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Should Parents of Twins Be Entitled to Full EI Benefits for Each Child?

Two years ago, I noted an interesting decision that ruled that when parents have twins, both parents can claim the full 35 weeks’ of eligible employment insurance benefits–one parent could claim 35 weeks for child one, and the other parent can claim 35 weeks for child two.

The parents in that case have informed me that that decision was recently overruled by the EI Umpire.  Here is the Umpire’s decision.

The Legislative Interpretation

It’s an interesting decision by Justice Zinn.  It includes a Charter argument.  The key issue was whether Section 12, and 12(4) in particular, entitles parents of multiple children to EI benefits for each child separately.  Section 12(4) reads:

(4) The maximum number of weeks for which benefits may be paid

a) for a single pregnancy is 15; and

b) for the care of one or more new-born or adopted children as a result of a single pregnancy or placement is 35.

Zinn rules that this language is unambiguous.  It clearly indicates, in his view, that there are a total of 35 weeks of eligible EI benefits available per pregnancy, regardless of how many babies are born.  The legislation permits the parents to split up the benefits between them, but it does not permit parents of twins to each claim 35 weeks entitlement per child.

The Charter Argument

The parent who brought the claim then argued that, if the legislation does not permit parents of twins to each claim benefits separately, that is violates Section 15 of the Charter.  Section 15 says this:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Can you see any ground listed there that would apply to parents of twins?

The answer is No.  However, the Charter also protects against discrimination on analogous grounds (as I explain in my paperette The Charter and Workplace Law: A Guide for Beginners).  An analogous ground is one based on “a personal characteristic that is immutable [unchangeable] or changeable only at unacceptable cost to personal identity.”

Zinn finds that “family status” is an analogous ground, and that being parents of multiple children falls within the meaning of family status.

The next question was whether the EI Act “results in a distinction based on this ground.”   Zinn find that it does, noting that the legislation draws a distinction between “parents of twins and other parents”.   He notes, for example, that parents who adopted a child and gave birth to a child at about the same time would be permitted to claim dual benefits, but the parents of twins cannot.   Moreover, parents of twins receive less benefits “per child” than single parent children.  These examples demonstrate that the legislation does make a distinction between parents of twins and other types of parents.

The next step was to decide if this distinction based on an analogous ground discriminates by  ”creating a distinction that perpetuates prejudice and stereotyping”.  Here Zinn rules that there is no discrimination in the legislation, because it does not perpetuate a prejudice or disadvantage relating to parents of multiple births.  He writes:

There is no evidence that parents of twins are subject to unfair treatment in society by virtue of the fact that they are parents of twins or that  they are not given equal concern, consideration, or respect.  The fact that caring for twins may involve more work than caring for  single newborn does not prove historical disadvantage that perpetuates prejudice and stereotyping.

In Zinn’s view, the legislation does not intend to compensate parents for the work involved in raising children.  It is only intended to partially fund an interruption of earnings caused by taking time off to care for new children.  Zinn also falls back on a very common position taken by judges in Charter cases involving work-related and social legislation, that governments should be afforded considerable latitude in dealing with complex social-economic issues.

Therefore, Zinn rules that the legislation does not infringe the Charter.   I’m informed that an appeal to the Federal Court of Appeal has been launched, so we will keep out eye on this case.

What do you think?  Should parents of multiple births be entitled to claim benefits per each child?  Or is this decision correct in finding that no matter how many children are born, benefits should only be awarded for 35 weeks per couple?

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5 Responses to Should Parents of Twins Be Entitled to Full EI Benefits for Each Child?

  1. Anne Smith Reply

    October 10, 2011 at 10:32 pm

    Thanks for this information. You laid it out very clearly. I must say Zinn is wrong in his interpretation of the third point. I think the EI payments are completely unfair if you have one child and completely indefensible if you have twins. My husband and I have 6 month old boys. He has been paying into EI all his working life, I have been paying into EI all my working life. If he lost his job he would receive benefits. If I lost my job I would receive benefits. But because we have had children, he is not able to receive benefits of his own and has to share mine. How is that fair? Then the unfairness is compounded when you have twins.

  2. Brian Reply

    November 3, 2011 at 9:44 am

    My wife and I are expecting twins in February (we have a 2 1/2 year old son right now) and i find it appaulling that we cannot both receive benefits to care for each child. We have both been paying into EI for almost 20 years and I have never had the need to use mine, and she has only used hers when we had our son. I do not think it is fair that someone who has one child and gets pregnant again while on Maternity leave can go back to work for a few months to get their 600 hours and then go off again for another year and collect all the benefits again. Its like saying having twins is a curse instead of a blessing because if we had of had them just over a year apart then she would have been entitled to a year for each. I think the rules need to be rewritten as now she is going to have to stay home and care for two newborns while i go to work to make money, only to come home and releive her and give her a chance to get some rest. I guess I pay into EI JUST IN CASE I ever need it down the road, and not when i could really use it….

  3. Keri Guelke Reply

    December 10, 2012 at 7:53 pm

    Would you know where I could find an update on the appeal?

    I have two month old twins and it is impossible for me to look after both of them without additional help. Ideally my spouse could take parental leave at the same time and we could adequately care for both. Alternatively a longer leave would also help as childcare for two will be cost prohibitive when I go back to work.

    Thank you.

  4. The Baron Reply

    December 11, 2012 at 10:44 pm

    It may not be legally sanctioned, but it is the human thing to do.

  5. Simran Reply

    August 12, 2015 at 9:29 pm

    Hi I have 2 month old twins and wanted to know if any further decision was made

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