Childcare is an expensive, and it’s something many Canadian families struggle with, both in terms of affordability and availability. What is not often discussed is the challenges faced by parents who are unable to find daycare for their children.  A recent case from the Ontario Superior Court of Justice looked at whether a parent was discriminated against by her employer for lacking child-care.

The background

The employee began working for the employer in May 2010. Her last day was on December 13, 2013, which was the day she started maternity leave prior to the birth of her third child. Her statutory entitlement to maternity leave was 12 months, though through text messages she arranged to plan her return for January 2015. The employer sent the employee a written offer of employment on January 6, 2015, noting the work day started at 8:30am. This was not included in her previous contract.

Prior to her maternity leave the employer had occasionally spoken to the employee about her arrival time. She was not able to arrive at work before 8:30 due to her family responsibilities at home. However, she was given a cell phone and managed to have meetings from home on occasion. The employee claimed she had been given permission to arrive at work any time before 10:00am, though this was disputed by the employer. The employee also managed to arrive at work early for meetings 143 times between August 2011 and November 1, 2013. The employee had never been disciplined for occasions when she arrived at work after 8:30am.

When the employee met with the employer on January 6 ,2015, she was informed there had been changes to the employer’s operations, requiring her to be at work at 8:30am each day. However, the employee’s mother, who had previously lived with her, had moved out, meaning she had been planning to be in the office from 10:00-5:00 while her older children were in school, and available by phone otherwise. Nevertheless she told the employer she would try to find childcare for her older children before they went to school. She was put on a waiting list at her children’s school and expected to have to wait six months before an opening came up.

Ultimately the employee testified she did not return to work, having been unable to secure before school care for her two children, and the employer would not allow her to arrive at 10:00am.

The employee’s claim

The employee claimed the employer breached its obligations under the Employment Standards Act, 2000, particularly in that the hours offered to her on her return to work represented a unilateral change to a fundamental term of the employment contract. She also claimed the employer had an obligation to accommodate her childcare needs as required under the provinces Human Rights Code.

The employer’s perspective

The court spent some time covering instances that happened at work before the employee took leave that brought her credibility into question. This was further emphasized when the employer testified it had offered the employee an alternative position, which would have allowed her to start work at 10:00am. The employee did not respond to this offer. The court summarized its analysis, stating,

“Taken as a whole, the evidence leads me to conclude that (the employer) was a good employer to the (employee). (The employer) allowed the (employee) flexibility with her hours, and showed her sympathy and accommodation following earlier miscarriages and throughout her last pregnancy. In return, (the employer) expected and understood that the (employee) would be able to come to work in the early morning when required, and be willing and able to field early morning telephone calls from home or en route to work.”

The court also found the employees lack of communication with the employer, including her decision to simply not return to work, left the employer with too little information to properly accommodate her.

The experienced family law lawyers at Gelman & Associates understand the pressures faced by working parents, and the impact that competing needs and obligations can have on a family. We can help protect your rights and assets during a separationdivorce or any other family law matter. O phone lines are open Monday to Friday from 8 AM to 8 PM. We can be reached at (844) 769-0737 or 1-844-769-0737 as well as online for a confidential initial consultation.