Parental leave – 808-IPG-014

1. Subject

This IPG is intended to clarify and provide guidance on the application of section 206.1 of Part III of the Canada Labour Code (Code) covering Parental leave.

2. Issue

There is a need to clarify when natural and adoptive parents are eligible for and can start parental leave.

3. Guiding principles

Division VII provides maximum flexibility for parents under federal jurisdiction who want to take parental leave. The Code determines the eligibility for and timing of leave for each parent.

1. Eligibility

The eligibility for parental leave:

• of one parent is determined separately from the eligibility of the other parent
• depends on whether the employee has or will have actual care and custody of the child
• depends on whether proper notice was given to the employer

2. Timing of leave

One employee may be eligible to parental leave of up to 63 weeks. This leave must be taken during the 78-week period following the child's birth or the child's coming into the employee's care.

However, subsection 206.1(3) of the Code provides that if both parents take parental leave for their newborn or adopted child, they must ensure that their combined periods of parental leave are not more than 71 weeks. This does not prevent parents from choosing when to take parental leave but the leaves must be taken during the 78-week period following the child’s birth or the child’s coming into the employees’ care.

3. Parental leave and Maternity leave

The Code provides for up to 17 weeks of maternity leave. However, the total duration of the maternity and the parental leaves must not exceed 78 weeks when the parental leave is not shared. The total duration of the maternity and the parental leaves must not exceed 86 weeks when the parental leave is shared.

4. Questions

1. Which parent has care and custody of a new-born or adopted child?
2. Are both parents of a new-born or adopted child compelled or prevented from taking their respective shares of parental leave at the same time?

5. Responses

1. Which parent has care and custody of a new-born or adopted child?

A new-born child is in the custody of both natural parents, unless a court order declares otherwise.

The parents named in an adoption order or in adoption proceedings have care and custody of the child.

A parent is not required to be the primary person caring for a child in order for a child to be in a parent's care. A new-born child is in a parent's care when the child is living in that parent's home.

Therefore, it is probable that a child will be in the care of both parents – within the meaning of subsection 206.1(1) – at the same time.

In cases where the new-born child remains hospitalized after the mother leaves the hospital, the parents can choose to have the 78-week period in which to take parental leave start the day the new-born child is born or is released by the hospital into the parent's care.

Examples:

1) Both parents work in federally regulated industries and are eligible for parental leave. The mother's maternity leave starts seven weeks before birth and ends 10 weeks after the day the child is born. The mother chooses to take 35 weeks parental leave immediately following the expiry of her maternity leave. The other parent chooses to take 34 weeks parental leave starting on the day the child arrives home from the hospital.

Text description of Figure 1

The image describes the time frame for a combination of maternity and parental leave for the mother and parental leave for the other parent. The mother takes 17 weeks of maternity leave starting seven weeks before the day the child is born and then takes 35 weeks of parental leave immediately after the maternity leave ends. The maternity leave ends when the child is 10 weeks old and the parental leave ends when the child is 45 weeks old. The other parent takes 34 weeks of parental leave starting the day the child is born and ending when the child is 34 weeks old. The total of both parents' parental leave is 69 weeks. The total of maternity leave and both parents' parental leave is 86 weeks.

2) Both parents work in federally regulated industries and are eligible for parental leave. The child remains hospitalized until 10 weeks after the mother's maternity leave has expired. The mother decides to take 32 weeks parental leave immediately after the end of her maternity leave, and then returns to work. The child's other parent takes 37 weeks of parental leave starting one week before the day the child is released from the hospital.

Text description of Figure 2

The image describes the time frame for a combination of maternity leave for the mother and parental leave for the other parent. The mother takes 17 weeks of maternity leave and the child remains hospitalized for 10 weeks. The mother takes 32 weeks parental leave immediately after the maternity leave ends. The other parent takes 37 weeks of parental leave starting one week before the child is released from the hospital. The total of both parents' parental leave is 69 weeks. The total of maternity leave and both parents' parental leave is 86 weeks.

3) Same circumstances as the previous example, however, the mother decides to take 11 weeks parental leave, starting the day the child is released from the hospital and the other parent takes 58 weeks parental leave, starting 20 weeks from the date the child is released from the hospital.

Between the end of the mother’s parental leave and the start of the other parent’s parental leave, the child has a nanny for nine weeks.

Text description of Figure 3

The image describes the time frame for a combination of maternity and parental leaves for the mother and parental leave for the other parent. The mother takes 17 weeks of maternity leave and the child remains hospitalized for 10 weeks. The mother takes 11 weeks parental leave when the child is released from the hospital. When the child has been at home for 20 weeks, the other parent takes 58 weeks of parental leave. In between the parental leaves, a nanny is with the child for 9 weeks. The total of both parents' parental leave is 69 weeks. The total of maternity leave and both parents' parental leave is 86 weeks.

b. Are both parents of a new-born child or an adopted child compelled to or prevented from taking their parental leave at the same time?

No. As the eligibility for leave and timing of leave in the Code are determined independently of each other, two parents who work in federally regulated industries are neither required to, nor prevented from, taking their share of parental leave at the same time. Parental leave starts at the time chosen by each parent. The fact that a child is in the custody of both parents at one time does not oblige the parents to take their share of parental leave at the same time.

However, their combined parental leave periods must not exceed 71 weeks, in accordance with subsection 206.1(3).

Text description of Figure 4

The image describes maternity and parental leaves for natural parents. The earliest date that maternity leave may start is 13 weeks before the child's birth for a maximum duration of 17 weeks. The image also describes that the earliest date that parental leave may start is the date of the child's birth for a maximum duration of 71 weeks within a period of 78 weeks.