Family status and the Ontario Human Rights Code

Protection against discrimination on the basis of family status was added to the Code in 1982, following the recommendations made in the 1977 report on the Code’s mandate, Life Together.[40] Initially, the Code contained an exception permitting residential buildings or parts of residential buildings to be designated as adult only. This provision was repealed in December 1986, following extensive hearings before a Legislative Committee.

The Code currently prohibits discrimination on the basis of family status in the areas of employment, housing, contracts, vocational and professional associations, and services, goods and facilities.

Defining Family Status

Family may mean many things to different people. The Code, however, provides protection for only a limited number of the relationships that might be considered “familial”. Some types of relationships are protected under the ground of marital status, and in recent years, developments through this ground have added protections for common-law and same-sex couples,[41] reflecting an evolving understanding of the nature of the family. The Code also provides protections for some relationships under the ground of family status. The Code definition of family status is narrow, however, including only “the status of being in a parent-child relationship”. This is narrower than in some other jurisdictions: Alberta’s legislation, for example, defines family status as “the status of being related to another person by blood, marriage or adoption”.

There are therefore many types of relationships, which are commonly understood as “familial”, that are not protected under the Code. For example, the Code provides no protection for an individual who is providing long-term care for an adult sibling who is living with a disability, or is providing elder care for an aging aunt or grandparent. Nor is there any protection for dependency relationships that are not based on blood ties. Some have argued that laws should be expanded to protect a greater range of dependency relationships. [42] As well, the focus of the Code on the nuclear family might be considered ethno-centric, given the importance of the extended family in some cultures. [43] The question may then be raised as to whether the definition of family status in the Code should be expanded to cover a broader range of dependency relationships.

The trend in the caselaw is to interpret the ground broadly, within its limits. An Ontario Board of Inquiry has made the following statement about the scope of the protection for family status:

In our view, the definition looks to a “status” arising from being in a parent and child type of “relationship”. That is, someone acting in the position of a parent to a child is, in our view, embraced by this definition; for example, a legal guardian or even an adult functioning in fact as parent. Occasionally, for example, due to death or illness of a relative or friend, someone will step in and act as parent to a child of the deceased or incapacitated adult. Thus, if a nephew were to reside with an aunt for an indefinite period, in our view their relationship would fall within the meaning of “family status” ...[44]

The ground of family status has been found to protect adoptive families, foster-family relationships, and gay or lesbian parents.[45]

Protections against discrimination on the basis of family status have been used to challenge unequal treatment among various forms of families. For example, a Canadian Human Rights Tribunal found that citizenship rules that distinguished between biological and adoptive children discriminated on the basis of family status.[46] A British Columbia Human Rights Tribunal found that the refusal of the B.C. Vital Statistics Agency to register the same-sex partner of a birth mother as a parent of a child discriminated on the basis of sex, sexual orientation and family status.[47]

In Canada (Attorney General) v. Canada (Human Rights Comm.) and Gonzalez[48] a distinction based on the age of the child was found to discriminate on the basis of family status. The complainant challenged the requirement in the Unemployment Insurance Act whereby extended benefits for adoptive parents could only be provided where the child was six months of age or older at the time of arrival at the adoptive parent’s home or actual placement for the purposes of adoption. The Federal Court ruled that the age at which a child enters the home was a characteristic of the family that received the child, since its effect was to entitle or disentitle the family to extended benefits based on the age at which the child entered the home.

The question of whether the ground of family status can be applied to protect individuals who claim they are discriminated against because they are not in a parent-child relationship has not been examined in the caselaw. The wording of the definition of family status, as the status of being in a parent-child relationship would seem to argue against it, particularly when compared to the much more expansive definition of the ground of marital status.[49] As well, the legislative history of the protection, which evolved to deal with the continuing disadvantage experienced by persons who have parental responsibilities, would also seem counter-indicative. It would seem clear, at minimum, that the family status provisions of the Code could not be used to privilege those who are not in a parent-child relationship over those who are. For example, it would seem to run counter to the intent of the provision if it were used to strike down programs intended to accommodate persons in a parent-child relationship, on the basis that they discriminated against persons who are not in a parent-child relationship.

On the other hand, it may be inappropriate to close the door to situations where, for example, negative assumptions or stereotypes about persons who do not have children operate to deprive individuals of a significant right or benefit – for example, if an employer decided to give preference during a layoff to employees who had children, on the basis that those without children did not need their jobs as much. It may be most appropriate to consider such complaints in the light of the test enunciated by the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration)[50] and consider whether the differential treatment complained of reflects a stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value.

It has been a matter of considerable debate in the case law as to whether or not human rights protections for family and marital status includes protection against discrimination based on the particular identity of a spouse or family member, or whether it is restricted to discrimination based on the status of, for example, being a parent. This issue has been settled by the Supreme Court of Canada in the recent decision of B. v. Ontario (Human Rights Commission).[51] This decision involved a complainant, Mr. A, whose employment was terminated following a confrontation between Mr. B (Mr. A’s boss) and Mr. A’s wife and daughter over allegations that Mr. B had sexually abused Mr. A’s daughter.

The Supreme Court of Canada endorsed the Court of Appeal’s approach, finding that adverse treatment based on the identity of one’s spouse, child or parent is prohibited under the Code. The Court also applied a broad, remedial and purposive interpretation to family status in the Code. The majority also expressed approval for an analytical approach that considered discrimination claims from a “particular identity” perspective rather than from a “group identity” perspective.[52] The majority noted “...the proper inquiry is not whether the respondent belongs to an identifiable group but whether he was arbitrarily disadvantaged on the basis of his marital or family status.”[53] For example, the imputing of stereotypical assumptions or the development of personal animosity towards an individual on account of the behaviour, actions or reputation of his or her spouse, child or parent, is a prohibited form of discrimination.[54]

The Court ruled that spousal identity was indeed protected under the ground of marital status. The Court stated that:

We have concluded that the words of the Code support the view that the enumerated grounds of family and marital status are broad enough to encompass circumstances where the discrimination results from the particular identity of the complainant’s spouse or family member. Although the jurisprudence on the scope of marital status in the context of human rights legislation is uneven at best, the weight of judicial consideration also favours an approach that focuses on the harm suffered by an individual, regardless of whether that individual fits neatly into an identifiable category of persons similarly affected.

Is the definition of “family status” in section 10 of the Code overly narrow? Should the Commission consider advocating for a definition that covers other kinds of dependency relationships? If so, what kinds of relationships should the definition be expanded to cover?

Should the Code provide protection for persons who are not in a parent-child relationship? If so, under what circumstances?


The Code sets out a number of exceptions to the protections against discrimination based on family status. The most significant of these are briefly described below.

Section 15: the Code permits the age of sixty-five years or over as a requirement, qualification, or consideration for preferential treatment. This, along with the section 14 special program defence, may allow, for example, housing that is targeted to the needs of older persons and thereby excludes families with young children.

Section 18: special interest organizations that are primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination are permitted to restrict membership or participation to persons similarly identified.

Section 24: while nepotism and anti-nepotism policies clearly make distinctions based on marital and family status, the Code specifically permits such policies in the context of employment. Section 24 permits an employer to either grant or withhold employment or advancement in employment to a person who is the spouse, child or parent of the employer or of an employee. The Commission has taken the position that such a denial or preference must be based on a policy, rather than occurring on an ad hoc basis.[55] The Code does not require an employer to show that its nepotism or anti-nepotism policy is a bona fide[56] occupational requirement. The policy may relate to hiring or promotion of employees. For example, an employer may give preference in summer employment to children of employees. However, it is important to note that this exception does not allow for the dismissal of employees once they are hired. Nor does it appear to allow for different employment conditions outside of hiring or promotion. For example, family members could not be paid more than others in the same job.[57]

In an interesting twist on this issue, the British Columbia Human Rights Tribunal has recently ruled that the British Columbia Ministry of Health’s refusal to fund family members as paid caregivers under its “Choices in Supports for Independent Living” program discriminated on the basis of family status and disability.[58] The complainant had sought to hire her father to provide her with the 24-hour intimate care that she needed in order to live independently. The Tribunal stated that given the nature of the employment, the choice of the caregiver was particularly important, and that trust was essential to such an employment relationship. It also stated that the blanket prohibition on the hiring of relatives differentiated expressly on the basis of family status, and was precisely the type of discrimination that the B.C. Human Rights Code aimed at addressing, since the father was denied the employment solely on the basis of his family status, and without consideration of his personal attributes and skills. [59]

[40] Ontario Human Rights Commission, Life Together: A Report on Human Rights in Ontario (1977) at 72
[41] See footnote 2 for a brief summary of some developments related to same-sex couples.
[42] For a comprehensive discussion of law and policy issues around the protection of dependency relationships, see the Discussion Paper of the Law Commission of Canada, Recognizing and Supporting Close Personal Relationships Between Adults (May 2000), online: Law Commission of Canada <>.
[43] See for example, Marlene Brant Castellano, Aboriginal Family Trends: Extended Families, Nuclear Families, Families of the Heart, (Vanier Institute of the Family, 2002), online: Vanier Institute of the Family; Derrick Thomas, “Evolving Family Living Arrangements of Canada’s Immigrants”, Canadian Social Trends (Statistics Canada, Summer 2001); Janet Che-Alford and Brian Hamm, “Under One Roof: Three Generations Living Together”, Canadian Social Trends (Statistics Canada, Summer 1999).
[44]Dudnik v. York Condominium Corp. No. 216, (1990), 12 C.H.R.R. D/325 (Ont. Bd. Inq.).
[45]Moffatt v. Kinark Child and Family Services, (1998), 35 C.H.R.R. D/205 (Ont. Bd. Inq.).
[46]McKenna v. Canada (Secretary of State), (1993), 22 C.H.R.R. D/486 (Can. Trib)
[47]Gill v. British Columbia (Ministry of Health) (No. 1), (2001),40 C.H.R.R. D/321 (BCHRT)
[48] (1997), 32 C.H.R.R. D/89 (F.C.T.D.)
[49] Section 10(1): “marital status” means the status of being married, single, divorced or separated, and includes the status of living with a person in a conjugal relationship outside of marriage.
[50] [1999] 1 S.C.R. 497
[51] [2002] 3 S.C.R. 403
[52]Ibid at para. 52. Also see paras. 56 –58.
[53]Ibid at para. 58
[54]Ibid at para. 60. The majority expressly rejected the Appellant’s argument that personal animosity towards Mr. A was the sole reason for his termination. It found that even if this were true, the animosity arose from stereotypical assumptions about Mr. A. due to the behaviour of his wife and daughter, and not on account of his capabilities or individual merit.
[55] Ontario Human Rights Commission and Human Resources Professionals Association of Ontario, Human Rights at Work, (Toronto: Human Resources Professionals Association of Ontario, 2004), at 46.
[56] This Paper contains at its end a Glossary of legal terms related to human rights, such as bona fide requirement.
[57]Mark v. Porcupine General Hospital, (1984), 6 C.H.R.R. D/2538 (Ont. Bd. Inq.)
[58]Hutchinson v. British Columbia (Ministry of Health)(No. 4) (2004) 49 C.H.R.R. D/348 (BCHRT).
[59] Section 24(1)(c) of the Ontario Code makes specific provision for the employment of caregivers, permitting individuals to refuse to employ individuals on the basis of any prohibited ground where the primary duty is to attend to their medical or personal needs or those of their spouses, child, or relative. There is no analogous provision in the British Columbia Human Rights Code , RSBC 1996, c.210.