Long story, it really is, the landlord ended up having me print a warning letter to get these kids to stop playing on the snow banks and stop playing in the roads and playing in the cul-de-sacs.

    The landlord claims he tried to get them to stop but I don't think he did, not one bit.

    So, again, this year, they are back, (the kids) and will make a mess in my driveway again. I do have plans to file an application because he did not do anything at all that would be classed as a reasonable force to get them to stop.

    Today, the neighbours kids had a friend join them, the snow bank they have been playing on is around a telephone pole that has wire guards on them, they hang off of the guards, they fall on my property, they were throwing snow on my property, they use my property to run all over this snow bank. They made a fort in this snow bank, dug out all the snow so they can crawl under it like in a tunnel. We don't have much snow here yet this year but last year in the big snow banks these kids shovelled out the banks so they could hide in them all over the park.

    They throw snow back in the roads off the snow banks. Last year I have on video that one of the kids went to roll a big ice snow ball down the bank and "just" missed a car that was driving by to pull into their home.

    There is no play area for these kids, so, they use all of the property here as they wish, what if the kids get hurt, can't the landlord be liable for not being forceful enough?

    They play monkey in the middle and throw the ball as hard as they can and when they miss the catch I'm standing watch just waiting for it to go through a window, if that happens I'm filing against the landlord for cost of window replacement then he can go after their landlord which is my landlord's tenant for the cost of what he is out etc.

    Do you have any decisions from Canlii or decisions from the USA where the landlord was held liable for kids getting hurt on the landlords property even though it is the fault of the kids own actions for why they got hurt?

    My landlord thinks he can't be held liable for such things, he really does, told me by email.

    I want to rent out my home but, I can't because of all these kids roaming around playing everywhere. They race their bicycles down the street, skateboards, soon they'll have houver crafts all over the place.

    Thanks for doing this blog, it really is appreciated!

    ReplyDelete

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Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.