Family status has long been one of the least understood and most restrictive types of human rights protections for employees. This is due to the legislative definition of family status, as well as the test for establishing family status discrimination as applied by courts, tribunals and arbitrators across the country.
Turning first to the meaning of family status, employees are often surprised to learn how narrowly it is defined.
Under the Ontario Human Rights Code (the “Code”), family status covers only those who are in a parent and child relationship. While this includes both a parent’s responsibility to their child and a child’s responsibility to their parent, it doesn’t include many other family relationships, such as between siblings or with extended family.
The Ontario Human Rights Commission (“OHRC”) has sought changes to the Code to reflect these other familial relationships, along with “the kind of ‘chosen families’ often adopted by LGBT persons, as well as the diverse support networks developed by persons with disabilities.” Nonetheless, no legislative changes have been made to date. As a result, it is still the case that employees are only protected under the Code if they are in a parent and child relationship.
For employees who meet this definition of family status, the next hurdle is whether they can satisfy the applicable test for discrimination. Answering this question may very well depend on where the employee works.
In British Columbia, for example, a highly restrictive test has recently been confirmed by the Court of Appeal in Envirocon Environment Services, ULC v Suen.  There, the Court stated the test as being: “When a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee [emphasis added].”
This type of test is concerning because it appears more rigid than the test applied for other human rights grounds (e.g. disability) where there isn’t a requirement of “serious interference”.
In Ontario, adjudicators have adopted an arguably more lenient test: whether there is a “negative impact [that results] in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work.” When applying this test, adjudicators consider the context, including whether there are other supports available to the applicant (e.g. alternative childcare).
Even this test, however, doesn’t perfectly mirror what we typically
see in the disability context. While employees with a disability have a duty to
cooperate in the accommodation process, they likely won’t have to secure their
own supports (e.g. a ramp into the office). Instead, it is on the employer to
provide appropriate (not preferred) accommodations.
Perhaps what is underlying family status
decisions is the breadth of the ground – we are nearly all in a parent and
child relationship – and a fear of opening the flood gates so to speak. While the law is still evolving in this area,
to date, this has led to a cautious and incremental approach to the law on
 2019 BCCA 46 [Envirocon].
 Misetich v Value Village Stores Inc., 2016 HRTO 1229.