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1. Code Definitions
Contemporary families in Ontario are extremely diverse. There have always been families that did not fit the “traditional” family model: that is, a father in the paid workforce who is married to a mother who is a full-time caregiver for their children. However, demographic shifts over the past few decades mean that this model is no longer the norm. The Vanier Institute of the Family indicates that fewer than half of all Canadian families now consist of a married heterosexual couple with one or more children.[10] Some of the most important demographic shifts regarding families are noted below.[11]
- Almost one-quarter of families with children are now lone-parent families, in most cases headed by women.
- Increasing divorce rates have led to a rise in blended and dual custody families.
- There has been growing recognition of families headed by gay, lesbian, bisexual, and transgendered (LGBT) persons, whether as lone parents or part of a couple.[12]
- With the growing diversity of Ontario’s population has come a broader range of cultural constructs of the family, often including increased emphasis on extended family networks.
- As Ontario’s population continues to age, families are increasingly grappling with eldercare responsibilities.
- The movement en masse of women into the paid labour force has led to shifts in gender roles and expectations within families.
These familial relationships of care and commitment are essential, both to individual well-being and to the effective functioning of society. Persons who are providing care to family members are benefiting society as a whole, and should not face discrimination, exclusion or disadvantage as a result.
The Code provides explicit protection against discrimination for specific relationships, through prohibitions on discrimination because of marital status and family status.
Section 10(1) of the Code broadly defines the ground of marital status as follows:
“marital status” means the status of being married, single, widowed, divorced or separated and includes the status of living in a conjugal relationship with a person outside of marriage.
This definition includes both same-sex and opposite-sex relationships.
The ground of “family status” is more narrowly defined in section 10(1) as “the status of being in a parent and child relationship”.
These two grounds intersect to cover a range of family forms, including lone-parent and blended families, and families where parents are in same-sex or “common-law” relationships.
These grounds do not, however, cover the full range of relationships that most would consider familial, including relationships with siblings, or with members of the extended family, such as grandparents and grandchildren, aunts and uncles, nieces and nephews, and cousins. It excludes the kinds of “chosen families” often adopted by LGBT persons, as well as the diverse forms of support networks developed by persons with disabilities. Persons discriminated against because of these relationships cannot file complaints on the basis of “family status” unless they can demonstrate a parent-child type of relationship, as is further discussed below. While not all familial relationships attract negative stereotyping or disadvantage, a broad definition can ensure that the needs of caregivers in various familial relationships will be accommodated.
In its Consultation Report on Family Status, The Cost of Caring, the Commission states that the current Code definition excludes important familial relationships, and has an adverse impact on individuals identified by sexual orientation, gender identity, sex, disability, age, creed, and race and race-related grounds (ethnic origin, place of origin, ancestry, citizenship, and colour) of the Code and concludes that the Code should be amended to recognize the broad spectrum of family types in today’s Ontario.
The Commission recommends that, as a best practice, employers, housing providers, and service providers recognize and accommodate a broader range of familial relationships than those described by the grounds of marital and family status.
Example: When drafting its policy on accommodating caregiving needs, an employer includes siblings, extended family, and other persons dependent on the employee for care and assistance.
2. The Scope of the Ground of “Family Status”
In accordance with the principle that a broad and purposive approach must be taken to the interpretation of human rights protections, tribunals and courts have taken an expansive approach to the interpretation of the ground of family status, which is currently defined as the “status of being in a parent and child relationship”.
The ground of family status protects non-biological parent and child relationships, such as families formed through adoption, step-parent relationships, foster families, and non-biological gay and lesbian parents.[13]
An Ontario Board of Inquiry has set out the principle that the definition of family status covers all those who are in a parent and child “type” of relationship:
[S]omeone 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” ...[14]
The ground of family status may therefore embrace a range of circumstances where there are no blood or adoptive ties, but relationships of care, responsibility and commitment that resemble a parent-child relationship.
Example: When a single mother has difficulty caring for her two young children because of her economic circumstances, her cousins offer to take them in until she is back on her feet. When that couple attempts to find rental housing that will accommodate these two young children, a landlord turns them away on the basis that this is an “adult-oriented building”. The couple files a complaint of discrimination on the basis of family status.
The Commission has taken the position that the ground of family status includes care relationships between adult children and those who stand in parental relationship to them. For example, individuals providing eldercare for aging parents are protected from discrimination under the ground of family status. The protection extends to include anyone in a “parent type” of relationship with the caregiver. For example, a person providing eldercare to a grandparent who played a significant role in his or her upbringing may be protected under the ground of family status.
The ground of family status has been interpreted to prohibit differential treatment between various forms of families. For example, there is a lengthy history of differential treatment of families formed through adoption or fostering, compared to biological families. A Canadian Human Rights Tribunal found that citizenship rules that distinguished between biological and adoptive children discriminated on the basis of family status.[15]
Human rights protections for marital and family status include protection against discrimination based on the particular identity of a spouse or family member.[16] For example, it would be discriminatory for an employer to take negative actions towards an employee because of personal animosity towards that person’s child or parent.
Example: A man works in a family-run company with his brothers-in-law. When his daughter raises allegations of sexual abuse against one of her uncles, he is abruptly fired from his job. He successfully files a human rights complaint of discrimination based on family status.
It should be noted that, in some circumstances, Code protections related to the ground of family status overlap with those for the ground of sex, which includes pregnancy. Under this ground, a woman is protected against discrimination because she is, was or may become pregnant, or because she has had a baby. It includes the period following childbirth, including the post-delivery period and breastfeeding. Employers and service providers may, for example, have a duty to accommodate the needs of breastfeeding mothers. A full discussion of these issues is set out in the Commission’s Policy on Discrimination because of Pregnancy and Breastfeeding.
3. Alternative Grounds
There may be situations where a person who believes he or she has faced negative treatment because of his or her role as a caregiver does not fall within the grounds of family or marital status, but may file complaints based on other Code grounds.
3.1 Sex Discrimination
Caregiving has traditionally been regarded as a feminine role. Historically, it has been assumed that women are, and ought to be, primarily responsible for providing care for children, aging parents and relatives, and family members who are ill or have disabilities. Women and men who failed to conform to their assigned gender roles faced significant negativity and opposition.
Stereotypes and assumptions about caregiving roles, while less pervasive than in the past, remain powerful, to such an extent that issues about caregiving are frequently characterized as “women’s issues”. While gender roles are becoming more flexible, caregiving responsibilities remain highly gendered, with women providing the bulk of caregiving for children, aging parents or relatives, or family members with disabilities.[17] These caregiving responsibilities contribute significantly to women’s ongoing inequality, and in particular to their ability to obtain, maintain, and advance in employment. The status of women in employment, housing and services is fundamentally linked to their roles as primary caregivers. Men may also in some circumstances find themselves disadvantaged by these gender roles, in that, where they do take on primary caregiving responsibilities, these responsibilities are less likely to be recognized and supported.
The failure to recognize and accommodate caregiving responsibilities, because it is related to long-standing gender roles and assumptions, has an adverse impact on women and in some cases men, and may in appropriate circumstances be considered discrimination on the basis of sex, as an alternative to, or in addition to discrimination on the basis of family status.
Example: Because Eva is the only daughter in her family, her parents and brothers have always assumed that, as her parents age, Eva will take on the role of primary caregiver to one of her brothers, who has a significant cognitive disability. After Eva’s parents die, she finds it very difficult to attend to her caregiving responsibilities as well as her demanding job. She asks her employer for temporarily reduced work hours while she puts supports in place. Her manager tells her that he can reduce her work hours, but since work will no longer be her top priority, he will demote her to an entry-level position. Eva files a human rights complaint on the ground of sex discrimination.
3.2 Discrimination Because of Association
Section 12 provides that the Code is violated where discrimination occurs because of a relationship, association, or dealings with a person or persons identified by a prohibited ground of discrimination. A person who is denied a service or housing, for example, because of his or her relationship with a person who is identified by a Code ground can file a complaint of discrimination on the basis of association. This ground may extend to protect persons who are providing care for persons identified by the ground of disability.
Example: A man who lives with, and is providing care for, a relative with a mobility-related disability, is turned away by a landlord who fears that they might request accessibility-related upgrades to the apartment. The man files a complaint of discrimination on the basis of association with a person with a disability.
[10] Vanier Institute of the Family, Profiling Canada’s Families III (2004): 18, online: Vanier Institute of the Family www.vifamily.ca.
[11] or a more detailed discussion of demographic trends relating to families, see the Ontario Human Rights Commission’s Discussion Paper, Human Rights & the Family in Ontario (2005), online: Ontario Human Rights Commission www.ohrc.on.ca.
[12] See, for example, M.D.R. v. Ontario (Deputy Registrar General), [2006] O.J. No. 2268 at paras. 111-15 (Ont. Sup. C.J.) in which the Court held that provisions of the Vital Statistics Act that prevented the inclusion of both lesbian parents on the Statement of Live Birth of a child conceived through artificial insemination violated the equality provisions of the Charter with respect to sex and sexual orientation. In a very recent decision by the Ontario Court of Appeal, A.A. v. B.B., [2007] O.J. No. 2 at para. 7 (Ont. C.A.), the Court ruled that three legal parents could be recognized under the Children’s Law Reform Act: a lesbian couple who were the child’s guardians, and the child’s biological father.
[13] Moffatt v. Kinark Child and Family Services (No. 4) (1998), 35 C.H.R.R. D/205 at para. 12 (Ont. Bd. Inq.) dealt with discrimination against a gay foster parent. Discrimination against adoptive families was dealt with in McKenna v. Canada (Secretary of State, (1993), 22 C.H.R.R. D/486 (CHRT) and Pringle v. Alberta (Municipal Affairs) (2003), 48 C.H.R.R. C/111 (Alta. H.R.P.).
[14] York Condominium Corp. No. 216 v. Dudnik (No. 2) (1990), 12 C.H.R.R. D/325 at para. 165 (Ont. Bd. Inq.), aff’d (1991), 14 C.H.R.R. D/406 (Ont. Div. Ct.).
[15] Canada (Attorney General) v. McKenna (1993), 22 C.H.R.R. D/486 at para. 58 (C.H.R.T.).
[16] B. v. Ontario (Human Rights Commission), [2002] 3 S.C.R. 403 at para. 58.
[17] N. Zukewich, “Únpaid Informal Caregiving” Canadian Social Trends (Autumn 2003) 14; J.A. Frederick and J.E. Fast, “Eldercare in Canada: Who Does How Much?”, Canadian Social Trends (Autumn 1999) 26; D. Cheal, M. Luxton and F. Woolley, How Families Cope and Why Policy-Makers Need to Know (Canadian Policy Research Network, 1998) at 30.