Leave related to the death or disappearance of a child

April 3, 2013 Yosie Saint-Cyr, LL.B. Managing Editor Employee Relations, Employment/Labour Standards, Human Resources, Payroll, Pensions and Benefits, Union Relations

Effective January 1, 2013, under the Canada Labour Code, federally-regulated employers must provide employees who have completed six consecutive months of continuous employment; and, under the Manitoba Employment Standards Code, provincially-regulated employers must provide employees who have completed 30 days of continuous employment, with:

an unpaid leave of absence from employment of up to 104 weeks if the employee is the parent of a child who has died and it is probable, considering the circumstances, that the child died as a result of a crime (an offence under the Criminal Code, other than one that is excluded by the regulations). The 104-week leave ends 104 weeks after the day on which the death occurs.
an unpaid leave of absence from employment of up to 52 weeks if the employee is the parent of a child who has disappeared and it is probable, considering the circumstances, that the child disappeared as a result of a crime (an offence under the Criminal Code, other than one that is excluded by the regulations). The 52-week leave ends 52 weeks after the day on which the disappearance occurs.

The leave of absence ends on the day on which the circumstances are such that it is no longer probable that the death or disappearance was the result of a crime. Additionally, the aggregate amount of leave that may be taken by employees related to the same death or disappearance of a child, or the same children who die or disappear as a result of the same event, must not exceed 104 weeks in the case of a death or 52 weeks in the case of a disappearance.

That said, where a child disappears but is later found, the leave ends 14 days after the day on which the child is found (if the child is found during the 52-week period), but no later than the end of the 52-week period.

However, if the employee is charged with the crime or it is probable, considering the circumstances, that the employee was a party to the crime, the employee does not qualify for the leave.

For these leaves, a “parent” is defined as:

A parent of a child;
The spouse or common-law partner of a parent of a child;
A person with whom the child was placed for the purposes of adoption;
The guardian or foster parent of a child; or
A person who has the care, custody or control of a child, and is considered to be like a close relative, whether or not they are related.

A “child” is defined as a person under the age of 18.

In Manitoba, an employee who wishes to take a leave must give the employer notice of at least one pay period, unless circumstances necessitate a shorter period. Reasonable verification of the need for the leave must be provided to the employer as soon as possible. Employees may end the leave early by giving the employer written notice of at least one pay period before they wish to return to work, unless they agree to different notice. Unless the employee and employer agree otherwise, an employee may end a leave earlier than the expiry of the leave period by giving the employer written notice at least one pay period before he or she wishes to end the leave.

Employees in federally-regulated workplaces must provide notice of the leave to the employer in writing, containing the reasons and the length of the leave that they intend to take. Similarly, they must provide notice to the employer of any change in the length of the leave. In cases where the length of the leave is more than four weeks, the notice in writing of any change in the length of the leave must be provided on at least four weeks’ notice, unless there is a valid reason why that cannot be done. Employers have the right to ask for the employee to provide documentation in support of the reasons for the leave and of any change in the length of leave that the employee intends to take.

Employees who take a leave of more than four weeks and who want to shorten the length of the leave must provide four weeks’ notice; otherwise, the employer may postpone the employee’s return to work for a period of up to four weeks after the day on which the employee informs the employer of the new end date of the leave. In this situation, the period of the postponement is deemed to be part of the leave.

Lastly, an employer cannot dismiss, suspend, lay off, demote or discipline an employee because the employee has applied for a leave of absence related to the death or disappearance of a child. Employees must be allowed to return to their job, or a comparable job with the same or greater benefits and pay, when they return from leave. Employers may not discriminate or attempt to punish employees for taking the leave.

What about the other jurisdictions?

Quebec implemented such a leave in December 2007. Under the Quebec Labour Standards Code, employers must grant an unpaid leave of absence of up to 104 weeks (two years) with job protection to employees whose child or spouse dies or whose children suffer serious bodily injury as a result of a crime. The law also allows for up to 52 weeks (one year) of leave for employees whose child or spouse commits suicide or if their child disappears.

However, an employee may not take advantage of such a period of absence if it may be inferred from the circumstances that the employee was probably a party to the criminal offence or probably contributed to the injury by a gross fault.

Employees must have worked for the employer for three months before being entitled to the leave. In addition, the employee must advise the employer as soon as possible of a period of absence from work, giving the reasons for it, and, at the employer’s request, must furnish a document justifying the absence.

During the period of leave, the employee may return to work intermittently or on a part-time basis if the employer consents to it.

If, during the same 52 or 104-week period, a new event occurs, affecting the same child and giving entitlement to a new period of absence, it is the longer period that applies, from the date of the first event.

Ontario, Nova Scotia, and the Yukon territory have tabled legislation this year to enact a leave related to the death or disappearance of a child under their own employment/labour standards legislation. The Bills are pending and we will keep you informed of further developments.

Federal income support for parents of murdered or missing children

A new grant is available beginning on January 1, 2013.

This grant will provide $350 per week for up to 35 weeks to parents of murdered or missing children (less than 18 years of age) whose death or disappearance is the result of a suspected Criminal Code offence. To receive this taxable grant, affected parents will need to have earned a minimal level of income in the previous calendar year ($6,500) and take leave from their employment.

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor

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Yosie Saint-Cyr, LL.B. Managing Editor

Managing Editor at First Reference Inc.

Yosie Saint-Cyr, LL.B., is a trained lawyer called to the Quebec bar in 1988 and is still a member in good standing. She practiced business, employment and labour law until 1999. For over 18 years, Yosie has been the Managing Editor of the following publications, Human Resources Advisor, Human Resources PolicyPro, HRinfodesk and Accessibility Standards PolicyPro from First Reference. Yosie is one of Canada’s best known and most respected HR authors, with an extensive background in employment and labour across the country. Read more