Navigating leave entitlements as an expectant or new parent can be overwhelming. In Ontario, the Employment Standards Act (ESA) distinguishes between pregnancy leave (often called maternity leave) and parental leave, each with unique eligibility criteria, durations, and rights. Understanding these differences is crucial to maximizing your time with your child while protecting your job and income. Here’s a breakdown of how these leaves work under Ontario law.

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1. Pregnancy Leave (Maternity Leave)

Purpose: Designed for birth mothers to recover from childbirth and care for their newborn.
Key Features:

• Duration: Up to 17 weeks of unpaid, job-protected leave.
• Eligibility:
  
  • Must have at least 13 weeks of continuous employment with the employer before the due date.
  • Applies to all employees, including part-time, casual, and temporary workers.
• Timing: Can start as early as 13 weeks before the due date and must end no later than 17 weeks after the birth.

Employment Insurance (EI) Maternity Benefits:

• Income Support: 15 weeks of EI benefits at 55% of average earnings, up to $668/week (2024).
• Qualifying Period: Requires 600 insured hours in the past 52 weeks.

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2. Parental Leave

Purpose: Available to all parents (birth, adoptive, or surrogacy arrangements) to bond with a new child.
Key Features:

• Duration:
  
  • Standard: Up to 63 weeks (if combined with pregnancy leave).
  • Extended: Up to 77 weeks (if opting for extended EI benefits).
• Eligibility:
  
  • Must have 13 weeks of continuous employment before the leave starts.
  • Applies to all parents, including same-sex couples and adoptive families.
• Timing: Must be taken within 78 weeks of the child’s birth or adoption placement.

EI Parental Benefits:

• Standard Option: 35–40 weeks (shared between parents) at 55% of earnings.
• Extended Option: 61–69 weeks (shared) at 33% of earnings.

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3. Key Differences at a Glance

In Ontario, there are key differences between pregnancy leave and parental leave. Pregnancy leave is exclusively for birth mothers, lasting up to 17 weeks, and Employment Insurance (EI) benefits provide 15 weeks of support specifically for the mother. This leave can begin as early as 13 weeks before the due date, and eligibility requires 13 weeks of continuous employment before the due date.

Parental leave, on the other hand, is available to all parents, including adoptive, same-sex, and surrogacy situations. It can last between 63 to 77 weeks, with EI benefits providing 35 to 69 weeks of support that can be shared between parents. This leave starts after the birth or adoption of the child, and eligibility requires 13 weeks of continuous employment before the leave start date.

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4. Can You Take Both Leaves?

Yes! Pregnancy leave and parental leave can be taken consecutively:

1. A birth mother can take 17 weeks of pregnancy leave followed by up to 77 weeks of parental leave.
2. The non-birthing parent (e.g., a father or second parent) can take parental leave only.

Example: A mother takes 17 weeks of pregnancy leave, then splits 61 weeks of extended parental leave with her partner.

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5. Shared Parental Leave and EI Benefits

• Parents can split parental leave and EI benefits in any way they choose (e.g., 30 weeks for one parent and 31 weeks for the other).
• Adoptive/Surrogacy Parents: Eligible for parental leave from the date the child is placed with them.

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6. Employer Obligations for Both Leaves

• Job Protection: Employers must hold your job or offer a comparable position upon return.
• Benefits Continuation: Health/dental benefits continue if you pay your share of premiums.
• No Reprisals: Employers cannot demote, discipline, or terminate you for taking leave.

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7. Common Pitfalls to Avoid

• Missing EI Deadlines: Apply for EI maternity/parental benefits within 4 weeks of your last day worked.
• Overlapping Leaves: Pregnancy and parental leaves run sequentially, not concurrently.
• Failing to Notify Employers: Provide written notice at least 2 weeks before your leave starts (unless impractical, e.g., premature birth).

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8. Special Cases

• Stillbirth or Miscarriage: Parents retain the right to pregnancy/parental leave and EI benefits.
• Surrogacy: Intended parents are entitled to parental leave once the child is born.
• Adoption: Leave begins when the child is placed with the family.

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9. Frequently Asked Questions

Q: Can I take parental leave if I didn’t take pregnancy leave?
A: Yes! Parental leave is available to all eligible parents, regardless of whether pregnancy leave was used.

Q: Are these leaves paid?
A: Under the ESA, both leaves are unpaid, but EI benefits provide income support. Some employers offer “top-up” pay.

Q: What if my employer denies my leave?
A: File a complaint with the Ontario Ministry of Labour within 2 years of the violation.

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10. Conclusion

Pregnancy leave and parental leave serve distinct but complementary purposes in supporting new parents. While pregnancy leave focuses on the birth mother’s health and recovery, parental leave allows all parents to bond with their child. By understanding your rights under the ESA, coordinating EI benefits, and communicating with your employer, you can confidently plan for this life-changing chapter.

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Free Consultation with London Employment Lawyers

Ontario’s laws provide critical protections for employees during mass layoffs, ensuring they receive fair notice, severance pay, and support. If you’re affected by a group termination, understanding your rights and seeking professional advice can help you navigate this challenging time and secure the compensation you deserve. Please do not hesitate to contact our experienced Ottawa employment lawyers for a free legal consultation. Randy Ai Law Office can be contacted at (548) 489-2006 or fill out the contact form.

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