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No Right to Maternity Leave for Adoptive Parents
October 24, 2007

The Federal Court of Appeal recently held that the denial of maternity leave benefits under the Employment Insurance Act to adoptive parents does not violate their Charter rights. The decision also illustrates the distinction between parental and maternity benefits under the Act.

The parent who commenced the legal proceedings and her spouse had adopted two newborn children. She applied to the Employment Insurance Commission for maternity and parental benefits. On both occasions, the Commission granted her parental benefits but not maternity benefits. The parent appealed the Commission’s decision to the Federal Court of Appeal and alleged that her equality rights under section 15 of the Canadian Charter of Rights and Freedoms had been breached because she was treated differently than a biological mother.

The court upheld the Commission’s decision, finding that exact parity between biological and adoptive mothers would lead to discrimination against biological mothers. It held that the distinction created in favour of pregnant women is legitimate because it seeks to accommodate their needs in the workforce as a disadvantaged group.

The court’s conclusion was based on the following reasoning: if adoptive mothers are entitled to maternity benefits, this would implicitly constitute a finding that birth mothers deserve no more time off from work than adoptive mothers, even though they must go through the burden of pregnancy and childbirth. Further, if maternity benefits are made available to adoptive mothers, the court could see no reason why adoptive or biological fathers should not also be entitled to claim those benefits. In the result, the court concluded that the needs of adoptive mothers were sufficiently recognized by Parliament through the enactment of the parental benefit provisions of the Act.

Tomasson v. Canada (Attorney General) (2007), 60 C.C.E.L. (3d) 27