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Policy and guidelines on discrimination because of family status

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Approved by the Commission: March 28, 2007
Available in various accessible formats

Please Note

This Policy contains the Commission’s interpretation of provisions of the Ontario Human Rights Code relating to family status. It is subject to decisions of the Superior Courts interpreting the Human Rights Code. Any questions regarding this Policy should be directed to the staff of the Ontario Human Rights Commission.

Commission policies and guidelines set standards for how individuals, employers, service providers and policy makers should act to ensure compliance with the Code. They are important because they represent the Commission’s interpretation of the Code at the time of publication. While they are not binding on the human rights tribunal or on courts, they are often given great deference[1], applied to the facts of the case before the court or tribunal, and quoted in the decisions of these bodies.

I. Introduction

The Ontario Human Rights Code (“the Code”) states that it is public policy in Ontario to recognize the inherent dignity and worth of every person and to provide for equal rights and opportunities without discrimination. The provisions of the Code are aimed at creating a climate of understanding and mutual respect for the dignity and worth of each person, so that each person feels a part of the community and feels able to contribute to the community.

Every person in Ontario has a right to be free from discrimination and harassment on the basis of family status, in the social areas of employment, services, goods, facilities, housing accommodation, contracts, and membership in trade and vocational associations.

The ground of family status has been part of the Code since 1982, but has received relatively little analysis or attention, either in Ontario or in other Canadian jurisdictions. This is the first time the human rights issues related to family status have been explored in depth. It is to be expected that the understanding and public awareness of this ground of the Code will continue to develop over time.

The ground of family status, by its nature, raises complex and difficult issues related to the treatment of caregivers[2] in our society. The Supreme Court of Canada has stated, “That those who bear children and benefit society as a whole thereby should not be economically or socially disadvantaged seems to bespeak the obvious”.[3] The results of the Ontario Human Rights Commission’s (“the Commission”) research and consultation on family status indicate that, on the contrary, caregivers continue to face significant and ongoing disadvantage because of their role. It is the Commission’s hope that this Policy will provide a meaningful step towards addressing this issue.

This Policy is based on extensive research and consultation on issues related to family status. In May 2005, the Commission published a Discussion Paper, Human Rights & the Family in Ontario, which outlined key issues and invited submissions from interested parties. At the same time, the Commission distributed a questionnaire and posted it on its website, inviting individual Ontarians to share their stories of how their family status had impacted on their access to housing, employment and services. The Commission heard from approximately 120 organizations and individuals, including employers, unions, housing providers, government, academics, community organizations, legal clinics, service providers, professional organizations, and advocacy groups. During the fall of 2005, the Commission held four roundtables on specific issues of concern: issues affecting older Ontarians, the definition of family status, employment, and housing. The Commission is simultaneously releasing a Consultation Report, The Cost of Caring. The Report examines the broad range of issues impacting on the ability of families with caregiving responsibilities to equally access and benefit from employment, housing and services, and outlines roles and responsibilities for government, institutions, and the Commission itself.

Several themes emerged from this consultation, and have shaped this Policy:

  • There is a profound lack of awareness among employers, housing providers, service providers, community advocates and the general public regarding rights and responsibilities under the Code with respect to family status.
  • Persons providing care for family members face a range of serious systemic barriers to full participation in employment, housing and services, and experience ongoing disadvantage because of their family status. Employment, housing and services have often not been designed in ways that include persons with caregiving responsibilities.
  • The existence and nature of these barriers are not widely understood, and issues related to family status are often viewed as ‘personal problems’ rather than human rights concerns.
  • There are many different kinds of families in today’s Ontario. Steps must be taken to ensure that all of these families are included and treated with respect and dignity.
  • Each person’s experience of his or her family status will be significantly affected by their race, sex, marital status, sexual orientation, age, creed, and whether that individual or a family member has a disability.
  • Negative attitudes and stereotypes persist about the character and capabilities of persons based on certain types of family status, such as, for example, lone parents.
  • Employers, housing providers, service providers, government and individuals must work together to remove existing barriers for persons identified by family status.

This Policy sets out the Commission’s position on discrimination on the basis of family status as it relates to the provisions of the Code. It deals only with issues that fall within the Code and that could be the subject of a human rights complaint. At the same time, the Policy interprets the protections of the Code in a broad and purposive manner, consistent with the principle that the quasi-constitutional status of the Code requires that it be given a liberal interpretation that best ensures its anti-discriminatory goals are attained. The Commission’s Consultation Report contains a broader examination of social policy issues affecting persons disadvantaged by family status. In addition to this Policy, the Commission will continue to engage in promotion and advancement initiatives to address the broad systemic context of discrimination based on family status.

Commission policy statements contribute to creating a culture of human rights in Ontario. This Policy is intended to help the public understand the Code protections against discrimination and harassment because of family status. It is also meant to assist individuals, employers, organizations, providers of services and housing, and policy-makers in understanding their responsibilities and acting appropriately to ensure compliance with the Code.

The analysis and examples used in the Policy are based on the Commission’s research on discrimination on the basis of family status, international standards, complaints that have come before the Commission, tribunal and court decisions, and the input of individuals and organizations in the Commission’s consultation process.

[1] In Quesnel v. London Educational Health Centre (1995), 28 C.H.R.R. D/474 at para. 53 (Ont. Bd. Inq.), the Board of Inquiry applied the United States Supreme Court’s decision in Griggs v. Duke Power Co., 401 U.S. 424 (4th Cir. 1971) to conclude that Commission policy statements should be given “great deference” if they are consistent with Code values and are formed in a way that is consistent with the legislative history of the Code itself.  This latter requirement was interpreted to mean that they were formed through a process of public consultation.
[2] For the purposes of this Policy, the term “caregivers” refers to those persons who provide informal, unpaid assistance for the physical and emotional needs of another person who is reliant on them for that assistance. Generally, the recipient of care is a child, an older person, or a person with a disability. Caregiving can include a range of activities beyond direct physical care, such as advocacy on behalf of the care recipient, locating and organizing services, taking care recipients to appointments, carrying out errands, and monitoring needs or well-being. Persons identified by family status (that is, persons in a parent-child relationship) will generally pass through stages where they are and are not caregivers to their parents or children. Persons not identified by family status (such as, for example, siblings) may also have caregiving responsibilities in some circumstances.
[3] Brooks v. Canada Safeway Ltd, [1989] 1 S.C.R. 1219 at para. 40.

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