Supreme Court denies adoptive mother’s bid for maternity leave

Lower courts found the 15-week leave was for recovering from pregnancy and childbirth only

A British Columbia adoptive mother’s fight for maternity benefits has suffered a blow in Canada’s highest court.

Patti Tomasson of Vancouver was given 35 weeks of parental leave when she adopted children in 1999 and 2003 but each time she was denied the 15 weeks of maternity leave normally given to mothers who give birth. Tomasson took the Canada Employment Insurance Commission to court, claiming maternity leave benefits gave birth mothers extra time to bond with their children and denying it to adoptive mothers was discriminatory.

She brought the case to the Supreme Court of Canada after the Federal Court of Appeal in August 2007 found the Employment Insurance Act stipulated maternity leave was intended to allow birth mothers to recover from the “physiological and psychological experience” of pregnancy and childbirth.

The court ruled since adoptive mothers don’t go through that experience, they didn’t qualify for maternity leave benefits under the Act and the right of equal treatment didn’t apply.

However, on Jan. 24, Tomasson’s legal battle came to a halt when the Supreme Court refused to hear the case.

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

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