Recognized home childcare providers ("RHCPs") provide child care from their homes. Their remuneration comes from the grants paid by the coordinating offices ("CO"), which represent their main source of income, and from the parental contribution of $7 per day.
In finding that RHCPs are self-employed rather than employees CRA first noted the Grimard decision, (2009 FCA 47), which referenced the primary test of subordination, but also stated:
… In determining legal subordination, that is to say, the control over work that is required under Quebec civil law for a contract of employment to exist, a court does not err in taking into consideration as indicators of supervision the other criteria used under the common law, that is to say, the ownership of the tools, the chance of profit, the risk of loss, and integration into the business.
CRA then stated:
In the context of "family day care" where several children are entrusted to the care of a RHCP, parents cannot demand exclusivity in the services rendered by the RHCP to their child. If the parent is not satisfied with the child care given to the child, the parent can withdraw the child from that family day care and file a complaint, but cannot terminate the RHCP.
The same is true of the Quebec government. … The current legislation provides a regulatory framework and does not allow COs to exercise control over RHCPs. …
We understand that RHCPs must provide educational child care (the choice of activities is theirs) while ensuring children in their care with continual protection. The hours of care, within certain government boundaries, are negotiated with parents. They are responsible for providing space, equipment, toys, educational materials and food for meals and snacks. They are also responsible for all their expenses related to their day care activities, including the maintenance of a liability insurance policy. If they themselves cannot provide child care (or a person responsible for replacing them), they are not entitled to any payment from parents or the government. They assume the risk of loss related to the management of their activities. Furthermore, the RHCP is not entitled to any benefits normally associated with an employment (including holidays, sick days and paid statutory holidays).