Access to Daycare: A Victory for Refugee Claimants

Understanding the Law

In a significant decision on gender equality, the Court of Appeal of Quebec has granted refugee claimants access to subsidized daycare in Quebec.

A refugee claimant (also known as an “asylum seeker”) is a person who is in Canada and has applied for refugee status but has not yet received a decision on their claim. The wait for a decision may be several years. During that time, they are eligible to receive a work permit.

Until 2018, refugee claimants with work permits had access to Quebec’s subsidized daycare program on an equal basis with other Quebec residents. In 2018, however, the Quebec government changed its interpretation of a regulation. This had the effect of denying refugee claimants access to subsidized daycare.

Ms. Bijou Kanyinda, a refugee claimant from the Democratic Republic of the Congo — and a single mother of three young children — decided to contest this denial of access. She said it was impossible for her to work if she had to pay a non-subsidized daycare rate of $50 a day per child instead of the subsidized rate of about $8 a day per child at the time.

Ms. Kanyinda launched a legal challenge in 2019 with the help of two volunteer lawyers. The challenge alleged, among other arguments, that the denial of access violated Ms. Kanyinda’s rights under the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms.

First round: a technical victory

In May 2022, the Superior Court of Québec ruled in favour of Ms. Kanyinda. However, the court rejected the argument that her rights under the Canadian and Quebec charters had been violated. Instead, the court ruled on the technical legal ground that the Quebec government did not have the legal authority to adopt the regulation in question.

Nevertheless, this decision would have restored access to subsidized daycare for refugee claimants — but the Quebec government appealed it to the Court of Appeal of Quebec.

Second round: an affirmation of equality rights

Earlier this month, in a unanimous decision, a three-judge panel of the Court of Appeal also ruled in favour of Ms. Kanyinda, but for very different reasons than the lower court. The Court of Appeal disagreed with the Superior Court’s finding that the government lacked the legal authority to adopt the regulation. However, the appeal judges accepted Ms. Kanyinda’s argument that the denial of access to subsidized daycare violated her rights under Section 15 of the Canadian Charter, which, among other things, prohibits gender-based discrimination.

The judges noted that the regulation in question does not specifically target women. However, they found it has a disproportionate impact on women, who have a historic disadvantage in the workplace because they take on most of the obligations concerning childcare. The court stated that the denial of access to subsidized daycare “reinforces, perpetuates and accentuates” the historic disadvantage faced by women in the job market.

Thus, the Court of Appeal has restored access to subsidized daycare for refugee claimants with work permits. They may be in for a long wait, though, as more than 37,000 children were on the waiting list as of last fall, and refugee claimants will have to wait their turn, just like other Quebecers.

The end of the story?

This legal saga may still not be over, however. On February 21st, the Quebec government announced it is appealing the decision to the Supreme Court of Canada.