Ontario Parental Leave – Know Your Rights

The minimum employment standards for parental leave in Ontario are outlined in Ontario’s Employment Standards Act, 2000 (“ESA”) for provincially regulated employees.

Under the ESA, both new parents have the right to take parental leave. A “parent” includes a birth parent, an adoptive parent, or a person who is in a relationship of some permanence with a parent of the child. 

A new parent is eligible for parental leave regardless of if they are a full-time, part-time, permanent, or term contract employee. However, the parent must be an employee under the ESA and must have been employed for at least 13 weeks before starting parental leave.

Parental Leave in Ontario Begins within 78 weeks

All parents must begin their parental leave no later than 78 weeks after the date the baby was born or the date their child first came into their care, custody, and control. 

A birth mother who takes pregnancy leave will normally start parental leave as soon as the pregnancy leave ends. However, if the baby has not come into the mother’s custody when the pregnancy leave ends, they can choose to return to work and start parental leave at a later time, within 78 weeks.

Parental Leave in Ontario is up to 63 Weeks Off

The ESA allows birth mothers who take pregnancy leave to take parental leave for up to 61 weeks. All other new parents can take parental leave for up to 63 weeks. 

While these are the maximum number of weeks employees are entitled to take for parental leave, employees can still take a shorter leave if they wish. However, parental leave cannot be divided up. Employees cannot use up a portion of their parental leave, return to work and then go on parental leave again for the unused weeks. 

Giving Your Employer Notice of Parental Leave

Employees must give their employer at least two weeks’ written notice before starting their parental leave. Once an employee has given their employer notice of their parental leave, the employee may begin their leave at an earlier date so long as they give another written notice stating their new date at least 2 weeks prior to their new date. Likewise, an employee can also start their parental leave on a later date, provided that a new written notice is given at least 2 weeks before the original date the leave was to begin.

When an employee stops working earlier than expected because their child is born or comes into the employee’s custody, care and control earlier than expected, the parental leave is deemed to have begun on the day the employee stops working.

Unless otherwise specified, an employer is to assume that the employee will use the full 61 or 63 weeks of parental leave. If an employee wishes to return to work before using their 61 or 63 weeks of leave, the employee must give four weeks’ written notice to their employer before the day the employee wishes to return to work. 

An employee who fails to provide notice to their employer does not lose their right to parental leave.

If You’re Not Returning To Work After Parental Leave

An employee who decides to resign from their employment during their parental leave, or at the end of their parental leave, must give their employer four weeks’ written notice of their resignation. However, this notice requirement does not apply if the employee has been constructively dismissed.

The Rules Governing the Payment of Parental Benefits are Different from the Right to Take Time Off for Parental Leave Under the ESA

While the ESA provides eligible new parents the right to take unpaid time off work, the federal Employment Insurance Act  provides eligible employees with maternity and/or parental benefits that may be payable to the employee during the parental leave.

The rules governing the right to take time off work for pregnancy and parental leave under the ESA are different from the rules regarding the payment of maternity benefits and parental benefits under the federal Employment Insurance Act. For example, while a  new father may be entitled to a job protected parental leave under the ESA , depending on the timing of the parental leave there may be restrictions on accessing parental benefits. It is important to review  the available information concerning EI maternity and parental benefits when considering taking parental leave under the ESA. It is extremely important that employees obtain information about their rights to EI benefits if they are considering taking a pregnancy or parental leave under the ESA. The government of Canada website provides more information on EI maternity and parental benefits.

If You Are Having Problems Taking Parental Leave

If you are encountering difficulties in taking parental leave, perhaps because your employer is threatening to discipline or terminate you, consider speaking with an employment lawyer at Monkhouse Law. You have a right to parental leave. 

Monkhouse Law is an employment law firm located in Toronto, focusing on employees’ issues. Give us a call at 416-907-9249 or fill out this quick form. We offer a free 30-minute phone consultation.

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