Speakers Corner: A call to curb Ontario’s insatiable voyeurism through Day Nurseries Act

Hosting children’s birthday parties, neighbourhood barbecues or family reunions without first acquiring a licence from the provincial government may be an offence that can result in a penalty of up to $2,000 and/or six months in prison. That’s per offence.

I didn’t believe it either.
According to the Ministry of Children and Youth Services, a person requires a licence as per the Day Nurseries Act for operating a day nursery, the definition for which is “a premises that receives more than five children who are not of common parentage, primarily for the purpose of providing temporary care . . . where the children are . . . under 10 years of age.”

There are hundreds of unlicensed home daycares in Ontario that mostly provide after-school care for children while their parents complete their work day. Often, such daycares involve getting together in play groups where one caregiver hosts other children at a private residence.

Hosting play groups has the advantage of increasing educational opportunities for children by allowing many caregivers to split the cost of programs that would otherwise be too expensive.

For example, in Ottawa, some proprietors such as Little Ray’s Reptile Zoo specialize in providing hands-on activities to daycares. In fact, Centrepointe Childcare Services in Ottawa says caregivers are supposed to get together because “caring for children in isolation is not the best environment” for them.

The ministry claims it’s not trying to restrict play groups per se but is merely trying to limit them in private homes. Surprisingly, it encourages childcare providers to plan “activities off the premises” and take children to public places such as an Ontario Early Years Centre designed for groups of people to gather.

This distinction of where play groups are acceptable is artificial because it assumes that a home is unsafe as compared to a public place such as a mall, park or busy downtown area.

A home provides a confined area devoid of strangers and unknown risk where caregivers can watch children in a controlled environment. The ministry’s distinction, then, is false.

Perhaps most perplexing is the fact that although the ministry continues to lay charges under the act, mostly against unlicensed daycare operators, no one is aware of its interpretation.

When confronted with the definitions provided by the ministry, one Ottawa-based, ministry-funded Early Years Centre goes as far as asserting that “according to this new interpretation, the greater part of independent and agency-affiliated home-care providers have been breaking the law for years.”

But what about freedom of association? That’s the protected right under the Charter of Rights and Freedoms to come together and collectively pursue a common purpose.

The Supreme Court of Canada has affirmed that freedom of association should be given a broad interpretation by considering whether a particular activity of an association “is to be constitutionally protected.”

In Ontario, the province would have you believe a private homeowner isn’t entitled to determine who may visit. This is the role of your government. According to the current policy framework, a homeowner may have to turn away invited guests or those who show up unannounced because they haven’t acquired the requisite licence.

Here the ministry is seeking to control a basic right: the right to invite guests over to a personal residence for a social engagement. But the courts have said that s. 2(d) not only protects the freedom to form an association “but also to exercise an activity which an individual is permitted to do.”

Thus, because daycare providers have the individual right to operate a daycare, they should also have the collective right to associate with others doing the same thing. To put it another way, inviting guest daycares over to visit is enabling a group to function collectively in an activity that any individual provider is legally entitled to do.

The ministry’s interpretation is not saved under a s. 1 analysis because such an interpretation is unfair and based on irrational considerations. Hosting a play group isn’t unsafe if each participating daycare is within the statutorily prescribed limits.

The act, then, may be nothing more than a government cash grab.
Consider that daycare providers who wish to register their operation with the ministry are subject to yearly registration, fees, and a home inspection by the government.

They must also have equipment and furnishings in their home approved by the government and face increased insurance premiums, registration of staff members, and other requirements. All of that comes at a cost to the small-business owner.

The ministry’s interpretation, in fact, has recently attracted criticism from the Canadian Civil Liberties Association.

It believes, among other concerns, that the act seems to unjustifiably “preclude a parent or grandparent from looking after six of their nieces and nephews or grandchildren” for the afternoon. What would George Orwell say about that?

The government, therefore, should be interpreting the definition of a day nursery using a more common-sense approach. This includes restricting it from determining a homeowner’s right to decide who they may have over as invited guests.

In the alternative, because the ministry’s interpretation of a day nursery violates a homeowner’s Charter-protected right to associate freely, it should be struck out in its entirety.

Until that time, homeowners beware: You may require a licence if your child wishes to have a sleepover party, work on a group project for school, host a choir practice or a play basketball game in your driveway.    

Joshua Juneau is currently completing his articles with Michel Drapeau Law Office in Ottawa.

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