Canada: Family Obligations: Accommodating Employees’ Childcare And Eldercare Responsibilities

Last Updated: October 11 2012
Article by Kristin R. Taylor

Discrimination based on an employee's family status has long been prohibited by human rights legislation in Canadian jurisdictions. "Family status" is universally defined as the status of being in a parent-child relationship applying to both childcare and eldercare. Despite the universality of this protection, there has been great uncertainty as to what it means. For many years, family status protection simply wasn't used by employees. Its scope was thought to be limited to protecting working parents and primarily working mothers against discrimination in hiring and promotion. However, the last decade has seen an increase in employees demanding accommodation based on their childcare and eldercare responsibilities and the development of a series of tests for employers to apply when assessing their obligations.

The first noteworthy test was developed by the British Columbia Court of Appeal in a decision known as Campbell River.1 In this case, an employee challenged her employer's change to her hours of work that were designed to better meet the needs of the employer's clientele. She alleged that the change would interfere with her after-school care obligations to her special needs son. The British Columbia Court of Appeal was mindful of the inherent conflicts in every employee's family obligations. Accordingly, it established a test that required the employee to prove that his or her obligations amounted to something more than the usual parenting requirements. The Court decided that there are three elements an employee must prove to trigger the duty to accommodate on the part of the employer: (1) a change in a term or condition of employment imposed by the employer, which resulted in (2) a serious interference with (3) a substantial parental duty or obligation of the employee. In the case at hand, the employee's family circumstances met this test.

A number of decisions thereafter applied the Campbell River test and dismissed employee complaints where there was no suggestion that their childcare needs were beyond the ordinary demands involved in balancing appropriate childcare and employment obligations. A number of other decisions adapted the Campbell River test to eliminate the first element on the basis that changes that originate with the employee's family—not just changes imposed by the employer—might also require accommodation.

After this tinkering with the Campbell River test, the Canadian Human Rights Tribunal rejected it entirely.2 In a series of decisions, the Tribunal found the Campbell River test to be too restrictive and unfair in imposing a higher threshold to demonstrate discrimination based on family status than is required to prove any other ground of discrimination. By rejecting the need for an employee to prove a significant interference with a substantial obligation, employers would have to accommodate all ordinary parenting or eldercare obligations. Given the limits to daycare and the school day relative to the workday, these cases had the potential to create havoc for employers.

More recently, in August 2012, the Human Rights Tribunal of Ontario ("HRTO") has weighed in with a new test that purports not to apply a higher standard to prove family status discrimination, but draws a distinction between childcare and eldercare preferences and needs. The case is Devaney v. ZRV Holdings Limited3 and it involves an employee's responsibilities for the care of his elderly mother. The employee lived with his mother whose mobility was deteriorating, thereby placing more and more demands on him. He maintained that much of his job as an architect and project manager could be done remotely from home and outside regular business hours. However, his employer insisted that he needed to be at work from 8:30 a.m. to 5 p.m. every day. He did not show up for work for these hours and eventually his employment was terminated as a result.

The HRTO, after considering the various tests, adopted a new one as follows:

. . . the applicant must establish that the respondents' attendance requirements had an adverse impact on the applicant because of absences that were required as a result of the applicant's responsibilities as his mother's primary caregiver. I say "required" because I agree with the respondents that if it is the caregiver's choice, rather than family responsibilities, that preclude the caregiver from meeting his or her employer's attendance requirements, a prima facie case of discrimination on the basis of family status is not established. . . . This approach is also consistent with the well-established principle that the Code requires the accommodation of Code-related needs, not preferences.4

The HRTO has drawn an important distinction between a choice and a requirement. Applied to the usual working hours versus childcare scenario, that should mean that an employee's choice to use a daycare that is only open until 6:00 p.m. can be challenged if working hours extend beyond that point. Presumably the employee would have to prove that no other childcare arrangement could be secured other than the one that conflicts with his or her working hours. This will allow employers to push back where genuine business requirements mean that working hours cannot be modified to address every employee's individual childcare preferences.

What does this mean for employers? It largely means continued uncertainty. The HRTO analysis certainly is preferable for employers to that put forward by the Canadian Human Rights Tribunal. Although the Campbell River decision of the BC Court of Appeal remains the highest level court decision, it does not appear to have had much influence on human rights tribunals beneath it. For employers facing requests for accommodation by employees with family obligations, the best advice is to fully consider those obligations. Questions should be asked to probe an employee's choice and preference as opposed to a hard and fast requirement that must be met. Questions should also be asked about the employee's efforts to make arrangements that would allow regular working hours to be performed. If the employee's request really amounts to a preference and there isn't a substantial parental obligation at issue, then there should not be a concern as to family status discrimination or a duty to accommodate.


1 Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society, [2004] C.H.R.D. No. 33 [Campbell River].

2 See Johnstone and Canadian Human Rights Commission v. Canada Border Services, [2010] CHRT No. 20; Richards and Canadian Human Rights Commission v. Canadian National Railway, [2010] C.H.R.D. No. 24; Seeley and Canadian Human Rights Commission v. Canadian National Railway, [2010] C.H.R.D. No. 23; and Whyte and Canadian Human Rights Commission v. Canadian National Railway, [2010] C.H.R.D. No. 22.

3 2012 HRTO 1590 (CanLII).

4 Ibid. at para. 117.

About Fraser Milner Casgrain LLP (FMC)

FMC is one of Canada's leading business and litigation law firms with more than 500 lawyers in six full-service offices located in the country's key business centres. We focus on providing outstanding service and value to our clients, and we strive to excel as a workplace of choice for our people. Regardless of where you choose to do business in Canada, our strong team of professionals possess knowledge and expertise on regional, national and cross-border matters. FMC's well-earned reputation for consistently delivering the highest quality legal services and counsel to our clients is complemented by an ongoing commitment to diversity and inclusion to broaden our insight and perspective on our clients' needs. Visit:

The content of this article is intende d to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
25 Nov 2016, Seminar, Toronto, Canada

On Thursday, September 22, 2016, Dentons hosted a panel discussion about the management of liabilities and risks associated with environmental crises, including potential liabilities for directors and officers and provided insight into risk and liability techniques associated with environmental crisis management.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.