Welcoming a child through adoption or surrogacy can involve appointments, travel, legal processes, agency requirements, uncertain timelines, and a significant period of adjustment. For employees, these responsibilities may overlap with work well before a child formally arrives in their care.

Ontario employees who become parents through adoption or surrogacy may already qualify for parental leave under the Employment Standards Act, 2000 (the “ESA”). The province has also enacted a separate 16-week placement of a child leave intended to address some of the responsibilities that can arise before and around a child’s placement.

However, the new placement leave has not yet come into force. Employers and employees should therefore distinguish between the parental leave rights currently available and the additional leave that is expected to become available on a future date.

Parental Leave Is Not Limited to Birth Parents

Under the ESA, parental leave is an unpaid, job-protected leave available when an employee becomes a new parent. It is not restricted to employees who give birth.

Parental leave may be available when a child is born or first comes into an employee’s custody, care, and control, including through adoption. An employee generally qualifies after being employed by the employer for at least 13 weeks before the leave begins.

An employee who does not take pregnancy leave may take up to 63 weeks of parental leave. This category can include adoptive parents, intended parents through surrogacy, non-birth parents, and birth parents who do not take pregnancy leave.

When Parental Leave Can Begin

An employee who takes pregnancy leave will ordinarily begin parental leave when the pregnancy leave ends. Different timing rules apply to other parents.

For an adoptive parent, parental leave may generally begin when the child first comes into the employee’s custody, care, and control. For an intended parent through surrogacy, the timing may depend on when the child comes into that person’s custody, care, and control.

This timing can create practical challenges. Adoption and surrogacy arrangements may require employees to take time away from work before they can begin parental leave. For example, an employee may need to travel, attend meetings, complete transition visits, participate in legal proceedings, or prepare for a placement date that later changes.

Ontario’s New Placement of a Child Leave

Ontario passed the Working for Workers Six Act, 2024, which amended the ESA to create a new placement of a child leave. The leave is intended for employees welcoming a child through adoption or surrogacy.

Once the provisions are proclaimed in force, an employee who has worked for an employer for at least 13 weeks will be entitled to up to 16 weeks of unpaid, job-protected leave because of a qualifying placement.

A placement will include:

• The placement of a child into an employee’s custody, care, and control for the first time for the purpose of adoption
• The arrival of a child into an employee’s custody, care, and control for the first time where the person who gave birth is a surrogate
• Any additional event or circumstance prescribed by regulation

The legislation has received Royal Assent, but the placement leave provisions are not yet in force as of August 1, 2026. They will take effect on a date proclaimed by the Lieutenant Governor.

Leave May Begin Before the Child Arrives

One significant feature of the new placement leave is that it may begin before the child formally enters the employee’s care.

The enacted framework permits an employee to begin the leave as early as six weeks before the expected placement. This period could provide time to manage adoption or surrogacy requirements that arise before the child’s arrival.

The leave must be taken as one continuous period rather than divided into several separate absences. The legislation also addresses situations in which an expected placement does not proceed after the employee has already started the leave.

How Much Placement Leave Is Available?

The total placement leave entitlement is 16 weeks in respect of a child. The legislation provides that the combined amount taken by one or more employees for the same child cannot exceed 16 weeks.

This sharing rule may be relevant when two intended or adoptive parents work for Ontario-regulated employers, and both qualify for leave. They may need to determine how the available weeks will be divided.

The placement leave is separate from parental leave. Under the enacted amendments, an employee who takes placement leave may subsequently qualify for up to 62 weeks of parental leave. The precise interaction between the leaves will depend on the employee’s eligibility, timing, and circumstances.

Notice and Supporting Evidence

The placement leave provisions establish notice requirements intended to help employers plan for an employee’s absence.

An employee will generally be required to provide at least two weeks’ written notice of the dates on which the leave is expected to begin and end. Adoption and surrogacy timelines can change unexpectedly, so the legislation also addresses circumstances in which advance notice may not be possible.

An employer may request evidence that is reasonable in the circumstances to establish the employee’s entitlement. Depending on the situation, relevant documentation might include information from an adoption agency, a child welfare organization, a surrogacy arrangement, a legal representative, or another participant in the placement process.

Employers will also be required to retain specified records connected with the leave for three years after it ends.

Job Protection During an ESA Leave

ESA leaves are generally unpaid unless an employment contract, workplace policy, or collective agreement provides a paid benefit. Employment Insurance benefits are administered separately under federal law and do not determine whether an employee qualifies for an Ontario job-protected leave.

Employees who take a protected ESA leave are generally entitled to continue participating in certain benefit plans, including pension, life insurance, extended health, dental, and accidental death plans. The employee may remain responsible for their normal share of any required premiums.

In most cases, an employee returning from an ESA leave must be reinstated to the same position. If that position no longer exists, the employer must generally offer a comparable position. Employers are also prohibited from threatening, dismissing, or otherwise penalizing an employee because the employee takes, plans to take, or is eligible to take a protected leave.

Human Rights Obligations May Also Apply

The ESA establishes minimum employment standards. Workplace responsibilities involving adoption, pregnancy, family status, disability, sex, and gender identity may also engage the Ontario Human Rights Code.

An employee involved in an adoption or surrogacy process may request schedule changes, remote work, time away for appointments, or other workplace adjustments before an ESA leave begins. Whether accommodation is required will depend on the protected ground involved, the employee’s needs, and whether the requested measure would cause undue hardship.

Employers should apply leave and accommodation policies consistently. Assumptions about who is a parent, which parent requires time away, or how a family was formed can create legal and workplace concerns.

Preparing Workplace Policies for the New Leave

Although the placement of a child leave is not yet in force, employers may use the intervening period to review their existing policies.

Policies should clearly distinguish pregnancy leave, parental leave, placement of a child leave, contractual paid leave, vacation, and any discretionary personal leave. Payroll, benefits, and human resources systems may also need to account for a separate 16-week absence followed by parental leave.

Managers responsible for receiving leave requests should understand that adoptive and intended parents may face short notice and changing placement dates. Employers may also wish to establish a process for requesting documentation without seeking unnecessary personal, medical, or family information.

Clear Communication Can Reduce Workplace Disputes

Adoption and surrogacy do not always follow a predictable schedule. Delays, unsuccessful placements, travel requirements, court dates, and changes to anticipated arrival dates may affect both the employee and the workplace.

Early communication can help the parties discuss expected timing, benefit continuation, documentation, work transitions, and the employee’s anticipated return date. Employers should avoid treating preliminary dates as fixed when the process remains outside the employee’s control.

Employees should provide written notice and updates where reasonably possible. Keeping records of communications may also help clarify which leave is being requested and when it is expected to begin.

Haynes Law Firm: Toronto Employment Lawyers for Parental and Placement Leave Matters

Ontario’s adoption, surrogacy, and parental leave rules can raise questions about eligibility, notice, documentation, continuation of benefits, accommodation, and reinstatement. The forthcoming placement of a child leave will add another layer to the leave framework for Toronto employers and employees.

Haynes Law Firm can provide information about ESA parental leave, adoption leave, surrogacy leave, workplace accommodation, employment contracts, human resources policies, and return-to-work disputes. Contact our Toronto employment lawyer, Paulette Haynes, at (416) 593-2731 to discuss an employment leave matter affecting your workplace or family.