Family-building does not always begin with pregnancy and childbirth. Employees may become parents through adoption or surrogacy, both of which can involve appointments, administrative requirements, travel, transition periods and the arrival of a child into a new home.
Ontario employment standards already provide parental leave protections that can apply when a child comes into an employee’s care through adoption. Ontario has also enacted a new job-protected leave specifically addressing adoption and surrogacy placements, although that leave is not yet in force.
Parental Leave Is Already Available to Adoptive Parents
Under Ontario’s Employment Standards Act, 2000 (ESA), eligible new parents can take unpaid, job-protected parental leave. The legislation defines “parent” broadly and includes a person with whom a child is placed for adoption.
An employee generally qualifies if their employer is covered by the ESA and they have been employed for at least 13 weeks before beginning the leave. Employees who do not take pregnancy leave can generally take up to 63 weeks of parental leave, including qualifying adoptive parents.
Why Adoption and Surrogacy Can Create Different Leave Needs
Pregnancy leave is designed around pregnancy and childbirth, while adoption and surrogacy arrangements may involve responsibilities before a child formally enters a parent’s care.
An adoptive parent may need time for meetings, transition arrangements or travel before placement. Intended parents in a surrogacy arrangement may similarly have responsibilities shortly before the child’s anticipated arrival. Existing parental leave does not necessarily address these pre-placement needs.
Ontario Has Enacted a New “Placement of a Child Leave”
Ontario’s Working for Workers Six Act, 2024 amended the ESA to establish placement of a child leave. Once the provision comes into force, an employee who has worked for an employer for at least 13 weeks will be entitled to unpaid leave when a child is first placed into their custody, care and control for adoption. It will also apply when a child first arrives in an employee’s custody, care and control where the person who gave birth was a surrogate.
However, this amendment is not yet in force. It will take effect on a future date proclaimed by the Lieutenant Governor.
How Much Placement Leave Will Be Available?
Qualifying employees will be entitled to up to 16 weeks of unpaid leave in respect of a child. The total placement leave available to one or more employees in respect of the same child will be 16 weeks. This differs from ordinary parental leave, under which eligible parents may each have their own ESA leave entitlement.
The placement leave will generally have to be taken as one continuous period.
The Leave Can Begin Before the Child Arrives
One notable feature of the new leave is that employees may be able to begin it before the child’s actual placement or arrival.
The leave may begin no earlier than the earlier of six weeks before the expected placement date and the date the placement actually occurs. It must end no later than 17 weeks after the day of placement.
If an employee has already begun leave and learns that the expected placement will not occur, the leave will generally continue for 14 days after they receive that information, unless the employer and employee agree to a shorter period.
Notice and Record-Keeping Requirements
Once placement leave comes into force, employees will generally be required to provide written notice identifying when they intend to begin and end the leave. Ordinarily, at least two weeks’ notice will be required.
The legislation also addresses situations where placement timing changes unexpectedly. Employers will have corresponding record-keeping obligations, with specified records generally required to be retained for three years after the leave expires.
Job-Protected Leave and EI Benefits Are Different
ESA leave and Employment Insurance benefits are separate concepts. Ontario employment standards determine whether an eligible employee can take protected time away from work, while EI determines whether qualifying individuals can receive federal income-replacement benefits.
Eligible parents of newborn or newly adopted children may currently receive EI parental benefits. Standard benefits provide up to 40 shared weeks, although one parent cannot receive more than 35 weeks. Extended benefits provide up to 69 shared weeks, with no one parent receiving more than 61 weeks.
The federal government has also enacted a separate 15-week EI adoption benefit intended to support people becoming parents through adoption or surrogacy. Like Ontario’s placement leave, however, the federal benefit is not yet in force.
Surrogates and Intended Parents May Have Different Entitlements
Surrogacy arrangements can involve different employment and EI entitlements for the person giving birth and the intended parent or parents.
For EI purposes, maternity benefits may be available to eligible people who are away from work because they are pregnant or have recently given birth, including surrogates. EI parental benefits, however, are not available to a surrogate simply because they gave birth as part of a surrogacy arrangement.
Ontario’s incoming placement leave instead focuses on the employee into whose custody, care and control the child arrives where the person who gave birth was a surrogate.
Ontario Employers Can Prepare Before the New Rules Take Effect
Because Ontario’s placement leave provisions have already been enacted, employers can consider them when reviewing parental leave policies, human resources documents and internal procedures.
Policies focused exclusively on pregnancy and biological parenthood may not reflect the broader family-building arrangements recognized by employment standards legislation. Employers should also distinguish between existing parental leave entitlements that are currently effective and placement leave that will become available only after its commencement date is proclaimed.
Adoption and Surrogacy Leave Rules Are Evolving
Adoptive parents already have access to ESA parental leave where the statutory requirements are met. Ontario’s enacted placement of a child leave will eventually create an additional form of protected time specifically connected to adoption and surrogacy.
Because the new Ontario leave and corresponding federal EI adoption benefit await implementation, employers and employees should continue to monitor commencement dates and related regulations or administrative guidance.
Bader Law: Mississauga & Oakville Employment Lawyers for Adoption, Surrogacy and Parental Leave Questions
The employment lawyers at Bader Law assist employers and employees in Mississauga, Oakville, and throughout the GTA with parental leave, adoption leave, surrogacy leave, pregnancy leave, ESA entitlements, workplace policies, return-to-work obligations and employment standards compliance. Contact us online or call (289) 652-9092 to discuss questions about Ontario employment leave rights and responsibilities.