By: Stephanie McDonald and Baljinder (Bal) Singh Tiwana
Parental leave is no longer viewed solely as a benefit for mothers. In Ontario, fathers have a clear statutory right to take extended time away from work, following the birth or adoption of a child. Despite this, many fathers remain uncertain about their rights or feel reluctant to exercise their rights. This blog explains the law governing parental leave for fathers under Ontario’s Employment Standards Act, 2000 (“ESA”) and highlights common workplace issues that father’s encounter.
Eligibility
Under the ESA, eligible fathers are entitled to take up to 63 weeks of unpaid, job-protected parental leave. This entitlement applies regardless of whether you are working full-time, part-time, permanent or are a fixed-term contract.
To qualify, a father must:
- Be employed in Ontario by an employer covered under the ESA;
- Have at least 13 weeks of service prior to starting leave; and
- Fall within the ESA’s definition of “parent.”
The ESA defines “parent” broadly. It includes not only biological and adoptive parents, but also individuals in relationships of some permanence with a parent, who intend to treat the child as their own.
Timing and Duration of Leave
Parental leave must be started within 78 weeks of:
- The child’s birth; or
- The date the child first comes into the father’s care.
Unlike pregnancy leave, parental leave for father’s offers flexibility. Fathers are not required to begin leave immediately and may choose a start date within the statutory window (78 weeks from the child’s birth or care).
Once started, however, parental leave must be taken as a continuous period, for up to the statutory maximum of 63 weeks.
Giving your Employer Notice
The ESA requires fathers to provide at least two weeks’ written notice before commencing parental leave. The notice should specify the intended start date and, ideally, the anticipated return date.
Where advance notice is not possible, most commonly due to an early birth, the law permits fathers to begin leave immediately. In such cases, the father must provide written notice within two weeks after ceasing work.
S. 51 of the ESA
Benefit plans (pension plans, life insurance plans, accidental death plans, extended health plans, dental plans and any prescribed type of benefit plan) must continue, unless the father has expressly (in writing) opted out.
S. 51.1 of the ESA
You can delay (defer) your vacation until after your leave ends. Section 51.1 of the ESA allows fathers to postpone their vacation entitlement until after their leave ends, where a conflict would otherwise result in forfeiture or reduced leave.
S. 53 of the ESA – Reinstatement Rights
At the conclusion of leave, the employer must reinstate the father to:
- The same position (if it still exists), or
- A comparable position, if the original role no longer exists.
Section 53(3) of the ESA requires that a reinstated father be paid a rate that is equal to the greater of: (a) the employee’s pre-leave wage rate; and (b) the rate the employee would have earned had they continued working throughout the leave.
S. 74 of the ESA – Protection from Reprisal
Employers are prohibited from punishing fathers for exercising their ESA rights. This includes termination, discipline, or any adverse treatment connected to taking, or the intention to take, parental leave.
Employment Insurance Considerations
Although ESA leave is unpaid, many fathers can access income support through federal Employment Insurance (EI) parental benefits.
After a child is born or adopted, eligible parents may receive Employment Insurance (EI) parental benefits. There are two options available: standard parental benefits and extended parental benefits.
Standard Parental EI Benefits
Standard parental benefits provide up to 40 weeks of benefits that can be shared between parents. However, no single parent can receive more than 35 weeks.
- Benefit rate: 55% of average weekly insurable earnings
- Maximum weekly benefit: $729
Extended Parental EI Benefits
Extended parental benefits provide up to 69 weeks of benefits that can be shared between parents. However, no single parent can receive more than 61 weeks.
- Benefit rate: 33% of average weekly insurable earnings
- Maximum weekly benefit: $437
Choosing Between the Two EI Benefits
The standard option provides a higher weekly benefit over a shorter period, while the extended option spreads benefits over a longer period at a lower weekly rate. Once parental benefits begin, the choice between the standard and extended option generally cannot be changed, so it’s important to consider which option best suits your family’s needs.
Common Issues for Father’s
Despite clear statutory protections, practical challenges remain.
Cultural and Workplace Pressures
Fathers often encounter implicit or explicit pressure not to take leave. While not always obvious, such pressure may influence your decision-making and undermine your statutory rights.
Expectations to Remain Available
Some employers expect fathers to remain responsive or perform work duties while on leave. This is strictly non-compliant with the ESA, and is not acceptable.
Changes to Your Role Upon Return
Disputes frequently arise where fathers return to a unilaterally altered role. While employers may implement legitimate, non-discriminatory business changes, significant unilateral changes to your role on return, may give rise to a claim of constructive dismissal or discrimination. For example, your employer may expect you to return to a less senior role with less responsibility based on your family status.
Timing of Disclosure
Fathers often struggle with when to inform their employer. While early disclosure may facilitate planning, it can also expose fathers to bias. It is therefore best practice for fathers to provide notice in accordance with ESA requirements, to help you avoid experiencing discrimination from your employer.
Conclusion
Parental leave for fathers in Ontario is a statutory entitlement, not a discretionary benefit. The ESA establishes a clear framework that balances flexibility for families with clearly defined obligations for employers.
However, workplace stigma, and discriminatory practices continue to create risk in the workplace. In practice, these dynamics may manifest as subtle discrimination, adverse treatment, or even constructive dismissal.
Fathers who understand their rights are better equipped to assert them, safeguard their employment, and navigate the transition to and from parental leave with confidence.
Workplace Sage Legal advises fathers on their rights before, during, and after parental leave. Whether you are planning your leave, facing resistance from your employer, or dealing with issues upon your return, seeking legal advice early can help you assert your rights and protect your future career.
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DISCLAIMER: This article/blog is provided for educational/informational purposes only. This blog does not constitute legal advice. Do not rely on any advice before speaking with a lawyer. This blog does not form a solicitor-client relationship.
