Parents of twins and multiples on parental leave should be able to collect employment insurance benefits for each child like they would if an adoption and a birth took place at around the same time, says Toronto employment lawyer Stephen Moreau.
At the very least these parents ought to be allowed to argue their position in court, adds Moreau, partner with Cavalluzzo Shilton McIntyre Cornish LLP.
“The issue of whether the parents of twins or triplets should get parental leave for each child is near and dear to me. I do think they should,” Moreau, the father of nine-year-old twins, tells AdvocateDaily.com.
It was for that reason that he decided to take on client Tania Zulkoskey’s case pro-bono.
Zulkoskey and her partner, a woman, both tried to become pregnant to start a family together. Zulkoskey succeeded and ultimately had twins.
Parents are entitled to a leave of absence of 35 weeks as well as 35 weeks of employment benefits after giving birth, Moreau says. That time can be taken by one parent or split between two parents. If there are multiple children, but only one event, the parents can only access one 35-week term of benefits.
But, says Moreau, if two children result from two different events, such as natural birth and adoption, at around the same time and there are two parents, they can each access 35 weeks of employment benefits. That, he says, makes the current system unfair.
The issue has been previously challenged. In Martin v. Canada (Attorney Genera) 2013 FCA 15 (CanLII) the father of twins appealed the denial of his request for a second set of benefits in addition to those received by his spouse. But the court found that the Employment Insurance Act provides parental benefits per single pregnancy or adoption, not per child and that the scheme is not discriminatory.
In Moreau’s recent case, Federal Court of Appeal Zulkoskey v. Canada (Employment and Social Development), 2016 FCA 268 (CanLII), his client brought a challenge under the federal Human Rights Act. The Federal Court dismissed her attempt because of the decision in Martin.
But Moreau took the case to the Federal Court of Appeal, which decided in November that her claim has nothing to do with Martin and she should be allowed to file her own complaint.
“It’s just a fundamental principal we have here that everyone gets their day in court,” says Moreau.
That leaves the situation in the hands of the Human Rights Commission, which will now examine the merits of the claim to determine whether or not to pursue it.
Another issue his client's claim raises is that the underlying statute is discriminatory.
“It has been known to happen, it has been successful before. Parts of the Employment Insurance Act, for example, have been declared invalid on human rights grounds,” says Moreau. “If they can ultimately get before the Human Rights Tribunal and get a finding of discrimination then parliament would have to revisit the legislation.”
According to an estimate by the Parliamentary Budget Office, if separate employment benefits were awarded to parents of multiples, it would result in an additional cost of $40 million to $50 million per year, which is not significant in a large EI fund, says Moreau.