Criminal Law, Family

Victims' paid leave provisions lack clarity: Townsend

By Staff

A new Ontario law that ensures victims of domestic or sexual violence have time off work for counselling, legal and relocation purposes is a step in the right direction, but it lacks clarity in some important areas, says Toronto family and criminal lawyer Leanne Townsend.

“It will make it a little easier for them in terms of knowing they’ll still have a job if they need to take time off,” says Townsend, a partner with Brauti Thorning LLP.

“Employment and income are big concerns for people trying to leave an abusive relationship, so this offers them some protection. But one concern I have is what is the requirement of evidence or proof? There is potential for misuse on both sides,” she says.

Under amendments to the province’s Employment Standards Act and Occupational Health and Safety Act passed this year, employers must provide two types of leave for victims of domestic assault — up to 10 days, five of them paid, per calendar year to attend medical, psychological, police or victim-support appointments, or to move house, and up to 15 weeks of unpaid leave if an employee is unable to work for a prolonged period. The rights apply both to victims of violence, or threats of violence, and parents of a child facing violence or threats.

Ontario is following other jurisdictions, including Britain and Canada’s Prairie provinces, in recognizing that the trauma involved in domestic and sexual violence warrants paid leave for victims, Townsend tells

“It’s better than nothing. But it needs much more clarity around some issues,” she says.

Under the new provisions, employees must use the leaves for prescribed purposes — to see a lawyer, a victims support organization or a medical or psychology professional, for example.

It isn’t clear how this is to be proven, Townsend says. Victims need to provide information that is “reasonable under the circumstances,” according to the law, but the criteria have not been set. Another problem she foresees is that employees may be reluctant to disclose to the boss that they are in a violent domestic situation or have been sexually assaulted.

“You have a very different relationship with your employer than you do with a friend or a family member, so I don’t know if people will be willing to divulge. And it can also be very subjective. One employer may say yes in one situation, and on the very same facts another employer is going to say no, and I don’t think it’s really been clarified exactly how that’s going to look.”

There is no cap on the number of years in which the leave can be taken, Townsend points out.

“Every year you can get this. Unfortunately, some of these relationships go on for a long, long time. It's something that could be ongoing unless they leave the relationship. There doesn’t seem to be any requirement that they leave the relationship either.”

As cases come forward, some of these issues will be explained, Townsend says.

“There are many grey areas, but it’s good if it’s helping people keep their jobs. The prospect of financial insecurity is such a huge reason why people stay in abusive relationships.”

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