July 8, 2004

Do Same Sex Partners Get Parental Leave?

Question: Our organization has an employee in a same-sex relationship who has recently become a parent. Although she was not the party who gave birth to the child she is requesting a leave of equal time as her partner who actually had the baby. Granting such a leave is potentially devastating to our business. Must this leave of absence be granted?

Answer: This is a request for a parental leave (or childcare leave as it is called in some jurisdictions.) The parental leave exists in all jurisdictions in Canada . In Ontario, regardless of whether or not a party actually gives birth, s. 48(1) of the Employment Standards Act, 2000, states an employee who has been employed by her employer for at least 13 weeks and who is the parent of a child is entitled to a leave of absence without pay following the birth of the child or the coming of the child into the employee’s custody, care and control for the first time.

The purpose of the parental leave is to permit new parents to adjust to their new familial situation and obligations. This adjustment phase exists despite the employee not actually being pregnant, necessitating the creation of a parental leave category as distinguished from a pregnancy leave.

The fact the employee is integral to the success of a business is irrelevant when determining the merit of a leave of absence. As long as the employee gives written notice to her employer at least two weeks before the leave is scheduled to begin, and actually begins the leave within 52 weeks of the birth of the child, the employee is entitled to return to work at the termination of the leave as long as the job remains available. The employer is obligated under the act to reinstate the employee to the position most recently held, if it still exists, or to a comparable one if it does not.

If a business endeavour will flounder due to an employee’s parental leave, the employee may choose to take a less extensive leave or even no leave at all. But this does not affect the statutory right of the employee to take a full parental leave and to be reinstated to her position following the leave.

Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or pi@israelfoulon.com. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today

LEGAL DISCLAIMER: This article is for informational purposes only and is not intended to provide legal advice, which in all circumstances must be tailored to the specific facts of any problem. You should obtain a proper legal consultation in order to determine how this article applies to your specific situation.
Please feel free to contact Israel Foulon LLP to learn more at 416-640-1550.

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