On January 24, 2008, the Supreme Court of Canada refused to hear the case of a British Columbia mother seeking to change the Employment Insurance Act and employment standards legislation to allow maternity leave for adoptive parents. In refusing to hear the case, the Court upheld the 2007 federal Court of Appeal ruling Tomasson v. Canada (Attorney General) that adoptive mothers do not qualify for maternity benefits because they do not undergo the “physiological and psychological experience” of pregnancy and childbirth.
Under employment standards legislation, birth mothers can take a total of 52 weeks of leave when they combine maternity (17 weeks) and parental leave (35 weeks), and are entitled to receive a total of 50 weeks of EI benefits (combination of 15 weeks of maternity and 35 weeks of parental EI benefits) for that period. However, the same benefits are not available to adoptive mothers. Adoptive mothers only receive 37 weeks of parental leave and 35 weeks of EI benefits.
Recently, the media reported that a movement to challenge the law to provide equal EI benefits to adoptive parents is gaining momentum. The discrepancy in the law is something advocates like the Adoption Council of Canada are hoping will be addressed when the House of Commons standing committee on human resources tables a long-awaited report on adoption in the next few weeks.
To understand why the federal government continues to differentiate between birth mothers and adoptive mothers when allocating EI benefits, you need to take a closer look at the Tomasson case.
Federal Court of Appeal ruling: Tomasson v. Canada (Attorney General)
The main issue in this case was whether the provisions of the Employment Insurance Act, which grants maternity benefits only to biological mothers, discriminates against adoptive mothers and violates their rights under section 15(1) of the Canadian Charter of Rights and Freedoms.
The Charter states that:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
Tomasson argued that the purpose of maternity benefits is to recover from the birth and to bond with the child. She asserted that although she did not need to recover from the birth, she required the time to bond with and attach to the child. She provided evidence regarding the typical attachment process between mother and child, including a child who is adopted early in infancy. Tomasson showed that the process of attachment for children who are adopted early in infancy is similar to that of typical attachment.
The Court stated that the purpose of maternity benefits is:
- To protect women who work from the economic costs of pregnancy and childbirth while they recover from the birth
- To ensure biological mothers experience no disadvantage when they return to the workforce
It is not to encourage bonding or attachment.
The Court also pointed to previous cases stating that it is not necessarily discriminatory to treat biological mothers differently from other parents, including adoptive parents. Although adoptive parents undergo challenges in adopting and caring for their children, these challenges are not as severe and distressing as the physical and psychological challenges facing biological mothers.
The Court applied the test of discrimination and found the following:
- The comparator groups were biological mothers and adoptive mothers
- There was indeed differential treatment between the two groups of mothers within the Employment Insurance scheme
- The differential treatment did not have a purpose or effect that was discriminatory within the meaning of the equality guarantee as set out in the Charter
- It was impossible to find that in enacting maternity benefits provisions in the Act, Parliament demeaned adoptive mothers or cast any doubt on their worthiness as human beings
- In addition, the needs of adoptive parents were accommodated when Parliament enacted parental benefits
Consequently, the distinction in the Employment Insurance provisions was not discriminatory against adoptive parents. In fact, the maternity leave provisions ensure the equality of women who suffer the disadvantage in the workplace due to pregnancy-related matters. The distinction created was legitimate because it sought to accommodate the needs of pregnant women in the workforce as a disadvantaged group. Thus, the distinction did not violate the Charter, and Tomasson’s appeals were dismissed.
Conclusion
Certain groups of individuals can be and are required to be treated differently in order to ensure equality. In this situation, there was a legitimate purpose to the Employment Insurance provisions in order to ensure equality. The test of discrimination was applied; Tomasson was not successful. Consequently, adoptive parents have access to parental benefits, and biological parents have access to both maternity and parental benefits within the Employment Insurance scheme.
Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor
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I agree with the court decision. Granting a full 52 weeks leave for an adoptive mother discriminates against natural fathers who are only allowed 37 weeks. The appropriate comparator group for an adoptive mother is an adoptive father or a natural father. If an adoptive mother is allowed 52 weeks why would an adoptive father not be allowed to request the 52 weeks as well, on the same ground. To allow it to the adoptive mother would discriminate against the natural father.