An unprecedented decision from an Employment Insurance Board of Referees panel granting benefits to both parents of newborn twins could have major implications as multiple births become more common.“What the ruling effectively means is, in every situation where the parents qualify for employment insurance benefits . . . every parent of a multiple can make a separate 35-week claim per child,” says Cavalluzzo Hayes Shilton McIntyre & Cornish LLP lawyer Stephen Moreau.
“It is a fairly groundbreaking decision . . . . The Employment Insurance Commission’s interpretation is very clear, which is that one birth gives rise to one claim.”
The case involves Moreau’s client, Christian Martin, who argued he should receive a separate 35-week parental benefit to help his wife, Paula Critchley, care for their newborn twins.
Moreau, a father of twins himself, says Martin and his wife don’t have family in Ottawa and were facing the burden of Critchley having to care for the twins on her own.
“You need two people at home, certainly for the first period of time,” says Moreau.
“[Martin] decided, bar none, he was going to take the time off. It was going to be supremely tough on him and his family financially because he was going to be without work for a period of time. But he would do it and he would apply for his own 35-week benefit.”
While an individual must put in 600 hours in order to make an EI claim, Martin had worked over 2,300, notes Moreau.
“If we are talking about an insurance scheme, he had put in his due. He had paid his premiums.”
All that stood in Martin’s way of receiving benefits, says Moreau, was a section of the act that the government used in its argument stating that once one 35-week claim has been made for one or more children, “that’s the end of the road.”
After Martin’s initial application was rejected, Moreau was retained to prosecute an appeal to a three-member board of referees panel established under the Employment Insurance Act.
The board backed Martin’s case, ruling he could claim a benefit for his daughter Lucie, while his wife could make a separate claim for their other daughter Athena.
“Two claimants making separate claims for separate child are entitled to make separate 35-week claims,” wrote the panel.
“What struck a chord with the board of referees was the fact that it was undeniable on the evidence and it was undeniable in part because the commission did not present their own evidence or contradict the evidence,” says Moreau. “Christian Martin had to take time off of work to raise his children. It was a matter almost of necessity.”
One of the couple’s mothers visited to help raise the twins shortly after their April birth, but Moreau says all three of the caregivers were exhausted despite the added help.
Moreau says he compiled a long list of sociological and psychosocial evidence confirming that a second child adds “an enormous degree of stress” to parents and children and can lead to cognitive, psychological, social, and language difficulties.
“We just felt that the regime wasn’t recognizing that,” he says.
“Our reading was that, if you have one child, then it will be one claim for that child and if you have a second child, there’s a second claim that’s allowable for the second child.”
Moreau suggests the board felt it was reasonable for Martin to take time off work to care for the children, pointing to an aspect of the Employment Insurance Act that allows for a “socially acceptable interruption of earnings.”
Moreau notes that the case could add fire to the current political battle over EI in Canada, which so far has focused on the need for expanded protection following job loss.
But the decision is most timely in light of recent research into the expanding use of in vitro fertilization, he says.
“There has been an increasing prevalence in the last 20 years in Canada and the developed world of twin pregnancies and twin births because people who have been doing IV and spending all that money are implanting two embryos or more rather than one,” says Moreau.
“This issue is going to become even more prevalent as that continues to happen.”
He points to statistics suggesting about three per cent of births in Canada are now multiple births. Between 1994 and 2003, meanwhile, the rate of multiple births increased 35 per cent, he adds.
If the board had ruled the act did limit claims to one per parent group, Moreau says he would have challenged the legislation under the Charter. That argument would have centered on the s. 15 equality clause.
Moreau says the government has 60 days to appeal the decision. A Federal Court judge would act as an umpire in that appeal, he says.
Human Resources and Skills Development Canada did not reply by press time to a request for comment on the case.
Moreau says he hopes the decision sticks.
“I wouldn’t want to be on the wrong side of this issue and I think opposing this is putting yourself on the wrong side,” he says.