Federal Court Denies EI Maternity Benefits to Adoptive Mothers

Last week, the Federal Court of Appeal ruled against Pattie Tomasson, an adoptive mother of two in British Columbia, whose application for Employment Insurance maternity benefits was originally disallowed by EI.

Tomasson appealed, arguing to the Court that Canada's Employment Insurance plan discriminates against adoptive mothers by failing to granting to them the 15 weeks of maternity leave that biological mothers are entitled to.

The Court’s analysis, which focused on whether the federal employment insurance provision violated adoptive mothers section 15(1) equality rights under the Charter, concluded the following:

The reasonable adoptive mother would no doubt recognize that by reason of the physiological and psychological experience resulting from pregnancy and childbirth, biological mothers are deserving of special benefits so as to accommodate their particular needs. The reasonable adoptive mother would also no doubt recognize that the maternity benefits are essential to protecting the wellbeing of these mothers so that they can, in due course, effectively return to their employment. The reasonable adoptive mother would also recognize that Parliament has considered and recognized her own needs by the enactment of the parental benefits provisions and that she has in no way been excluded from Canadian society. Hence, the reasonable adoptive mother would not feel demeaned by the granting of the maternity benefits to biological mothers.

The lengthy judgment further states that if this EI provision violates the rights of adoptive mothers, then it would also violate the rights of fathers, both biological and adoptive. Much emphasis was placed on pregnant women in the employment context explaining that pregnant women should have entitlements to reduce the risk of discrimination in the workplace while allowing them opportunity to have time off should the physical effects of pregnancy require it.

In an article on the Adoptive Families of BC website, Tomasson argues that EI serves a dual purpose: (1) it allows a biological mother time to overcome the physical effects of childbirth and (2) it allows mothers time to bond with the new child. She argues:

I find it to be a reasonable conclusion from the evidence that the large majority of pregnant women defer their leave time until after the delivery of the baby and they do so because of their desire to spend as much time as possible with the baby after the baby’s birth…I am satisfied on the evidence that the time spent by a mother in the first year attaching to its mother is critical to the child’s development.

Tomasson intends to appeal the case to the Supreme Court of Canada.

Currently in Ontario, the Employment Standards Act sets out the rights of parents wishing to take pregnancy and parental leave. The maximum duration of pregnancy leave an employer must provide under the Employment Standard Act is 17 weeks, which must be taken consecutively and can commence as early as 17 weeks before the child’s due date and ends on the child’s actual date of birth. Employment insurance benefits for the child can commence as early as 8 weeks prior to the expected birth date of the child, and as late as 17 weeks following the actual date of birth of the child. An employee taking any or all the time off provided under pregnancy leave is eligible to receive maternity benefits from the federal government employment insurance program for up to 15 weeks at the rate of 55% of their averaged insured earnings for up to a maximum of $413.00 per week.

The maximum duration of parental leave an employer must provide under the Employment Standard Act is 37 weeks. Each parent is entitled to this leave. A biological mother, who has taken maternity leave, is only entitled to 35 weeks of parental leave. Parental leave must be started within 52 weeks of the child’s birth, or if you are an adoptive parent, from the day the child is placed with you. An employee taking any or all the time off provided under parental leave is eligible to receive paternal benefits from the federal government employment insurance program for a maximum of 35 weeks between both parents at the rate of 55% of your averaged uninsured earnings up to a maximum of $413 per week. Therefore, if both parents take paternal leave together, then each parent is eligible for 17.5 weeks of benefits. If the parental leave is taken consecutively, then the first parent is eligible for a 37 week leave with 35 weeks of benefits, and the second parent is still entitled to a 37 week paternal leave from work, but will not be entitled to any more benefits. Parents can choose to allocate the benefits in any manner, but not to exceed 35 weeks of benefits between them.

Further information on employment insurance benefits can be found here. Information on leaves provided pursuant to the Employment Standards Act can be found here.

- Annie Noa Kenet, Toronto

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