No maternity leave for adoptive mothers, court rules

Court says the physical needs of biological mothers after giving birth entitles them to extra 15 weeks of leave

The issue of maternity leave and the rights of adoptive families has come to the forefront recently with the saga of British Columbia mother Patti Tomasson. Tomasson adopted infants in 1999 and 2003 and in each case requested and was denied maternity leave benefits in addition to the parental leave benefits adoptive parents are normally entitled to.

Tomasson took the matter to the Employment Insurance Commission, claiming the denial of the extra 15 weeks of maternity leave benefits given to birth mothers discriminated against adoptive mothers and their need to bond with their babies. Her complaint and subsequent appeals were dismissed, most recently by the Federal Court of Appeal. The court ruled maternity leave benefits, as defined in the Employment Insurance Act, are for the sole purpose of recovering from child birth and thus denying them to adoptive mothers is not discrimination.


The Federal Court of Appeal has dismissed a British Columbia mother’s claims for maternity benefits when she adopted her two children in finding maternity benefits for biological mothers are not discriminatory against adoptive mothers.

Patti Tomasson and her husband adopted infants in 1999 and 2003. Each time, Tomasson applied for 15 weeks of maternal 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. As a result, she took unpaid leave roughly equal to the maternity benefits period after her parental benefits expired.

Tomasson complained to the employment insurance commission that the maternity provisions of the Employment Insurance Act gave differential treatment to biological mothers and allow them more time for bonding and childcare than adoptive mothers. She argued this demeans adoptive parents and is contrary to the Canadian Charter of Rights and Freedoms. The commission and the board of referees on appeal both ruled she wasn’t entitled to maternity benefits because she wasn’t the biological mother. Her subsequent appeal of the board’s decision was also dismissed and she brought her challenge before the Federal Court of Appeal.

The Act outlines paid benefits for the 15-week maternity period “because of pregnancy” and this can start up to eight weeks before birth. Tomasson argued maternity provisions have a dual purpose of bonding with the child as well as recovery from birth, and denying the extra bonding time to adoptive mothers is discriminatory and impacts the dignity of adoptive mothers and their children, who should get the same amount of time to bond and form attachments.

The court referred to Schafer v. Canada (Attorney General), where the Ontario Court of Appeal found 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. Though the period of recovery varied for different mothers, the 15 weeks was established to encompass as many women as possible in the workforce.

The court agreed the Act does differentiate between biological and adoptive mothers and does not provide equal treatment. However, it 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 also found maternity benefits are available to biological mothers who give up their children for adoption, further proof the benefits are intended to replace the income of women recovering from the limitations resulting from pregnancy and childbirth so they don’t have a disadvantage when returning to work.

“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. It also said if adoptive mothers were entitled to maternity benefits, all of that time would be devoted to caring and bonding with their child, while biological mothers would be spending at least part of that time recovering. This would have the effect of discriminating against biological mothers.

“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.

The court found “the reasonable adoptive mother” would realize the experience of childbirth entitles biological mothers of special benefits to accommodate their special needs. It concluded the provision of parental benefits to all parents recognizes the needs of adoptive parents and doesn’t discriminate or demean their status in society.

“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.”

Decision causes disappointment and concern

The court’s decision was controversial for many who see the interpretation of the legislation as too narrow and not taking into account some of the realities of adoption. “I’m concerned expert testimony (from a Dr. LeMare in the hearing) that 12 months is needed for proper bonding and attachment was not given more consideration,” says Natalie MacDonald, a partner at Toronto employment law firm Grosman Grosman and Gale. “There was no recognition of the evidence stating a proper period of bonding and attachment is critical to a child’s development. It was swept under the rug.”

MacDonald is worried the court was too 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, while birth mothers have a chance to bond during their pregnancy.

Being unable to conceive a child can be a traumatic experience, MacDonald explains, and adopting a child can bring on psychological and sometimes hormonal changes much like a birth mother experiences.

“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. The message is that birth mothers deserve more time off than adoptive mothers, which seems to gloss over expert witness Dr. LeMare’s testimony that research shows the first 12 months are extremely important to forming a bond and attachment and adopted infants have no difference in the attachment process. Not giving the same amount of leave sends the message adoptive mothers are not as worthy as birth mothers, adds MacDonald, which is demeaning to adoptive mothers.

Some employers have taken the initiative in these circumstances and top 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 50 weeks. It’s a good incentive to attract and retain top talent and can bring good will 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.

For more information see:

Tomasson v. Canada (Attorney General), 2007 CarswellNat 2405 (Fed. C.A.).
Schafer v. Canada (Attorney General), 1997 CarswellOnt 2744 (Ont. C.A.).

Legislative change may be the answer for adoption advocates

What does the Federal Court of Appeal’s decision mean for adoption advocates and parents? Patti Tomasson has vowed to appeal to the Supreme Court of Canada, which Natalie MacDonald agrees is the right move.

“The Supreme Court needs to make the decision here, as it’s definitely an issue in the national interest,” says MacDonald. 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 get close to an equal amount of leave, the definitions of maternity and parental leave will likely have to be changed in the Act. A broader definition which takes into account the importance of the bonding and attachment period would go a long way towards recognizing adoptive parents should have the same amount of time off work with their child as biological parents. The outcome has repercussions for those looking to adopt, whether heterosexual couples, gay couples or singles.

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