Section 1 of the Code prohibits discrimination based on family status in the social areas of services, goods and facilities. This is an extremely broad social area, covering everything from corner stores and shopping malls, to education, health services and public transit. The issues are therefore also extremely diverse. However, very little attention has been paid to these issues. The Commission receives only a handful of complaints each year related to family status and services, and outside of a few specific issues, there is a similar paucity of academic or social science research on human rights concerns related to family status and services.
Physical Accessibility
As the Commission has noted in other documents, families with very young children may face barriers when attempting to physically access services such as restaurants, theatres, and public transit.[156] Heavy doors, numerous steps, and narrow aisles may pose significant challenges for families with young children who are attempting to access a facility. Some facilities have adopted no-stroller policies, making access difficult or impossible for families with young children.
Human rights law affirms the principle that society should be structured and designed for inclusiveness. Service providers have a duty to provide equal access without discrimination on the basis of family status. Where services are inaccessible to families with young children, service providers are vulnerable to a complaint of discrimination under the Code.
If found in breach, a business would have to demonstrate as a defence to such a complaint that providing access or accommodating services would amount to undue hardship with regards to cost, outside sources of funding, or health and safety factors.
Universal Design and Family Friendly Services
As with employers and housing providers, service providers should, where possible, consider the needs of individuals with caregiving responsibilities when designing programs, procedures, and facilities. Restaurants, for example, can ensure that high-chairs are available for the use of children, and public washrooms include family facilities and change tables for children. In the education context, as with employment, the policies and procedures surrounding educational services may not take into account the caregiving responsibilities of students. Given educational trends and demographic shifts, it is no longer uncommon for students to be juggling educational and caregiving responsibilities. Educational institutions have been evolving to meet these changes. Some educational institutions, for example, have developed formal parental leave policies. However, educational structures have not necessarily caught up with these changes, and barriers may remain.
For example, at the post-secondary level, students who are have significant caregiving responsibilities, such as parents of young children, are likely to gravitate to part-time studies, where these are available. However, part-time students face a number of disadvantages. For example, part-time students are often not eligible for student health plans. As well, scholarships, bursaries, internships, campus jobs and subsidized housing at both the graduate and undergraduate levels are designed mainly for students who undertake full-time studies.[157] In terms of scholarships, the Commission’s Policy on Scholarships and Awards notes that such awards are significant, not only in terms of financial access to education, but also as a means to access employment or post-graduate training. The Policy notes that:
[S]cholarships and awards should be based on factors such as merit, personal financial need, course specialization, or recognition of special contributions to academic or extracurricular life. Exclusionary scholarships or awards, on the other hand, use discriminatory criteria to assess eligibility. These criteria affect access to educational opportunities, either directly or indirectly.[158]
Education providers should therefore take care that eligibility criteria do not negatively impact students on the basis of family status.
Service providers should also take care to take into account the diversity of Canadian family structures. For example, a British Columbia Human Rights Tribunal found that the B.C. government’s birth registration process had not kept pace with changes in reproductive technology, and that it had discriminated on the basis of sex, sexual orientation and family status when it refused to register the same-sex partner of a birth mother as a parent of the child.[159] As well, negative stereotypes of single mothers from racialized communities may have a significant impact on how a range of services, from education, to banking, to policing, are provided.
Similarly, although same-sex couples are included in the Ontario Works Act, 1997 on the same basis as opposite-sex couples, limited information exists regarding how same-sex couples will be treated, which may affect the implementation of OW policies in practice. For example, the OW policy on family support focuses on women as single parents seeking support and refers to those needing to be found to provide support as “fathers”.[160] Gay and/or lesbian parents seeking support from former same-sex spouses are not mentioned. Nor are situations where children are residing with their fathers, and support is being sought from their mothers. If such situations occur, OW policies appear unclear as to how they will be addressed.
What barriers exist for families in accessing services?
What steps can service providers take to ensure that their policies, procedures and programs do not exclude or negatively impact on families?
Duty to Accommodate in Services
Even where services have been designed to support the needs of families, some individual accommodation needs may remain. Service providers have the same duty as employers to provide accommodation to the point of undue hardship for needs related to family status. For example, in an educational context, where a significant conflict arises between a student’s caregiving responsibilities and educational requirements, the education provider may have a duty to consider possible accommodations of family-related needs. Where a child becomes ill during an examination period, or an out-of-town practicum placement significantly interferes with a student’s caregiving responsibilities for a child or an aging parent, the education provider may be required to consider appropriate accommodations.
Issues of accommodation of child care needs have arisen in the context of social assistance programs, where participation requirements for OW may conflict with child care responsibilities. As stated in OW’s policy directive on participation requirements, sole support parents are required to participate in employment activities when their youngest child enters full time or part time publicly funded education.[161] Although it is required that employment activities be scheduled during school hours, it is not always possible. For example, employment activities may end after school ends or it may not be possible for parents to get to school in time to pick up their children if their training/programme is a long distance away. In these situations, not having access to child care can lead to many problems. A study conducted by Toronto Social Services in 2003, which was aimed at examining the experiences of single parents on OW, revealed that 64 percent of sole support parents stated that lack of appropriate and/or affordable child care was an obstacle to finding employment.[162] For sole support parents who had access to formal care, 20 percent felt that the hours of operation were incompatible with their schedule, 20 percent had concerns surrounding the quality of the program, 17 percent felt that the cost of care was too expensive, and 15 percent felt child care lacked reliability.[163]
Ultimately, parents receiving support from OW are considered responsible for finding adequate child care for their children, although some assistance is provided. For example, several municipalities offer some child care subsidies. In Toronto, individuals participating in OW who require child care are eligible for child care assistance if this assistance is necessary for them to adhere to their individual service plan.[164] Clients who request this assistance through OW receive the same service as clients who apply through normal Children’s Services intake, which consists of either being placed on a subsidy waiting list or placement in subsidized care. In addition, parents receiving social assistance are given priority status to subsidized child care while they upgrade and find employment.[165] The Toronto programme assists with access to formal and informal child care.
Although the existence of such programmes can help sole support parents with accessing child care, the implementation and structure of such programmes may be problematic. For example, under the Toronto programme described above, informal care is provided on a temporary basis. These regulations become problematic for sole support parents when formal child care is not available and the period of the provision of informal child care ends. Parents may find themselves without a child care provider and thus, may be forced to withdraw from an employment activity or a job.
Furthermore, issues regarding child care that is currently available or provided may also arise. Although sole support parents on OW have priority access, there is a waitlist for subsidized child care. During the waiting period, lack of child care limits parents’ ability to work or participate in employment activities, which in turn can affect their receipt of financial assistance. Another issue that arises is that once employment is secured, sole support parents lose their space and child care is stopped because it is assumed that they no longer need subsidized care. In order to continue receiving subsidized care, parents must go on another waiting list and thus must begin the process over again.[166] Finally, child care costs may be a barrier to employment or OW participation. [167]
This raises the following question: where a parent is required to comply with certain requirements in order to access a service or benefit, and those requirements do not take into account that parent’s caregiving responsibilities, is the duty to accommodate is engaged? For example, if a parent with young school-aged children is required to engage in full-time employment activities as a condition of participation in the Ontario Works program, but is unable to access after-school childcare, does the service provider have a duty to accommodate? If so, what are the roles and responsibilities of the various parties? What are the appropriate accommodations?
Are there other circumstances in which the issue of a service provider’s duty to accommodate for issues related to family status arises?
In what circumstances does a service provider have a duty to accommodate on the basis of family status? What is the extent of that duty?
Customer Preferences, Age-Based Restrictions, and Children’s Behaviour
Children’s typical behaviour should not, by itself, be used as a justification for denying services to persons identified by family status. However, there may be circumstances where behaviour normally associated with children may be incompatible with the nature of the service being offered. For example, loud and persistent children’s crying during a theatrical performance may interfere with the ability of other patrons to hear and enjoy the performance. It may therefore be a bona fide requirement that patrons be quiet during the performance, and that crying or noisy children be removed. Similarly, in some restaurants, it may be inappropriate for children to wander throughout the premises. It may therefore be appropriate in such circumstances to require that patrons remain in their seats while at the restaurant.
Concerns about children’s behaviour sometimes lead to age-based restrictions on accessing services. For example, service providers may implement formal policies denying access to individuals who are under a certain age. Since children are as variable in their behaviour as adults, it may be problematic to use age-based restrictions to exclude children from a service on the grounds that their presence is in itself incompatible with the service being offered. It may be more appropriate to specify the essential requirements for accessing the service in question: those who cannot meet these essential requirements (whatever their age) may be excluded. For example, it is more appropriate for a swimming pool to designate times and spaces for “lane swimming” and “free swimming”, rather than “adult-only swimming” and “family swimming”, since there will be some children who are proficient swimmers and some adults who are boisterous. It will also generally be more appropriate to specify appropriate behaviours (“Patrons must remain seated at all times”) rather than imposing age-based restrictions (“Children under the age of three will not be admitted”).
There are, of course, services the content of which is simply inappropriate for children, such as, for example, adult-rated movies, and in such cases a rule excluding children under a particular age will be justifiable.
The argument has been made, as with “adult lifestyle” housing, that adults should have the option of “child-free” or adult-only spaces, where adults will not have to contend with the noises or activities associated with children. As noted above, there will be circumstances where quietness or stillness will be a bona fide requirement for accessing a service, so that children who are boisterous or noisy may be excluded. Section 20(3) allows recreational facilities to restrict or qualify access to services or facilities and to give preferences in membership dues or fees on the basis of marital and family status. This defence would likely protect a singles’ club, for example. However, the Code has generally not been interpreted to defer to customer preferences. For example, the Commission has taken the position that complaints from other persons will not justify interference with a woman’s right to breastfeed.[168] A preference on the part of some patrons for avoiding the company of children will not justify interference with the right of persons identified by family status to equally access services, goods and facilities. For example, in a British Columbia case, a vacationing family with three children was denied access to the main dining room in their vacation lodge, and directed instead to the cafeteria, on the basis that customers in the dining room did not like being disturbed when children make a fuss. A Human Right Tribunal found that discrimination on the basis of family status had occurred, as the actions of the respondents imposed a disadvantage on the complainant and his family members based solely on his association with his children. The Tribunal stated:
Behaviour that goes beyond a reasonable limit can be dealt with on a case-by-case basis, having regard to all the circumstances. While many families may prefer to eat in the cafeteria so that their children can run around, some parents may reject the cafeteria for the very same reason... Information about these options can certainly be provided by the respondent; however, the choice must be left up to the parents....The fact that some diners might be disturbed by the presence of young children is not a bona fide and reasonable justification for a policy which attempts to dissuade families from eating in the dining room. [169]
What policy position should the Commission take with respect to age restrictions on access to services?
What policy position should the Commission take with respect to children’s behaviour and access to services?
What policy position should the Commission take with respect to customer preferences for “child-free” or adult-only spaces?
Are there human rights issues related to family status that the Commission has not identified and that it should address?
[156] See Ontario Human Rights Commission, Discussion Paper on Accessible Transit Services, (January 2001); Human Rights and Public Transit Services in Ontario: Consultation Report (March 2002); and Dining Out Accessibly: An Accessibility Audit of Select Restaurant Chains in Ontario (April 2004), online: Ontario Human Rights Commission <www.ohrc.on.ca>.
[157] The Commission discussed its concerns with the impact of policies regarding part-time studies on students with disabilities in The Opportunity to Succeed: Achieving Barrier-Free Education for Students with Disabilities (July 2003), online: Ontario Human Rights Commission, <www.ohrc.on.ca>
[158] Ontario Human Rights Commission, Policy on Scholarships and Awards, (July 1997) at Part 2, online: Ontario Human Rights Commission < www.ohrc.on.ca>.
[159] Gill v. British Columbia (Ministry of Health) (No. 1), (2001), 40 C.H.R.R. D/321 (BCHRT)
[160] Directive #23.0: Family Support, (September 2001), Ontario Works, Ministry of Community and Social Services, www.cfcs.gov.on.ca
[161] Directive #6.0: Setting Participation Requirements (September 2001), Ontario Works, Ministry of Community and Social Services,online:<www.cfcs.gov.on.ca>
[162] Toronto Community and Neighbourhood Services, Social Assistance and Social Inclusion: Findings from Toronto Social Services’ 2003 survey of Single Parents on Ontario Works, (2003), online:<www.toronto.ca/socialservices/index.htm> .
[163] Ibid
[164] Ontario Works Child Care Service Delivery Protocol, (1999), City of Toronto, online: <www.city.toronto.on.ca/socialservices>
[165] D. Matthews, Review of Employment Assistance Programs in Ontario Works & Ontario Disability Support Program ( Ministry of Community and Social Services, 2004).
[166] Ibid
[167] Daily Bread Food Bank, Ontario Works? (2004), online: < www.dailybread.ca>
[168] Supra, note 4.
[169] Micallef v. Glacier Park Lodge Ltd., (1998), 33 C.H.R.R. D/249 (BCHRT)