IV. Defining family status

1. The Current Code Definition

The Code includes two grounds that provide protections for persons in relationships: marital status and family status. “Marital status” is defined in section 10 of the Code as “the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage”, including both same-sex and opposite sex relationships. “Family status” is defined as “the status of being in a parent and child relationship.”

The grounds of marital and family status intersect to cover a range of family forms, including lone parent and blended families, as well as families where the parents are in a ‘common law’ relationship.

In accordance with the principle that a broad and purposive approach must be taken to the interpretation of human rights,[29] tribunals and courts have taken an expansive approach to the interpretation of the ground of family status. The ground has been interpreted to include adoptive families, foster families, and non-biological gay and lesbian parents.[30]

An Ontario Board of Inquiry has enunciated the broad principle that the definition relates to being in a parent and child “type” of relationship, and thus includes situations in which someone is acting in the position of a parent to a child.[31] This may be a legal guardian, or an adult otherwise functioning as a parent, and may therefore include parent-child relationships formed by marriage and common-law relationships.

It is the Commission’s position that the ground of family status includes care relationships between adult children and their parents.[32] Therefore, individuals providing eldercare for ailing parents are entitled to accommodation on the basis of family status. Similarly, those providing care to spouses with disabilities are entitled to accommodation on the basis of marital status.

2. Limitations of the Current Definition

During this consultation, the Commission heard numerous concerns about how “family status” is defined and interpreted under the Code, and the appropriateness of this definition in light of the current diversity of family life and caregiving relationships in Ontario.

Many expressed concerns that important parenting relationships are not or would not be protected or recognized in many circumstances:

When I was young my brother lived for several years with an older couple who had no children. This was due in part to our family’s economic status as well as the closeness of the relationship to “Granny and Gramps.” If a CAS agency had been aware at the time of my brother’s living arrangement, I’m sure he would have been taken into custody.
Anishnabe man

A number of consultees referred to the limitations of “traditional” and “nuclear” concepts of the family. The “traditional” concept of family, consisting of a father in the paid workforce married to a woman who is a full-time caregiver for their children, is only one of a range of family forms. There have always been families who did not fit this model but it has become increasingly out of date over the past few decades, due to a range of demographic shifts.[33] A recent study by the Vanier Institute on the Family indicates that the nuclear family model, consisting of a married heterosexual couple with at least one child, now fits fewer than half of Canadian familes.[34] Many consultees called attention to the discrepancy between idealized concepts of the family and contemporary realities:

In many ways, legislation, workplace policies and societal attitudes are rooted in an old notion of the family....Alongside what has been called the “nuclear family”, are growing numbers of households headed by single parents, blended families, same sex unions, multi-generational households and adult siblings sharing a home.
CAW Canada

The Commission heard that failure to protect and accommodate a broader range of family relationships beyond those currently recognized in the Code perpetuates the disadvantage experienced by women, persons with disabilities and their families, older persons, Aboriginal, newcomer and racialized families, and LGBT persons. The Commission heard that this exclusion could be considered to have an adverse impact on groups protected by these grounds, and that steps must be taken to ensure adequate protection for the caregiving needs of the families of Ontarians identified by the above Code grounds.

For example, because of homophobia and transphobia, many LGBT individuals are rejected by their families of origin, and rely on “chosen families” for care and support: however, these important relationships are not generally recognized or protected by the Code:

Many lesbians, gays, and bisexuals have been rejected by most, if not all, of our families or origin and prefer the notion of “chosen families” ...We can see no reason why these connections should not be equally honoured and protected.
CLGRO

Similar issues were raised with regard to older Ontarians. The Older Women’s Network indicated that, where older persons are not married and have no children, they become very dependent on broader networks. The Halton Region’s Elderly Services Advisory Committee (ESAC) stated that:

Because of family breakdowns, mobility of family members, the increase in three generational families, changing relationships, etc., there must be more recognition of expanded dependency relationships.

Consultees described the importance of in-laws, siblings, grandchildren, cousins, nieces or nephews, and friendship networks as caregivers and supports. A consultee indicated that she had named friends to deal with her Power of Attorney and will, describing her own definition of family as “who is important to you, who do you trust?”

The Commission heard that the caregiving networks for persons with disabilities include a range of family relationships other than the parent-child relationships covered by the Code, and described a number of ways in which the equation of family support with spousal or parent-child relationships excludes other family supports that are important for persons with disabilities:

Often there is no living parent, child or spouse for an ODSP recipient who can receive accommodation or even understanding from their employer, which has a discriminatory effect both on the family member and on the person receiving care. ... ODSP recipients and people with disabilities, in general, often rely on the care provided by their extended families – siblings, cousins, aunts uncles, nieces and nephews – and friends to ensure that they can attend medical appointments, access ODSP information, meet financial commitments, shop and otherwise take part in their communities.
Ministry of Community and Social Services (MCSS)

ARCH and other consultees described a number of care and support arrangements used by persons with disabilities, such as guardians, supported decision-making networks, alternate family arrangements similar to foster care, and “homeshare” arrangements made between adults, and indicated that persons with disabilities suffer from a lack of legal recognition of these arrangements.

Many consultees referred to Canada and Ontario’s increasing ethnic diversity in discussion of the definition of family status. Ontario accounts for more than half of all Canadian immigration:[35] as of 2001, 27% of Ontario residents and 41% of residents in the Greater Toronto Area were born outside Canada.[36] The Commission heard that many cultures define family in ways much broader than the current protections of the Code. As a result, persons identified by race and related grounds, such as ethnic origin, place of origin, ancestry and creed, may find the Code definition excludes their experience of family:

I’ve always been aware of (and many times thankful for) the differences between my cultural heritage and that of mainstream Canada. I think that many agencies with a responsibility to children need to expand their definition of family to include extended family and close friends – especially in cultures that are not WASP.
Anishnabe man

OFIFC also noted that poverty among Aboriginal communities, both on and off reserve, also contributes to a tendency toward multi-generational households. As a result, the Commission heard from many consultees that it is necessary to expand protections for family status to more adequately address this reality. For example, OECTA indicated that a broader definition “... would do much to capture the nuances of family relationships in Ontario’s multicultural society”.

3. Principles and Considerations

The Commission heard strongly that the Code definition of family status must be broadened to include a wider range of relationships. Consultees in submissions and in the Roundtables identified a number of principles and considerations that should guide any definition of family status.

Caregiving and Interdependency

Legislation protecting familial relationships may be based in part on the recognition of the value of close personal relationships, and the desire to support relationships in which care is provided.[37] Care is labour that is essential to the smooth functioning of society, and family has long been understood in terms of caregiving relationships. It is on this basis that some anti-discrimination legislation in other jurisdictions specifically identifies protections on the basis of “responsibilities as a carer.”[38]

If laws and protections meant to support caregiving relationships use as convenient proxy only the most visible structural relationships, such as marital and parent-child relationships, many people and caregiving relationships will be excluded.[39] However, the Vanier Institute for the Family states that, if we recognize and refocus on the importance of care, “...we shift our energy from arguing about what a family is on the basis of structural characteristics, to emphasizing what family members do and can do for each other in the name of care.”[40]

The Commission heard that most accommodation of family status relates to caregiving, that any definition of family status should relate to care, and that care relationships require further protection:

...family status must be broadened to include dependency relationships such as caring for disabled adults, providing eldercare, and caring for unrelated persons who are part of our extended families or who have close personal relationships with us.
OECTA

[T]he definition should be expanded to include relationships where there is dependency of one person on another, regardless of whether they are in a conjugal relationship recognized by the state or are related by blood or adoption. Such dependency may be because of disability, age, infirmity, or economic circumstances.
CLGRO

[The current protection] should be expanded to include other dependents that are in a person’s care. Issues concerning dependant care are experienced in the same way [as parent/child relationships]. The consequences of not accommodating individuals with such responsibilities... can be significant.
ALOC

It is important to note that most relationships between care providers and older persons or persons with disabilities are not one-way but reciprocal, and that parties in many relationships both provide and receive care and support.[41] Social science research also indicates that we are motivated as much by our own need to give care as we are by the needs of others.[42] A number of consultees therefore suggested terms such as “relationship and care responsibility”, “duty of care”, and “interdependency”.

Commitment

Another of the principles enunciated by consultees for identifying relationships that require protection is that of commitment, which implies a level of closeness and permanence in the relationship.[43]

The definition should be expanded to include care and commitment relationships... as well as close mutual relationships beyond the scope of ‘blood ties’.
Centre for Families, Work and Wellbeing (CFWW)

Family means many things to different people but always the term suggests caring and permanence.
MCSS

Roundtable participants and organizational submissions discussed the importance of permanence or length of relationship in establishing the genuineness of a relationship, protecting vulnerable persons from opportunistic individuals presenting themselves as “caregivers,” and protecting organizations and employers from abuse of family status accommodations. One consultee referred to guidelines from a government service organization, which contains the phrase “There is a settled intention to treat someone as a member of the family.” [44]

Many Roundtable participants found this to be a useful concept; however, some noted that family and caregiving relationships cannot be assumed to be static and unchanging. Roundtable participants noted that the need for care and accommodation of a caregiver can arise suddenly and unexpectedly, or can change quickly in emergency situations. CFWW suggested that the definition must include “care and commitment relationships that may be unpredictable and must be considered on a case by case basis.”

Some consultees felt that settled living relationships or permanence were important indicators of commitment. Roundtable participants suggested that definitions could include a clause or phrase that allows for accommodation of other cases, suggesting wording from collective agreements that include “unrelated specific members of the household.” Halton Region’s Elderly Services Advisory Committee indicated that the definition should incorporate “...established living relationships where there were shared responsibilities for accommodation, finances and caregiving.” Others cautioned against a definition limited to shared living arrangements, as persons giving and receiving care may not live together, but have an important closeness that may sometimes require accommodation, and suggested a phrase to include an “ongoing, long-term significant relationship with an unrelated person.”

Practical Considerations and Limitations

Some organizations expressed concerns regarding the additional burden that might be placed on employers by expanded protections for caregiving relationships. The Human Resources Professionals Association of Ontario (HRPAO) indicated that current legislative requirements can already be onerous for employers, particularly smaller employers, and expressed concern about additional requirements resulting from an expanded Code definition of family status. This was echoed by the Canadian Manufacturers and Exporters:

There must be a practical limitation on the scope of “family status.” To construe the concept of “family status” overly broadly would impose an obligation to accommodate on employers that would, in many cases, approach undue hardship.

Some employment-related organizations indicated that any definition must be clear and certain. A Roundtable participant indicated, “employer providers do not want to have to decide what is a relationship, and what is not.” Some Roundtable participants pointed to potential practical solutions to any uncertainties, such as the protocols and forms used by schools to identify who has the right to pick up children, and the fact that many caregiving relationships will be formally documented through powers of attorney and living wills.

4. Approaches to a Definition

Consultees pointed to a variety of options for developing a more inclusive definition of ‘family status’.

  1. Leave the term undefined: In some jurisdictions, family status protections are not explicitly defined. For example, the Canadian Human Rights Act[45] provides for freedom from discrimination based on family status, but does not define the term. This has the benefit of flexibility, and may therefore allow for broad interpretation. However, it lacks clarity, and is therefore open to misinterpretation or narrow interpretation.[46]
  2. Inclusive list of familial relationships: Some legislation provides specific lists of relationships covered, and several consultees referred to the usefulness of definitions found in federal and provincial legislation relating to employment, such as the Employment Standards Act.[47] A number of consultees suggested that a list of specific relationships is the clearest and most practical way to set out the definition, and that it makes the legislation easier to interpret and implement. However, others indicated that a set list is exclusive and inflexible: it would not sufficiently address the broad range of relationships that may require accommodation, or unexpected changes in caregiving relationships. 
  3. Principle-based definition: Iinstead of specifying particular familial relationships, Alberta’s human rights legislation defines family status as “the status of being related to another person by blood, marriage, or adoption.”[48] A number of stakeholders suggested that the Code should adopt a similar definition because of its flexibility and broader inclusion of family relationships. Family Service Canada noted in particular that the Alberta definition includes important adult-adult relationships not currently covered by the Code. However, others noted that many relationships may still be excluded by this definition. The Halton Region’s Elderly Services Advisory Committee noted that its members like the Alberta definition, but felt that it should incorporate relationships based on circumstances that caused responsibilities to shift to a non-family member. At the same time, some consultees were concerned that more open definitions lose clarity and certainty, and that it is difficult to establish the genuineness of an accommodation request relating to relationships beyond immediate family.
  4. Use of a ‘basket clause’: Some definitions combine a list of specific relationships covered with a more general statement. For example, the “Emergency Leave” provisions in Ontario’s Employment Standards Act list a number of relationships that are specifically protected, and also include “a relative of the employee who is dependent on the employee for care or assistance.” A number of roundtable participants preferred this type of definition because it provides some clarity but also allows for flexibility to account for broader and less predictable caregiving demands. Other consultees expressed concern about open definitions, due to lack of clarity as to who is covered, and difficulty of establishing the genuineness of an accommodation request relating to family status.

Key conclustions

The Code’s current definition of family status is under inclusive and may have an adverse impact on a number of groups protected by the Code.

The Code should be amended to include a broader range of relationships that is more reflective of current family and caregiving relationships in Ontario. As well, legislation and programs providing entitlements and protections for caregiving should reflect the needs of the broad range of caregiving responsibilities and family relationships currently existing in Ontario. It is a best practice for employers, service providers, and landlords to ensure that their policies, programs, and practices accommodate and include the broad range of family structures and caregiving relationships that currently exist in Ontario.


[29]Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R 145 at 157 [“Heerspink”]. See also Zurich Insurance Co. v. Ontario (Human Rights Commission), [1991] 2 S.C.R. 321 at para 58 [“Zurich”].
[30]Moffatt v. Kinark Child and Family Services, (1998), 35 C.H.R.R. D/205 (Ont. Bd. Inq.);. McKenna v. Canada (Secretary of State), (1993), 22 C.H.R.R. D/486 (Can. Trib); Gill v. British Columbia (Ministry of Health) (No. 1), (2001),40 C.H.R.R. D/321 (BCHRT).
[31]Dudnik v. York Condominium Corp. No. 216, (1990), 12 C.H.R.R. D/325 (Ont. Bd. Inq.).
[32]Supra, note 16
[33] For a discussion of demographic trends affecting Ontario families, see the Ontario Human Rights Commission’s Human Rights and the Family in Ontario (2005), online: Ontario Human Rights Commission <www.ohrc.on.ca>
[34] Vanier Institute of the Family, Profiling Canada’s Families III (2004): 18, online: Vanier Institute of the Family <www.vifamily.ca>.
[35] Ontario absorbed 52% of all Canadian immigration in 2005 (Citizenship and Immigration Canada: http://www.2ontario.com/software/ois/LabourForce.asp).
[36] According to the Statistics Canada 2001 census: Ontario Ministry of Citizenship and Immigration, http://www.citizenship.gov.on.ca/english/about/b211105.htm.
[37]Recognizing and Supporting Close Personal Relationships Between Adults, Discussion Paper, Law Commission of Canada. May, 2000, online Law Commission of Canada <www.lcc.gc.ca>; Vanier Institute of the Family “Reframed Family Portraits”, online Vanier Institute of the Family <www.vifamily.ca>
[38] See, for example, the New South Wales Anti-Discrimination Act 1977, Section 49S.
[39]Supra, note 37. Also the CLGRO submission indicates that if the intent is to support domestic units as an economic measure, there is no reason why these should be sexual or procreative in nature.
[40]Supra, note 37
[41] For example, ARCH submission, citing Law Commission of Canada (LCC), Personal Relationships of Support Between Adults: the Case of Disability, Roeher Institute (Ottawa:LCC, March 2001).
[42]Supra, note 37
[43] The Vanier Institute of the family has suggested that that a “sustained commitment to care is central to how families should be defined.” Supra, note 37
[44] Ministry of Community Services, Special Services at Home (SSAH) Program Guidelines (Toronto, Queens Printer for Ontario, 2002) at G-3.
[45]Canadian Human Rights Act, R.S.C. 1985, sections 2 and 3(1).
[46] The Canadian Human Rights Commission has developed a working definition, available online at http://www.chrc-ccdp.ca/discrimination/family_status-en.asp
[47] The Employment Standards Act extends rights to emergency leave specifically to spouses, children (including step-children and foster children), parents (including step and foster parents), grandparents, siblings, spouses of children. S.O. 2000, c. 41, s. 50
[48] Alberta Human Rights. Citizenship and Multiculturalism Act. Nunavut’s Human Rights Act uses the same definition