Section 1 of the Code prohibits discrimination on the basis of family status in services, goods and facilities. This includes, but is not limited to, educational institutions, hospitals, public transit services, social services, public places like malls and parks, and stores and restaurants.
Discrimination on the basis of family status in the area of services often arises because of negative perceptions regarding children, or regarding specific types of families. For example, female-headed lone parent families are heavily stigmatized, particularly when they are racialized or Aboriginal, or are in receipt of social assistance. These families may find themselves subjected to unwarranted scrutiny, denied services, or subjected to harassment when seeking services.
Example: A social service provider tells an Aboriginal lone mother that she is just having babies to get money from the system, and subjects her to an extra audit of her compliance with program rules.
Similarly, some families may have difficulty in obtaining recognition from service providers that they are “real” families. This is particularly true for foster families and LGBT families. Services ordinarily available to families may be denied to them or only accessed with difficulty.
Example: A gay man and his partner have cared for his mother for years. When she is in the final stages of her illness, she is admitted to the hospital. Due to the hospital rules, her son’s partner can only visit her by pretending to be another of her sons.
One prevalent source of discrimination against families is the failure to design services in ways that include them.
Example: A law school student’s mother is diagnosed with cancer. The law school agrees to provide a short-term leave of absence; however, when the leave is over, and the mother is still ill, the student is forced to drop out of school because part-time studies are not available.
Service providers can take steps to make their services more inclusive of families. Public facilities should install change tables in washrooms, both male and female, so that parents are not left in an awkward dilemma when taking their infants for an outing. Education providers can provide options for day or evening programs, leave of absence options, and quality distance education alternatives. Recreational facilities can provide family changerooms.
Inclusive design should take into account that families may include persons who have disabilities, are LGBT, or are from various cultural communities.
Example: A parent with a disability is reliant on specialized transit services for transportation. Needing to visit a health care provider, she arranges to drop her child off at a childcare centre. However, because the specialized transit provider does not permit her to travel with her child, she finds she has no means of accessing either the childcare service or her healthcare appointment.
Families with young children, like persons with disabilities and older persons, face challenges from physically inaccessible buildings, and would benefit from barrier removal and inclusive design. Families with young children in strollers, for example, will have difficulty in accessing buildings with many stairs and heavy doors. Rules that ban or restrict stroller access pose barriers to families, particularly for parents who have disabilities and cannot carry their small children. Where, as a result of inaccessible design or stroller bans, persons with small children are not able to access a service, this may amount to a violation of the Code.
Like employers, service providers should take steps to provide accommodation for service recipients who have caregiving needs.
Example: When a student’s child falls gravely ill just before a final examination, the education provider agrees to defer the examination until the child has recovered.
Governments have a significant role to play in ensuring the accessibility of their services, regardless of family status. The Supreme Court of Canada has stated that, when governments provide benefits to the general population, they have an obligation to take positive steps to ensure that members of disadvantaged groups benefit equally from those services, subject of course to the undue hardship standard.[71]
Example: A government social assistance program requires recipients to work, study or do volunteer work. Many recipients are lone parents and have significant childcare responsibilities. The program providers are required to ensure that appropriate childcare supports are available or that work, study or volunteer requirements are compatible with the recipient’s caregiving needs.
The Code prohibits discrimination in services on the basis of age only for persons aged 18 or older. In other words, service providers are entitled, under the Code, to restrict the services they provide to minors. However, a recent Tribunal decision has indicated that this provision of the Code can be an unjustifiable abridgement of the equality rights of children under the Charter of Rights and Freedoms.[72]
In any case, restrictions on services to children that have the effect of restricting the access to services for their parents may discriminate on the basis of family status. For example, in a British Columbia case, a restaurant that refused to allow customers with children to use its services, on the basis that other customers did not like being disturbed when children made a fuss, was found to have discriminated on the basis of family status.[73] Negative attitudes or intolerance towards children may lead to discriminatory behaviour towards families. It is the Commission’s position that services that bar access to families with children under a certain age may be violating the Code.
There are, of course, valid reasons for treating minors differently than adults in some circumstances. It is legitimate to take steps to ensure that children do not have access to services or facilities that would compromise their safety or wellbeing. Where the health, safety or wellbeing of children would be put at risk, it is likely that a service-provider will have a bona fide reason for denying access to children. However, arbitrary age restrictions should not be used to enforce mere preferences for “child-free” spaces.
In some cases, behaviour that is typically associated with children may be incompatible with the nature of a particular service. For example, loud and persistent crying during a theatrical performance may substantially interfere with the ability of other patrons to hear and enjoy the performance. Children, like adults, vary in their behaviour, and judgements about children’s behaviour cannot necessarily be made beforehand. Rather than using age-based restrictions, it may be more appropriate to specify the essential requirements for accessing the service in question: those who cannot meet those essential requirements may be excluded, regardless of their age.
Example: A community swimming pool, rather than designating times for “adult swimming” and “family swimming”, designates times for “lane swimming” and “free swimming”. Children who are proficient swimmers, and adults who are boisterous, will each have access to the appropriate services.
The Code sets out specific exceptions where services may be denied on the basis of family status. Section 20(3) allows recreational facilities to restrict or qualify access to services or facilities and to give preference in membership dues or fees on the basis of marital and family status. This defence would likely protect a single’s club, for example. As well, section 18 permits religious, philanthropic, educational, fraternal or social institutions or organizations that are primarily engaged in serving the interests of persons identified by a prohibited ground to restrict membership or participation to those who are similarly identified.
[71] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 79.
[72] Arzem v. Ontario (Ministry of Community and Social Services) (No. 6) (2006), 56 C.H.R.R. D/426 at para. 157 (HRTO).
[73] Micallef v. Glacier Park Lodge Ltd. (1998), 33 C.H.R.R. D/249 at para. 37 (B.C.H.R.T.).