Unequal Access in Canada’s Migrant Caregiver Industry

Migrant caregivers are the backbone of Canada’s care economy yet they remain one of the most vulnerable groups in the labour market.^[1] The roughly 25,000, predominantly racialized women migrant caregivers in Canada provide essential care for children, the elderly, people with disabilities, and people in need of ongoing medical care. For decades, Canada has sought to fill critical workforce shortages in the caregiver industry by providing temporary immigration pathways tailored to foreign workers.^[2] Foreign workers arriving mainly from the Global South have temporarily made Canada their home through federal immigration programs like the Live-In Caregiver Program (1992-2014), the Caring for Children or People with High Medical Needs Program (2014-2019), the Home Child Care Provider Pilot and Home Support Worker Pilot (2019-2024), and the current Temporary Foreign Worker Program. The many iterations of the foreign worker/migrant caregiver federal government pathway, spanning several decades and federal administrations, speak to the ongoing challenges of balancing the diverse priorities and interests of migrant caregivers, employers, governments, and the public through foreign worker schemes while also ensuring that these programs remain a viable labour force option in the caregiver industry. It goes without saying that migrant caregivers, more so than other stakeholders, face the greatest risks and obstacles when participating in these programs, particularly as relates to rights violations and access to justice. A recent United Nations Human Rights Council report on contemporary forms of slavery brings some of the most egregious abuses and shortcomings of Canada’s temporary foreign worker system into sharp relief, including those involving migrant caregivers.[3] Significant change is needed to ensure equitable treatment and better access to justice for foreign workers in Canada’s caregiver industry.

Vulnerabilities and Challenges for Temporary Migrant Caregivers

Canada’s immigration policies have long included pathways for caregivers to fill labour shortages in the domestic work sector unattractive to Canadians.^[4] However, these policies have often created precarious conditions that enable exploitation and abuse. Migrant caregivers often endure low wages, excessive work hours, isolation, violations of privacy, inadequate food and accommodation, and various forms of abuse.^[5] The power imbalance between a migrant caregiver and their employer—particularly where the migrant caregiver is fully reliant on their employer for housing, food, and other basic necessities—can be significant. For these migrant workers, the fear of instability, financial loss, or expulsion from Canada that could follow the loss of their approved caregiver job looms large. Without the protection of permanent residency (PR), the options available to a migrant caregiver to escape abuse or seek recourse for violations will be limited. Consider as an example the 1992-2014 Live-In Caregiver Program. Through this program, a migrant caregiver could come to Canada with an employer-restricted work permit which required them to live with their employer and work in in-home or child care. After 24 months of work within four years, the caregiver could then apply for PR which, if successful, would mean they would be free to work and live elsewhere, access more social programs and services, and generally enjoy more freedoms. A 2-year wait to be eligible to apply for permanent residency, coupled with an inability to change employers and a reliance on that employer for housing gives an employer significant control over their employee’s quality of life. While some industries employing temporary foreign workers allow for workplace inspections, potentially offering a means to identify and counter violations and abuse, the nature of the in-home caregiving industry makes such inspections impractical.[6] The threats of job loss or deportation are well-documented tools of control in these temporary foreign worker programs.[7]

The more recent Home Child Care Provider Pilot and Home Support Worker Pilot programs (2019-2024) present similar opportunities for abuse. In these programs, migrant caregivers needed to accumulate 12 months (changed from 24 months in April 2023) of authorized work in order to apply for PR status,^[8] again meaning an employer could wield significant power over their migrant caregiver employee since leaving their employment could delay or jeopardize a caregiver’s eligibility to apply for PR. ^[9] Through the Home Child Care Provider Pilot and Home Support Worker Pilot programs, migrant caregivers would be dependent on their employer to submit the necessary employment records as part of their PR application process. As such, migrant caregivers temporarily employed in Canada through these programs could be deterred from requesting better wages or conditions, filing complaints, reporting abuses, or leaving their job for fear that their employment records might be withheld.

Despite the removal of the live-in requirement in 2014, the majority of migrant caregivers still reside with employers due to economic necessity (high living costs and low wages) and employer preference.^[10] This arrangement blurs the line between work and private life, exacerbating power imbalances. Live-in migrant caregivers also face limited access to education and training, severe housing instability, and the psychological burden of geographical and social isolation and lack of privacy and autonomy. They often forgo necessary healthcare, have on-call expectations, and work beyond contracted hours without proper compensation or accurate work records.^[11] In some cases, migrant caregivers have reported having their personal documents confiscated and having no control over their personal finances. These risks are common aspects of Canada’s temporary foreign worker programs. In discussing the “asymmetries of power [that]…favour employers and prevent workers from exercising their rights,” the recent UN Human Rights Council report goes as far as to describe Canada’s temporary foreign worker system as “a breeding ground for contemporary forms of slavery”. [12]

Justice Gaps and Obstacles for Migrant Caregivers

While migrant workers technically possess the same employment rights as citizens, their ability to exercise these rights and seek redress is limited, leading to unreported workplace rights violations and abuses. Ensuring the rights of migrant caregivers requires governments to guarantee their access to justice through the elimination of barriers such as lack of information, lack of accessibility to services, and fear of consequences.

Increasing Accessibility to Information 

To better support migrant workers such as migrant caregivers, it is essential to provide comprehensive information about laws, regulations, and policies, including program rules, employment rights, and pathways to PR. Legal information helps workers identify their legal needs and access appropriate services.^[13] Information should be available in multiple languages and widely accessible to workers in various locations to enhance knowledge and enforcement of legal rights. A network of government and non-government actors should work together to provide seamless access to information at all stages of migration.^[14] A user-friendly, multilingual website could offer tailored legal information, a directory of service providers and legal advocates, and direct users to a dedicated hotline.^[15] Written public legal information materials in multiple languages distributed pre-arrival and on-arrival, along with post-arrival orientation sessions conducted by legal advocates, would further ensure that migrant workers are well-informed and better equipped to self-advocate and prevent legal issues.^[16]

Increasing Accessibility to Services

The government needs to ensure the availability of legal services and representation for migrant workers. Proposed solutions include increased funding for community legal and social supports, eliminating discriminatory program criteria, and collecting race-based data to inform policy.^[17] Enhanced legal services should be provided, including mobile legal clinics, one-day courts, dedicated hotlines, and administrative mechanisms with clear timelines for mediation and legal action.^[18] Migrant workers should be allowed to stay and work while their claims are resolved, and the burden of proof in wage disputes should shift to employers.^[19] Partnerships between legal services and community organizations, multilingual information and services, and training for community service providers are all essential.

Preventing Employer Retaliation 

To address concerns about retaliation against migrant workers who file complaints, several measures have been advanced. These include passing legislation that prohibits and punishes retaliatory actions by employers, allowing workers to file anonymous complaints at dispute resolution bodies, and establishing safe houses to protect workers at risk of reprisals.^[20] Enhanced inspections of workplaces and employer-provided accommodations are also recommended to address power imbalances and reduce the pressure on caregivers to self-advocate.^[21] Additionally, closing legislative gaps to ensure migrant workers can seek recourse for rights violations and coordinating with provincial governments to improve the enforcement of employment standards and protections for migrant care workers are also crucial.

Conclusion

In June 2024, it was announced that new pilot programs will be introduced, offering PR on arrival for caregivers coming to Canada.^[22] Unlike the 2019 pilots, these programs will also allow caregivers to work for organizations providing temporary or part-time care.^[23] Furthermore, the education requirements will be reduced from the Canadian equivalency of one year of post-secondary education to a high school equivalency, and the language proficiency requirement will be lowered from CLB Level 5 to Level 4.^[24] These programs replace the expired Home Child Care Provider and Home Support Worker pilots and may even become permanent.^[25]

These changes are welcome as they address many recommended program solutions. However, in the words of Cenen Bagon, from Vancouver’s Committee for Domestic Workers’ & Caregivers’ Rights: “the work is not over…”^[26] Comprehensive legal and policy reforms are still needed to end tied work permits, regularize the status of undocumented workers affected by earlier flawed pilots, implement the numerous access to justice solutions previously outlined, and more.

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Travis Dods
Osgoode Hall Law School J.D. candidate
Canadian Forum on Civil Justice Research Assistant

Lisa Moore
Canadian Forum on Civil Justice Director

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[1] In Canada, the term “migrant worker” generally refers to a temporary foreign worker on a tied or closed work permit. Migrant workers’ access to employment and other rights and government programs and services in Canada is generally limited. Migrant Rights Network, “Migrant Workers in Canada” (2015), online: <https://migrantrights.ca/wp-content/uploads/2015/10/MigrantWorkers_Backgrounder.pdf>.

[2] Indeed, care work is fundamental to the functioning of the Canadian economy, enabling many Canadians, especially women, to participate in the workforce while ensuring quality care for their loved ones. The Canadian Bar Association (CBA), “Re: Home Childcare Provider Pilot (HCCP) and Home Support Worker Pilot (HSWP) Programs” (2024) at 1.

[3] United Nations Human Rights Council, “Report of the Special Rapporteur on Contemporary Forms of Slavery, Including its Causes and Consequences” (2024).

[4] Sarah Marsden, Eric M. Tucker, and Leah F. Vosko, “Federal Enforcement of Migrant Workers’ Labour Rights in Canada: A Research Report” (2020) at 2.

[5] Tami Friesen, “The Live-In Caregiver Program: Inequality Under Canada’s Immigration System” (2003), online: National Association of Women and the Law <https://nawl.ca/the-live-in-caregiver-program-inequality-under-canadas-immigration-system/> and Rupaleem Bhuyan, Lorraine Valmadrid, Esel Laxa Panlaqui, Novabella L. Pendon, and Pearlita Juan, “Responding to the Structural Violence of Migrant Domestic Work: Insights from Participatory Action Research with Migrant Caregivers in Canada” (2018) 33(8) Journal of Family Violence at 3.

[6] United Nations Human Rights Council, supra note 3 at 8.

[7] See for example, United Nations Human Rights Council supra note 3 at 5.

[8] Edana Robitaille, “Work experience requirement cut in half for applicants in Canada’s caregiver pilot programs” (2023), online: CIC News <https://www.cicnews.com/2023/02/work-experience-requirement-cut-in-half-for-applicants-in-canadas-caregiver-pilot-programs-0233054.html#gs.c1dh4f>.

[9] Tami Friesen, “The Live-In Caregiver Program: Inequality Under Canada’s Immigration System” (2003), online: National Association of Women and the Law <https://nawl.ca/the-live-in-caregiver-program-inequality-under-canadas-immigration-system/>.

[10] The Association for the Rights of Household Workers (ARHW), “Migrant Caregivers, Canadian Immigration Policies and Human Trafficking” (2018) at 8.

[11] Women’s Centre of Calgary, “Social Issues Discussion: Migrant Caregivers” (2018), online: <https://www.womenscentrecalgary.org/social-issues-discussion-migrant-caregivers/>.

[12] Supra note 6 at 5.

[13] Alexandra Rodgers, “Envisioning Justice for Migrant Workers: A Legal Needs Assessment” (2018) Migrant Workers Centre at 2.

[14] Ibid. at 49.

[15] Ibid. at 51.

[16] Rodgers, supra note 13 at 51.

[17] Rishika Wadehra, “Equal rights for migrant care workers: The case for immigration policy transformation” (2021) Canadian Centre for Policy Alternatives at 6.

[18] International Labour Organization (ILO), “Fair recruitment and access to justice for migrant workers: Discussion paper” (2022) at 4 and Rodgers, supra note 13 at 52.

[19] ILO, ibid at 4.

[20] Ibid.

[21] Rodgers, supra note 13 at 52.

[22] Immigration, Refugees and Citizenship Canada, “Canada announces new pilot programs to support caregivers and Canadian families, intends to make the caregivers program permanent” (2024), online: <https://www.canada.ca/en/immigration-refugees-citizenship/news/2024/06/canada-announces-new-pilot-programs-to-support-caregivers-and-canadian-families.html>.

[23] Ibid.

[24] Ibid.

[25] Colin Singer, “Canada’s New Caregiver Immigration Pilots To Offer Permanent Residence On Arrival” (2024), online: Immigration.ca <https://www.immigration.ca/canadas-new-caregiver-immigration-pilots-to-offer-permanent-residence-on-arrival/>.

[26] Migrant Rights Network, “Release: Migrant Care Workers Welcome Permanent Resident Status On Arrival” (2024), online: <https://migrantrights.ca/release-migrant-care-workers-welcome-permanent-resident-status-on-arrival/>.