By A.J. Keilty, President, KEILTY Realty Management
Sometimes, and when it happens it happens by operation of a regulation rather than by anything either of you signs. Section 3 of O. Reg. 516/06 under the Residential Tenancies Act, 2006 pulls a tenant's spouse into the statutory definition of tenant in two situations: where the tenant dies and the unit is the spouse's principal residence, and where the tenant moves out without notice and the unit is the spouse's principal residence. The first is close to automatic. The second has five exits, four of them with a period attached, and if none of the five applies then the person who never signed the lease is your tenant.
The short version.
This is a short post on a narrow rule, because the rule itself is short and the whole difficulty is in reading it slowly. Here is each branch, the dates, and the three kinds of building it does not reach.
In one of two situations, and both of them require the rental unit to be the spouse's principal residence.
Section 3 (1) covers death: "If a tenant of a rental unit dies and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in subsection 2 (1) of the Act unless the spouse vacates the unit within the 30-day period described in subsection 91 (1) of the Act."
Section 3 (2) covers departure: "If a tenant vacates a rental unit without giving a notice of termination under the Act and without entering into an agreement to terminate the tenancy, and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in subsection 2 (1) of the Act."
Read what those two subsections do not require. No writing, no application, no landlord consent, no payment of rent by the spouse, and no name on the agreement. The status arrives by operation of the regulation. What section 3 (2) does require is that the tenant left without giving a notice of termination and without an agreement to terminate. A tenant who serves a proper notice under section 47 and moves out on the date in it has not triggered subsection (2) at all, and the spouse is then an occupant whose right to be there ended with the tenancy.
The definition is in section 2 (1) of the Act, and it is wider than marriage. A spouse is a person "(a) to whom the person is married, or (b) with whom the person is living in a conjugal relationship outside marriage, if the two persons, (i) have cohabited for at least one year, (ii) are together the parents of a child, or (iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act".
Three things follow. Limb (b) has three alternative sub-limbs, so a couple who have cohabited for eleven months and have a child together are within it even though they fail the one year test. There is no requirement anywhere that you knew about the relationship. And the question is what the relationship was, which is a question of fact you may have no way of answering from your file, so if a person is asserting spousal status the practical step is to ask them to put the basis in writing rather than to guess.
Ask carefully, though, because this is one of the few places on this blog where the tenancy question is not the only exposure. Marital status and family status are both protected grounds under the Human Rights Code, and the person you are asking may have just been bereaved or just been left. There is a difference between asking somebody to state in writing the basis on which they say they are a spouse, which is a fact you need, and pressing them for detail about a conjugal relationship, which is not. The second version puts you on the Code as well as on the tenancy. Ask for the basis, take the answer in writing, and get advice before you go behind it.
Interpretation Guideline 21, Landlords, Tenants, Occupants and Residential Tenancies, dated 2022-03-08, sets out the same definition and then adds the point an owner should hold on to: "A spouse of a tenant might not be considered a tenant depending on the facts. For example, if only one of two spouses is listed on the tenancy agreement as a tenant, the spouse who is not listed may not be a tenant for the purposes of the RTA." Being a spouse is what puts section 3 in play. It is not by itself the answer.
The tenancy does not end on day 30, and the spouse becomes a tenant.
Section 91 (1) of the Act is conditional on its own opening words. It applies "If a tenant of a rental unit dies and there are no other tenants of the rental unit", and where it applies the tenancy "shall be deemed to be terminated 30 days after the death of the tenant". Section 3 (1) of the regulation then uses that same 30 day period as the window in which a surviving spouse decides. Vacate inside it and the spouse never becomes a tenant. Stay past it and they are one.
What the two provisions do not settle between them is the exact moment the spouse's status arrives, and whether it arrives soon enough to defeat section 91 (1)'s own precondition that there be no other tenants of the unit. Section 3 (1) says the spouse "is included" in the definition unless they vacate within the 30 days, which reads more like a condition subsequent than a countdown. That is our reading of the two instruments together rather than something either of them says, and it does not change the practical answer: on a death file with a surviving spouse in the unit, do not plan around the unit being empty on day 31.
What you do with those 30 days therefore matters more than counting them. We set out the rest of a death file, including the preservation duty in section 91 (2) and the disposal power in section 92, in what happens when a tenant dies in Ontario.
Note also what section 91 (1) never reaches. Where there was already a co-tenant named on the agreement, section 91 does not engage at all, the tenancy simply continues, and no 30 day period starts. Section 3 (1) is for the case where the survivor was an occupant rather than a tenant.
Guideline 21 reads section 3 (1) the same way, and in doing so it uses a description the regulation itself does not contain. It says that subsection provides that if a tenant dies "and leaves a surviving spouse who is only an occupant and not a tenant of the rental unit, on the death of the tenant, the surviving spouse is then included in the definition of a “tenant” unless the surviving spouse vacates the rental unit within thirty days after the tenant's death". Only an occupant and not a tenant are the Board's words rather than the regulation's, and they put the co-tenant point in the paragraph above into the Board's voice rather than ours.
The same result, arrived at differently, and this is the branch with the moving parts.
Section 3 (2) has no waiting period built into it. The moment a tenant vacates without notice and without an agreement to terminate, leaving a spouse whose principal residence the unit is, the spouse is within the definition of tenant. The five criteria in section 3 (3) are then exits from that result rather than conditions on reaching it, and the subsection says so: "Subsection (2) does not apply if any one or more of the following criteria are satisfied".
Read the opening words of section 3 (3) carefully, because they carry the whole structure. It is a carve-out to subsection (2) only. Not one of the five criteria applies to a death under subsection (1). An owner who reaches for the 60 day rule on a death file is reading the wrong subsection.
Five, and any one of them is enough. Quoting section 3 (3):
The structure is worth naming, because it is not obvious on a first read. Criterion 1 is about your building and is either true or it is not. Criterion 2 is about what the spouse does. Criterion 3 is the no-arrears case. Criteria 4 and 5 are the arrears case, and they split on whether you served the notice inside 45 days: serve it and the spouse gets 15 days from receipt, do not serve it and the spouse has until an order issues.
They are also not equally easy to establish, and an owner should know which is which before spending time on the wrong one. Criterion 1 is a fact about your building, needing no notice, no order and no cooperation from anybody. Criterion 2 needs the spouse to leave. Criterion 4 needs a form served inside a fixed window and proof of when it was received. Criteria 3 and 5 need an order from the Board, which is the subject of the next heading and is the hardest of the five to reach.
Because criteria 3 and 5 both end at "before an order is issued under section 100 of the Act", and that order has to be applied for by you.
Section 100 (1) provides that "If a tenant transfers the occupancy of a rental unit to a person in a manner other than by an assignment authorized under section 95 or a subletting authorized under section 97, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant and the person to whom occupancy of the rental unit was transferred." Section 100 (2) gives 60 days after the landlord discovers the unauthorized occupancy to make that application.
Two consequences, and they run in opposite directions. If you never apply, no order ever issues, and on the face of the regulation the event those two criteria are measured against never happens. Neither criterion 3 nor criterion 5 can be satisfied, so neither is available to you as an exit from subsection (2). That makes criterion 5 in particular a trap for an owner who assumed it operated on its own.
And there is a fit problem underneath it. Section 100 (1) is drafted around a tenant who "transfers the occupancy" to somebody. A spouse who was already living in the unit as their principal residence before the tenant left was not transferred anything by anyone. Whether section 100 is available on those facts is not something either instrument answers on its face. That is our reading of the regulation against the Act rather than a settled point, and it is a reason to get advice on a live file rather than to plan around criteria 3 and 5.
It has to be a form approved by the Board, and it buys you a 15 day clock you control.
Criterion 4 is the only lever in the whole of section 3 that an owner operates. On an arrears file it converts an open-ended question into a short, dated one: serve inside 45 days of the date the tenant vacated, and the spouse then has 15 days from receiving it either to tell you they intend to remain or to agree in writing to pay the arrears. Do neither and subsection (2) does not apply to them.
The criterion says "a notice in a form approved by the Board", which is a form requirement rather than an invitation to write a letter. The Board publishes one for exactly this, listed on its forms, filing and fees page as "N14 – Landlord's Notice to the Spouse of the Tenant who Vacated the Rental Unit". That page prints no version number or date for it, and the form itself is a PDF we have not opened, so confirm you are serving the current version before you rely on it.
One further caution on the timing. The spouse's 15 days runs from receiving the notice, not from the day you sent it, so how you serve it and what you can prove about delivery decides when the clock started.
Notice also what criterion 4 does for the spouse. Agreeing in writing to pay the arrears is one of the two ways out of it, so a spouse who agrees in writing does not fall within criterion 4 at all. That does not settle the tenancy on its own, because criterion 1 or criterion 2 could still apply on the same facts and nothing about becoming a tenant answers a later arrears application. But on an arrears file a written agreement to pay is a better outcome for an owner than an empty unit and a former tenant who has gone, which is worth holding in mind before treating the N14 purely as an eviction step.
Work it on a Peterborough file. The tenant vacates without notice on Friday 2026-10-02, owing rent, leaving a spouse whose principal residence the unit is.
Now the clock that is not in that list, because it runs from a different event and it is the one an owner is most exposed on. The 60 days in criterion 2 runs from the day the tenant vacated. The 60 days in section 100 (2) runs from the day you discover the unauthorized occupancy. Same number, different periods, and on some files they barely overlap. On the example above, if you only found out in mid-November that the tenant had gone in early October, criterion 2 is spent on 2026-12-01 while your section 100 window opened the day you found out and closes 60 days after that. On a departure you hear about the same week, the two run almost together. Work each date out from its own trigger and do not let one of them reassure you about the other.
A word on how those were counted, because nothing in the regulation tells you. Rules 1.12 to 1.15 of the Board's Rules of Procedure set a counting convention, excluding the first day and including the last, but they govern the Board's own time limits and there is no filing here. We have used the same convention above because it is the ordinary one and because the regulation supplies no other, not because the Rules reach a period in a regulation. Where a day either way would matter to you, act on the earlier date and the question does not arise.
What the regulation does say is firmer than a counting convention. Section 56 of O. Reg. 516/06 lists the time requirements the Board may not extend or shorten under subsection 190 (2) of the Act, and paragraph 20 is "The 60-day period referred to in paragraph 2 of subsection 3 (3) of this Regulation" while paragraph 21 is "The 45-day periods referred to in paragraphs 4 and 5 of subsection 3 (3) of this Regulation." Read that for what it says. It removes the Board's power under subsection 190 (2) to move those two periods. It is not a statement that the parties may not agree anything between themselves.
The 15 days in criterion 4 is not on that list. We are not suggesting anything follows from the omission. We are noting that the drafter fixed the two periods that bind you and left the one that binds the spouse out of it.
No, and an owner who assumes otherwise has a problem rather than an opportunity.
Section 3 of the regulation includes the spouse "in the definition of “tenant”". It does not terminate the tenancy and it does not create a new one. Section 113 of the Act reads, in full: "Subject to section 111, the lawful rent for the first rental period for a new tenant under a new tenancy agreement is the rent first charged to the tenant." Keep the opening qualifier, and then note the words that decide this: a new tenant under a new tenancy agreement. There is no new tenancy agreement here. The existing one continues on its existing terms, which is the same result section 95 (8) reaches on an assignment, where "the tenancy agreement continues to apply on the same terms and conditions".
So the rent carries across and the rent increase history carries across with it. What you gain is somebody in the unit who is liable for the rent going forward. What you do not gain is a vacancy.
One thing you cannot ask for follows from exactly the same point, and it is the mistake this section is most likely to produce. Section 106 (1) permits a landlord to require a rent deposit "if the landlord does so on or before entering into the tenancy agreement". On a section 3 file there is no such moment, because the spouse never enters into an agreement. So there is no first deposit to ask a spouse for, and asking for one is asking for money the Act gives you no power to require. What survives is the deposit you already hold. It stays attached to the continuing tenancy, it keeps earning the section 106 (6) interest, and it can still be topped up under section 106 (3) when the lawful rent goes up. A tenancy that never had a deposit does not acquire the chance to have one because the person paying the rent changed.
The twelve month rule is a harder question than the rent, and it is worth setting out both ways rather than picking one. Section 119 (1) provides that a landlord lawfully entitled to increase the rent may do so "only if at least 12 months have elapsed, (a) since the day of the last rent increase for that tenant in that rental unit, if there has been a previous increase; or (b) since the day the rental unit was first rented to that tenant, if clause (a) does not apply." Note that it is keyed to that tenant rather than to the tenancy. On one reading, a spouse newly brought inside the definition of tenant is a different tenant and clause (b) starts a fresh twelve months. On the other, section 3 neither ends a tenancy nor starts one, the spouse joins an agreement that already has a rent increase history, and there is nothing for a fresh period to attach to. We prefer the second, and we are telling you it is a preference rather than an answer. Paragraph 13 of section 56 of the regulation puts the section 119 (1) period on the list the Board may not extend or shorten, which is a reason to get this right rather than to leave it to be argued.
Yes, and this is the provision that stops a section 3 file being a pure loss whichever way it comes out.
Section 103 (1) reads, in full: "A landlord is entitled to compensation for the use and occupation of a rental unit by an unauthorized occupant of the unit." Twenty-two words. There is no possession precondition on the face of the entitlement and no limitation period attached to it.
Section 103 (2) is what makes it safe to accept: "A landlord does not create a tenancy with an unauthorized occupant of a rental unit by accepting compensation for the use and occupation of the rental unit, unless the landlord and unauthorized occupant agree otherwise." Carry the closing words. Taking the money does not make somebody your tenant. Taking the money and agreeing that they are one does.
Two limits belong with it, because an entitlement and an order are not the same thing. Section 103 states the entitlement; it is not itself an application power. The route to a Board order for that money is section 100 (3), which lets a landlord who has applied under section 100 (1) also apply for compensation for use and occupation, but only "if the unauthorized occupant is in possession of the rental unit at the time the application is made". So the substantive entitlement carries no possession gate and the order does. And section 103 is about an unauthorized occupant. Where section 3 has already made the spouse a tenant, they are not an unauthorized occupant, and what they owe you is rent rather than compensation.
Which is the useful way round it. On the branch where the spouse becomes a tenant, you have somebody liable for rent going forward. On the branch where one of the five criteria applies and they do not, section 103 (1) is what the period they spent in the unit is worth. The outcome that leaves you with nothing is failing to work out which branch you are on until both clocks have run.
The exposure is not a rent argument. It is the possession and property provisions.
If the spouse is a tenant under section 3, then section 39 stops you recovering possession except where they have vacated or abandoned the unit or a Board order authorizes it. Changing the locks engages section 24, and doing it knowingly is an offence under section 233 (b). Clearing the unit engages section 40, which provides that "No landlord shall, without legal process, seize a tenant's property for default in the payment of rent or for the breach of any other obligation of the tenant", and doing that knowingly is an offence under section 233 (d). Section 238 (1) makes an individual liable on conviction to a fine of not more than $100,000 and section 238 (2) makes a corporation liable to not more than $500,000, both in force on 2026-07-01 via 2023, c. 10, Sched. 7, s. 9 (1, 2). We set out the property side of that in can a landlord throw out a tenant's belongings in Ontario.
The honest counterweight is that the reverse error costs money too. Treating somebody as a tenant who is not one leaves an occupant in a unit you could have recovered, and section 100 (2) closes that route 60 days after you discovered the occupancy. Both errors have a clock on them, which is why the first thing to establish is the relationship rather than the rent.
Not always, and section 3 (4) is a closed list of three. Subsections (1) and (2) do not apply to "(a) a rental unit described in section 7 of the Act; (b) a rental unit that is in a care home to which Part IX of the Act applies; or (c) a rental unit to which section 6 of this Regulation applies."
Take those one at a time, because they are narrower than the shorthand suggests.
Section 7 of the Act is the social housing group, and section 7 (1) lists six kinds of unit: federal government housing, a designated housing project under the Housing Services Act, 2011 "owned, operated or managed" by a service manager or local housing corporation, certain non-profit projects developed under a prescribed program and still operating under Part VII of that Act or a listed agreement, a non-member unit of a non-profit housing co-operative, an educational institution unit for a student or staff member that is not already exempt under clause 5 (g), and a unit operated by a religious institution for a charitable use on a non-profit basis.
Section 6 of the regulation is a second and separate group, and it has two limbs. Section 6 (1) covers units developed or acquired under five named initiatives, but only where the three conditions in section 6 (2) are met. Read the second of those three closely: the unit has to be identified as a subsidized unit, and as subject to a listed agreement, either in the tenancy agreement or in "a written notice that was given by the landlord to the tenant, if the tenancy agreement was entered into before January 31, 2007". The written notice route is not a free-standing alternative. It is only open on an agreement predating that date. The third condition is that the tenant was on or eligible to be on a social housing waiting list when the agreement was entered into. Section 6 (3) separately covers units developed or acquired "and that continue to operate" under the Rural and Native Rental Housing Program, with no equivalent of the section 6 (2) conditions but with that continuing-operation requirement of its own. A unit can be publicly funded and still fall outside both limbs.
Guideline 21 summarises all of that as meaning the extended definition "does not apply to social housing, care homes and certain types of government housing". That is a fair paraphrase and it is not the test. Cite the regulation.
One regime section 3 (4) does not mention. Section 3 (1) of the Act provides that "This Act, except Part V.1, applies with respect to rental units in residential complexes", and Part V.1 is the non-profit housing co-operative regime, where the person in the unit is a member rather than a tenant. A co-operative member unit is a different animal from the non-member unit that section 7 (1) captures, and we have not set that regime out here.
No, and the difference is the whole point of section 3.
Guideline 21 says there is no definition of occupant in the Act, and that for the purposes of Board proceedings an occupant "may be considered to be a person who is not a tenant but who lives in a rental unit as their principal place of residence". On what that status is worth, it is blunt: "As noted, a finding that a person is an occupant means that the occupant has no protection or rights in proceedings at the LTB under the RTA. Any rights that the person may have outside the RTA must be sought in a court."
Then it makes the carve-out expressly: "With the exception of an occupant who is a spouse of a tenant and to whom the extended definition of tenant set out above under the definition of “spouse” applies, an occupant cannot remain in a rental unit after the tenancy ends."
So an adult child, a sibling, a friend or a roommate left in the unit is in a different position from a spouse left in the unit, on the same facts and the same day. That is the branch to get right before you write to anybody, and we go through the wider question of who is a tenant in our post on whether somebody who is not on the lease is a tenant in Ontario. Guidelines are not law in any event, and the disclaimer printed on the face of Guideline 21 says so: "a Member is not required to follow a Guideline and may make a different decision depending on the facts of the case."
Then read section 163 before you rely on section 3 (1), because the two do not sit comfortably together.
Section 163 provides that "Sections 91 and 92 do not apply if the tenant owns the mobile home." That is a whole-section disapplication rather than a surgical one, so it takes out the preservation duty in section 91 (2) and the estate provisions in section 92 along with the 30 day period. Section 3 (1) of the regulation is drafted by reference to "the 30-day period described in subsection 91 (1) of the Act", so where section 91 does not apply to the tenancy at all, what that 30 day period means is not something either instrument answers. Section 3 (2), which contains no cross-reference to section 91, is not affected by the same difficulty.
We are flagging the question rather than answering it, and the fuller treatment of what section 163 displaces and what Part X puts in its place is in what rules apply to a mobile home park or land lease community in Ontario. On a site with a surviving spouse, take advice rather than resolving it off either page.
None of this is in the regulation. It is process, and on a 45 day window it is what decides whether you had a choice.
One thing an owner should hear plainly. Answering this question does not by itself put money in your account, though it does decide what kind of money you are owed. A spouse who becomes a tenant owes rent going forward. A spouse who does not become a tenant was an unauthorized occupant while they were there, and section 103 (1) entitles you to compensation for that use and occupation. Neither of those is the arrears the departed tenant left behind, which are a separate application under section 87 whichever branch you land on.
An owner with one or two units can read section 3. It is four subsections and it fits on a page.
What is harder is doing it in the week it happens, when the person in the unit has just been bereaved or has just been left, and the questions you need answered are about their relationship and their address history. Getting those answers without making the situation worse is the skill, and it is not a legal skill. So is holding the line on the locks and the furniture while somebody is telling you the unit is theirs and you are not sure yet whether it is.
Where KEILTY earns its keep on a file like this is the dating and the paper. The date the tenant vacated or died, the date you found out, the basis on which somebody says they are a spouse, whether the unit is their principal residence, and a diary entry at 45 days and 60 days. That file is what you would answer an application with, and the parts of it that matter are the ones that have to be recorded while they are still happening. If you own a house or a condo and it is being handled off the side of a desk, our single-family rental page sets out how we run it.
Somebody is still in the unit and you are not sure whether they are now your tenant? Get in touch and we will work through the dates with you.
This post is general information about Ontario residential tenancy law as of 2026-09-07, not legal advice. Legislation, regulations and tribunal practice change. For advice on a specific property or situation, speak with a lawyer or licensed paralegal.
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