No mat leave for adoptive moms

Court says legislation concerns employment, not bonding
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 11/01/2007

The Federal Court of Appeal has dismissed a British Columbia mother’s claims for maternity benefits when she adopted each of her two children.

Patti Tomasson and her husband adopted infants in 1999 and 2003. Each time, Tomasson applied for 15 weeks of maternity benefits as well as parental benefits, which were 10 weeks in 1999 and increased to 35 weeks by 2003. Both times she was granted parental benefits but denied maternity benefits.

Tomasson complained to the employment insurance commission that the maternity provisions of the Employment Insurance Act gave differential treatment to biological mothers and allowed them more time for bonding and child care than adoptive mothers. She argued this demeans adoptive parents and is contrary to the Canadian Charter of Rights and Freedoms. After unsuccessful hearings with the commission and the board of referees, she brought her challenge to the Federal Court of Appeal.

Tomasson argued maternity provisions have the dual purpose of bonding with the child as well as recovery from birth, and denying the extra bonding time to adoptive mothers impacts the dignity of adoptive mothers and their children, who should get the same amount of time to bond and form attachments.

The court found the purpose of maternity benefits is to support biological mothers during “the period surrounding childbirth” when it is impossible for them to work because of their physical condition, a condition not experienced by adoptive mothers.

The court noted pregnancy and childbirth “constituted an inescapable biological reality” and compensating biological mothers for not being able to work because of the condition of pregnancy was not discrimination against anyone else.

“The purpose of the provisions is clearly not the encouragement of bonding or attachment,” the court said. “The focus of the legislation concerns the circumstances surrounding employment and unemployment.”

The court did not find adoptive mothers had been the victims of “disadvantage, stereotyping, prejudice or vulnerability in the past” and their entitlement to the same 35 weeks of parental leave as biological mothers showed the legislation takes their needs into consideration and doesn’t discriminate or demean their status in society.

“It is more difficult for biological mothers to cope with motherhood than for adoptive mothers who do not have to recuperate from pregnancy and childbirth,” the court said.

“There are distinct purposes for each of the two income-replacement benefits: One is to provide income while a woman is incapacitated from work due to pregnancy or recuperation; the other is to provide income while parents are caring for and bonding with their children.”

But some see the interpretation of the legislation as too narrow and not taking into account some of the realities of adoption.

“I’m concerned the court heard expert testimony that 12 months is needed for proper bonding and attachment but this was not given more consideration,” says Natalie MacDonald, a partner at Toronto employment law firm Grosman Grosman and Gale.

MacDonald says she is worried the court was preoccupied with the physiological needs of birth mothers and didn’t give the psychological needs of adoptive mothers enough consideration. She says adoptive mothers often need as much or more time than birth mothers for bonding, as they have no attachment to an adopted child at the beginning and the adoption process can be stressful.

“The court’s limited view towards the concerns of adoptive mothers seems to say their problems are not as severe as those of biological mothers,” says MacDonald. This ignores the most important part of child-rearing — bonding and attachment. Not giving the same amount of leave sends the message adoptive mothers are not as worthy as birth mothers, which demeans them, she adds.

Some employers have taken the initiative and topped off parental leave with an additional 15 weeks or an equivalent payment for an employee who adopts, with the understanding the employee must return after the leave. It’s a good incentive to attract and retain top talent and can bring goodwill among employees, but there’s no legal obligation for employers to do this. If adoptive parents aren’t provided with this option, they’re left with the 35 weeks allowed under the act.

Tomasson has said she will appeal to the Supreme Court of Canada, which MacDonald says is the right move.

“The Supreme Court needs to make the decision here, as it’s definitely an issue in the national interest,” she says.

However, it may be difficult for Tomasson to get the result she wants, given previous decisions and the tendency of the courts to follow the exact letter of the law in this area. Hope for adoption advocates may rest in the hands of legislators.

For adoptive mothers to receive a similar amount of leave, the definitions of maternity and parental leave benefits will likely have to be changed in the act. A broader definition that takes into account the importance of the bonding and attachment period would help recognize that adoptive parents have the same responsibilities for their child as biological parents. The outcome has repercussions for any people looking to adopt, whether heterosexual couples, gay couples or singles.

“If we don’t follow the 12-month timeline recommended by the experts, what are we doing for adoptive children? Society needs to change its perception of adoption and think of adoptive parents as real parents,” says MacDonald.

For more information see:

Tomasson v. Canada (Attorney General), 2007 CarswellNat 2405 (Fed. C.A.).

Jeffrey R. Smith is editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter that looks at employment law from a business perspective. For more information visit employmentlawtoday.com.

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