Switching From The 12 to 18 Month Parental Leave

You want to extend the length of your maternity leave and are wondering if you can do it without losing your job. The quick answer is, yes, under Canadian employment law you can change your mind, and the amount of time you are off work, even after your baby is born. Here is how I did it, and how you can go about switching from the 12 to 18 month parental leave.

If you are like me, your heart may be breaking at the thought of leaving your baby to return to work. I remember counting down the months, and then weeks, with a sense of panic! Or, perhaps there are other family considerations keeping you at home longer.

Whatever your reasons, you should to be informed about your rights, and the process you need to follow with your employer, in order to change the length of your maternity leave and protect your job.

How To Extend Your Parental Leave

As Canadians, we are very lucky to have the option to stay home with our new babies and receive employment benefits for up to 18 months. Extended parental benefits (18 month leave) is a rather new thing in Canada, starting in 2017. I was only able to take advantage of it with my fourth child. And, yes, I did tell my employer I would only be away for a year at first…and then changed my mind later.

Please note, this article describes how you can alter the date you had planned to return to your job by understanding the labour laws in your province or territory. However, you can’t change your employment insurance payments once you have started to receive those benefits.

For example, if you apply for EI maternity and parental benefits to be paid over a year but then decide to stay home with your baby for 18 months, your EI benefits will still run-out after 12 months.

Know Your Provincial Employment Standards Act Policy

I reside in Ontario, so my rights as a new mom, and employee, on maternity leave are explained in Ontario’s Employment Standards Act Policy Manual (0ntario). It is a big document, detailing the rights of workers and employers in a variety of circumstances, but here is the important part for moms (and dads) taking parental leave.

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Choosing The End Of Parental Leave – Section 49(1)

First off, section 49(1)of the Ontario Employee Standards Act says that an employee’s parental leave ends 61 weeks after it began, if the employee also took pregnancy (maternity) leave; or 63 weeks after it began, if pregnancy leave wasn’t taken.

The key part here is that the employer must assume that an employee who is taking parental leave will be gone for the full 61 or 63 weeks, unless the employee gives written notice otherwise (section 49(2)).

There is no obligation for the mom or dad to take the full amount of leave allowed. For example, you may opt to only take a year off work and receive federal Employee Insurance Benefits at a higher rate over 52 weeks, instead of spreading out the same amount of money over an 18 month period.

The length of parental leave was increased on December 3, 2017 in order to coincide with the extended period of time over which EI parental benefits may be taken. It is important to note, however, that there are differences regarding your entitlements to take a leave from work as set out in the Employment Standards Act, 2000 versus your eligibility to receive benefits while on maternity/parental leave set out in the federal Employment Insurance Act, SC 1996, c 23.

When wanting to extend your maternity or parental leave, it is your provincial or territorial Employee Standards Act that explains your right to do so. As a resident of Ontario, here is what I learned about if, and how, I could switch from the 12 to 18 month parental leave.

Read: How to Save Money for Maternity Leave

Changing The End Date Of Parental Leave– Section 49(3)

According to section 49(3), an employee who has given notice to end his or her parental leave may end the leave:

“On an earlier day then was set out in the notice, if the employee gives the employer a new written notice at least four weeks before the earlier day; or
On a later day than was set out in the notice, if the employee gives the employer a new written notice at least four weeks before the day indicated in the original notice. An employee may have given notice under s. 49(2), or even this section, that they intended to end the parental leave on a date earlier than the maximum or on a different date than the date they set out in a previous notice. However, the employee may then change their mind, and wish to end the leave on a different date. The employee may change the date the leave will end to an earlier date so long as they give at least four weeks’ written notice before the new earlier date or to a later date so long as they give at least four weeks’ written notice before the original date.” (Ontario Employee Standards Act Policy Manual)

The big take-away here, in fact the entire point of this article, is that YES, you can extend your parental leave after if has already begun! Just make certain you provide your employer with at least 4 weeks notice, in writing.

What Happens If You Don’t Give Your Employer 4 Weeks Written Notice?

It is the policy’s position that your employer can refuse to allow you to return to work at a different date than you had previously indicated if you fail to give your employer four weeks notice in writing. This is very important if you are debating extending your parental leave and your back-to-work date is quickly approaching.

This provision makes sense from the employer’s point of view since they may need to find someone to cover your position for another 6 months or so.

If an employee does not provide enough notice that they intend to delay their return date, an employer that does not accept the new return date must communicate their refusal quickly. An employer cannot neglect to tell you “no” and then rely on your failure to provide 4 weeks notice to remove you from your job.

So, make sure you receive written approval, or objection, to your request to change the length of your parental leave from your employer. If your boss does not communicate their response, your employer cannot remove your right to reinstatement in your position for failing to provide proper notice. (Royce v Huan and Danczkay Properties Inc. (July 12, 1995), ESC 95-136 (Novick).

Ending Parental Leave Early – Section 49(2)

Let’s say that you want, or need, to return to your job earlier than intended. According to section 49(2), you may end a parental leave earlier by giving your employer written notice at least four weeks before the day you wish to end the leave.

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Changing The Length Of Parental Leave – Province By Province Guide

Okay, so that is how things work in Ontario. I recently looked into the possibility of extending parental leave in British Columbia for a reader who wrote to me with a question. She had read my article, How To Choose Between The 12 and 18 Month Parental Leave, and wanted to find out if she could stay at home with her new baby longer than she had planned to.

British Columbia

Residents of British Columbia can refer to the Employment Standards Act for British Columbia for laws related to taking maternity and parental leaves in that province. Unlike Ontario though, the rules around changing your return to work date with your employer are not clearly laid-out.

Section 51 of the Act explains that a parent who takes parental leave due the birth of their child is entitled to 61 consecutive weeks of unpaid parental leave, which must begin (unless the employee and employer agree otherwise), directly after maternity leave. This 61 weeks is in addition to the 17 weeks of your maternity leave. Maternity leave is covered under Section 50.

Parents who adopt a child are entitled to up to 62 consecutive weeks of unpaid leave, which must begin within 78 weeks after the child or children are placed with the parent.

Section 51(3)A states the conditions for requesting parental leave as follows:

(a)be given in writing to your employer
(b)be given to your employer at least 4 weeks before you to begin leave
(c)if required by your employer, be accompanied by a medical practitioner’s or nurse practitioner’s certificate or other evidence of your entitlement to leave

As you can see, there isn’t a section in the Employee Standards Act for British Columbia explaining how to change the date of your parental leave after you are already at home with your baby. The Act does state that new moms are entitled to those 61 weeks of parental leave, so I hope that as long as you provide 4 weeks notice in writing to your employer, they would agree to the change.

Read: How to Choose Between a Childcare Centre versus Home Daycare

Quebec

Labour Standards in Quebec provide information to moms and dads wanting to take parental leave in Quebec. Similar to Ontario, there are instructions pertaining to changing the length of a parental leave as follows:

“Employees may return to work before the date stated in the notice they gave the employer before leaving. They must send the employer, 3 weeks in advance, a new notice specifying the date of their return.” (Labour Standards)

There is nothing written in the Labour Standards document about extending the length of parental leave if you originally told your employer you would return to work earlier.

Every parent of a newborn, or newly adopted child, is entitled to unpaid parental leave for up to 65 weeks. Parental leave is in addition to the 18-week maternity leave or 5-week paternity leave.

So, similar to the situation in British Columbia, I recommend contacting your employer as soon as possible to discuss extending your parental leave to the full 65 weeks, if you had originally given them an earlier return-to-work date.

Read: 6 to 12 Month Old Baby Essentials on a Budget

Alberta

Alberta Employment Standards rules say that birth, and adoptive, parents can take up to 62 weeks of unpaid parental leave.

You must give your employer written notice at least 6 weeks before starting maternity or parental leave. However, unlike in other provinces, you aren’t required to specify a return date at the start of your leave. So, if you aren’t sure how long you will be home with your baby, you can decide later.

Remember though, that you will need to decide ahead of time if you want the 12-month or 18-month employment insurance benefits payments when you apply. You can’t change your payment schedule once you begin receiving the money.

Once you decide when you are going to end your parental leave, employees are required to give written notice at least 4 weeks before they:

return to work
will not be returning to work after their leave ends

Your boss isn’t required to reinstate you if you fail to give proper notice or you report to work after your leave ends.

For the labour and employment standards rules in each of Canada’s provinces and territories, please click on the links provided in the table below. Scroll through your selected document to find the rules and regulations for parental leaves where you reside.

Provincial & Territorial Employee Standards Act Policy Links Table

PROVINCE or TERRITORY	EMPLOYEE STANDARDS ACT POLICY LINK
Ontario	Employment Standards Act Policy Manual
Quebec	Labour Standards in Quebec
British Columbia	Employee Standards Act for British Columbia
Alberta	Alberta Employment Standards
Saskatchewan	Saskatchewan Employment Standards Act
Manitoba	Manitoba Employment Standards Code
Nova Scotia	Nova Scotia Labour Standards Code
Prince Edward Island	Prince Edward Island Employment Standards Act
Newfoundland & Labrador	Newfoundland & Labrador Labour Standards Act
Northwest Territories	Northwest Territories Employment Standards Act
Yukon	Yukon Employment Standards Act
Nunavut	Nunavut Labour Standards Act

Labour & Employment Standards Across Canada