Northern Exposure

Maternity Benefits – No Legal Right for Adoptive Mothers

By Kate McNeill
McCarthy Tetrault

Across Canada, employment standards laws provide for job-protected maternity leave for pregnant employees and parental leave for parents generally. In addition, the federal government provides financial benefits during these leaves through its Employment Insurance Act (EIA).

The Supreme Court of Canada recently declined to review an appeal of a decision of the Federal Court of Appeal that stated that the right to maternity leave and employment insurance benefits is restricted to biological mothers and excludes adoptive mothers.

Maternity and parental benefits
In the Canadian context, there are two key forms of statutory benefits available to new parents – leaves of absence and employment insurance benefits.

While the two forms of statutory benefits serve different purposes (income replacement versus job protection) and arise out of separate pieces of legislation (the EIA versus employment standards laws), both forms of statutory benefits aim to support individuals who take time off work to fulfill their parenting obligations.

Maternity benefits under the EIA and maternity leave provide income replacement and job protection, respectively, for pregnant employees to support them during the time that they’re unable to work as a result of pregnancy and childbirth.

Parental benefits under the EIA and parental leave, on the other hand, provide income replacement and job protection, respectively, for parents during the time that they’re off work as a result of their child-care obligations immediately after the birth or adoption of a child.

The key distinction between maternity protection and parental protection is that while parental benefits and leave are available to any parent – male or female, adoptive or biological – maternity benefits and leave have in the past been available only to biological mothers.

Case before the court: Tomasson v. Attorney General of Canada
In 1999 and again in 2003, Patti Tomasson and her husband adopted a newborn infant. After the adoption of each child, Tomasson applied to the Employment Insurance Commission for maternity and parental benefits. In both cases, she was granted parental benefits but was denied maternity benefits.

The Commission’s rulings were guided mainly by a decision of the Ontario Court of Appeal in Schafer v. Canada (Attorney General) where the court held that pregnancy and childbirth “constituted an inescapable biological reality” and that compensating biological mothers for not being able to work as a result of the physical condition of pregnancy didn’t constitute discrimination against any other person, including adoptive parents.

Tomasson challenged the Commission’s decision to deny her request for maternity benefits on the basis that the statutory maternity benefits provisions in question had a dual purpose: (1) recovery from the physical elements of pregnancy and (2) bonding/attachment between parent and child.

Tomasson argued that the Commission’s application of the statutory maternity benefits provisions resulted in differential treatment between adoptive and biological mothers, allowing biological mothers to spend more time bonding with their child and providing child care than adoptive mothers.

She further claimed that not allowing adoptive mothers the opportunity to bond with their children was an affront to the dignity of adoptive parents and was unconstitutional and contrary to the Canadian Charter of Rights and Freedoms.

Decision of the Federal Court of Appeal
In lengthy reasons, the Federal Court of Appeal ruled that adoptive mothers aren’t entitled to maternity benefits, for the following reasons.

First, the fact that the EIA contained separate provisions for maternity benefits and parental benefits showed a clear legislative intention to distinguish between the two purposes of physical recovery and child care. Had the maternity benefits provisions been intended to cover familial bonding as argued by Tomasson, there would have been no need to include birth mothers in the scope of the parental benefits provisions.

Further, while the court acknowledged that there is a statutory distinction between biological and adoptive mothers, that distinction was legitimate as it seeks to accommodate the needs of pregnant women as a disadvantaged group in the workforce.

The court stated that if adoptive mothers were entitled to maternity benefits, that would “implicitly constitute a finding that birth mothers deserved no more time off work than adoptive mothers, even if they must go through the burden of pregnancy and childbirth.”

Finally, the court noted 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.” As a result, the court held that no reasonable adoptive mother would feel “demeaned by the granting of maternity benefits to biological mothers.”

Decision of the Supreme Court of Canada
On January 24, 2008, Tomasson’s legal battle for maternity benefits came to an end when the Supreme Court of Canada refused to hear her appeal of the Federal Court of Appeal’s decision. As a result, the state of the law in Canada remains the same – only biological mothers are entitled to maternity benefits coverage.

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