Approved by the Commission: March 30, 2005
The Ontario Human Rights Commission (“the Commission”) believes that this is an opportune moment to reflect on, and raise awareness about, human rights issues surrounding relationships, particularly family status.
Relatively little attention has been paid in recent years to human rights protections related to family status under the Ontario Human Rights Code (“the Code”). Indeed, issues related to family status are often not conceptualized as human rights issues at all. This ground raises issues of how society values, includes and accommodates our relationships, and of the systemic disadvantage that may accrue to them. An examination of family status reveals the far-reaching implications of our relationships on access to housing, employment, and services.
Much public attention has been given in recent years to the intensifying “struggle to juggle” as individuals strive to meet their commitments to both their employers and their families. “Work-life balance” and “the flexible workplace” have become common catchphrases, and governments have begun to take some steps to protect employees with caregiving responsibilities. Despite the extensive discussion of these issues, they have generally not been perceived as human rights issues. The Commission’s attention was drawn again to this issue by its public consultations on age discrimination in 2000. At that time, the Commission heard about the growing need for elder care, much of the responsibility for which is falling to family members, and the implications for both those receiving and those providing such care. As a result, the Commission committed to develop a policy statement on elder care that identified related human rights issues, as well as to consider complaints where employees who are caring for aging or ailing parents, spouses or same-sex partners face discrimination on the grounds of family, marital or same-sex partnership status.
Recently, caselaw on pregnancy and breastfeeding, as well as the Commission’s policy and public education work in this area, has highlighted the implications for women of their roles as caregivers, and the responsibility of employers, landlords and service providers to respect the importance of the mother and child relationship. A consideration of the ground of family status is a logical extension of this work.
Recent years have seen increasing diversity in the nature of the Canadian family. The numbers of single parent and blended families continue to grow. It has become increasingly rare for families to include a member who is a full-time caregiver: in most families with children, all adults are working outside the home. As well, it is only in recent years that any recognition has been given to families headed by same-sex parents. Employers, landlords and service providers have not necessarily adjusted their policies, programs and practices to deal with these new realities. Persons belonging to non-traditional families may find themselves excluded or disadvantaged in seeking employment, housing or services.
The Commission is concerned by reports of widespread discrimination in access to rental housing. The Commission continues to be concerned that families with young children may be marginalized in the rental housing market, particularly where family status intersects with marital status, receipt of public assistance, or the race-related grounds of the Code. The consequences of this marginalization may be dire, and constitute a serious human rights issue.
There may be other issues related to family status that the Commission has not yet identified. The Commission views this Discussion Paper as a first step in its examination of human rights and family status and as an opportunity to expand awareness of human rights protections based on family status. The Commission wishes to open discussion and explore directions for strengthening human rights protections based on family status, and welcomes feedback and discussion on these issues from the community. The Commission intends to develop a policy statement on discrimination based on family status. Commission policy statements set standards for how individuals, employers, service providers and policy makers should act to ensure compliance with the Code. They are important because they provide information about the Commission’s interpretation of the Code at the time of publication. While they are not binding on the human rights tribunal or the courts, they are often given great deference, applied to the facts of the case before the court or tribunal, and quoted in the decisions of these bodies.
 R.S.O. 1990, c. H.9
 The terms “same-sex partners” and “same-sex partnership status” have recently been removed from the Code. Until recently, the Code defined “spouse” as “the person to whom a person of the opposite sex is married or with whom the person is living in a conjugal relationship outside marriage”, and the definition of “marital status” was “the status of being married, single, widowed, divorced or separated and includes the status of living with a person of the opposite sex in a conjugal relationship outside of marriage” (s. 10(1)). Following the 1999 decision of the Supreme Court of Canada in M. v. H.  2 S.C.R. 3, which struck down the opposite sex definition of “spouse” in the Family Law Act as unconstitutional, the Code was amended to add protection for “same-sex partnership status”. The Code defined a “same-sex partner” as “the person with whom a person of the same sex is living in a conjugal relationship outside of marriage”. In 2005, the Code was again amended by Bill 171 (S.O. 2005, c.5). The terms “same-sex partnership status” and “same-sex partner” were struck from the Code. The definitions of “marital status” and “spouse” were amended by striking out the phrase “a person of the opposite sex” and replacing it with “a person”. Except where noted, this Paper uses the current definitions of “marital status” and “spouse”.
 Ontario Human Rights Commission, A Time for Action: Advancing Human Rights for Older Ontarians (2001) online: Ontario Human Rights Commission <www.ohrc.on.ca>.
 Ontario Human Rights Commission, Policy on Discrimination Because of Pregnancy and Breastfeeding (2001), online: Ontario Human Rights Commission <www.ohrc.on.ca>.