Digest of Benefit Entitlement Principles - Chapter 13

13.1.0    PAYMENT OF PARENTAL BENEFITS

13.1.1     Authority
13.1.2     Who Can Receive Parental Benefits
13.1.3     Waiting Period
13.1.4     To Care For a Child
13.1.5     Week in Which the Child is Born, or Actually Placed With the Claimant
13.1.6     When Parental Benefits are Payable
13.1.7     The Number of Weeks for Which Parental Benefits May Be Paid
13.1.8     Earnings While on Parental Benefits


13.1.0    PAYMENT OF PARENTAL BENEFITS

On January 1, 1984, the Unemployment Insurance legislation began to provide for the payment of benefits to a claimant, man or woman, who remained at home to care for a child who was being adopted. Three years later paternity benefits were introduced so as to provide support for the father of a newborn who stayed at home to care for his child but only under very specific conditions.

Since that time the legislation has evolved in response to jurisprudence and challenges under the Charter of Rights and Freedoms as well as recognition of changes in the labour market and in society. On November 18, 1990 adoption and paternity benefits were replaced by parental benefits, which allow payment of benefits for 10 weeks with the possibility of extension to 15 weeks¹. Parental benefits were limited to 10 weeks because there is no incapacity involved and because it was determined to be an appropriate period of time to care for a new child.

At the same time, eligibility was expanded so that parental benefits could be paid to either parent, or be divided between them, and may even be collected simultaneously. The intent being to allow the parents to determine who will remain at home to care for their newborn child or to care for a child they are adopting. A multiple birth or multiple adoption, for purposes of unemployment benefits, is treated as a single birth or a single adoption².

Benefits for biological or adoptive parents were further expanded where a child was born or placed in their care for the purpose of adoption on or after December 31, 2000. The changes introduced:

• allow parents to receive benefits for up to one year while caring for the child³,
• defer the waiting period of the second parent claiming parental benefits where the first parent has served a waiting period and claimed maternity and/or parental benefits⁴,
• allow parents more flexibility and continued attachment to the labour force by allowing them to have earnings of up to 25% of their benefit rate or $50.00, whichever is higher, as is the case with regular benefits⁵, and
• improve access to special benefits by reducing qualification from 700 to 600 hours of insurable employment⁶.

The implementation of the Quebec Parental Insurance Plan (QPIP) on January 1, 2006, has brought about many changes in the rules⁷ respecting the payment of benefits relating to the birth or adoption of a child, which were until then under the jurisdiction of the Employment Insurance (EI) program throughout Canada.

This is no longer the case generally in Quebec since January 1, 2006, as a result of the agreement entered into by the governments of Canada and Quebec, which provides among other things that:

• the Quebec Parental Insurance Plan applies to parents residing in Quebec in respect of any new claim for benefits relating to a birth or an adoption occurring on or after January 1, 2006;
  
  
• the Employment Insurance program continues to apply to parents residing in Quebec for any claim relating to a birth or an adoption covering a period prior to January 1, 2006, and for any birth or adoption that occurred before January 1, 2006;
  
  
• the Employment Insurance program continues to apply to parents residing outside Quebec in respect of any claim relating to a birth or an adoption.

This does not mean, however, that maternity or parental benefits under the Employment Insurance program will cease to be paid in Quebec or that the impact of the implementation of the Quebec Parental Insurance Plan will be limited to Quebec⁸. 

Among other rules, a new principle of equivalence⁹ has been established to guarantee equity in the processing of claims for Employment Insurance benefits that are filed throughout Canada, including Quebec.

This principle, which extends to benefits paid under a provincial plan a recognition that is similar to maternity or parental benefits paid under the EI program, applies to any future claim for EI benefits.

1. EIA 12(7);
2. EIA 12(8);
3. EIA 12(5) & (6);
4. EIA 23(5);
5. EIA 19(2)
6. EIA 6(1)
7. Refer to the Appendix to Chapter 12 for more information;
8. Refer to 1.2 of the Appendix to Chapter 12;
9. Refer to 3.4 for more information.

13.1.1    Authority

In order to receive parental benefits under the EI program, the claimant must show that he or she meets the entitlement conditions and the payment provisions of these benefits that will be explained as the chapter proceeds.

The legislative authority to pay parental benefits reads as follows¹:

Notwithstanding section 18, but subject to this section, benefits are payable to a major attachment claimant to care for one or more new-born children of the claimant or one or more children placed with the claimant for the purpose of adoption under the laws governing adoption in the province in which the claimant resides.

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1. EIA 23(1).

13.1.2    Who Can Receive Parental Benefits

Parental benefits under the EI program are provided for the purpose of caring for a new-born child or an adopted child and as such, may be paid to either of the biological or adoptive parents, or may be shared between the parents¹ to a combined maximum of 35 weeks of benefits.²

The individual claiming the parental benefits must have experienced an interruption of earnings³, and be major attached.⁴ A new entrant or re-entrant (NERE) to the labour force can qualify for parental and other special benefits with 600 hours of insurable employment in the qualifying period⁵. The claimant must provide a declaration as to the newborn's date of birth, or, when there is an adoption, the child's date of placement for the purpose of the adoption, and the name and address of the adoption authority.

In situations where a violation had been assessed on a previous claim, the claimant will require more than 600 hours of insurable employment during the qualifying period to be eligible for special benefits. Violations range from minor to subsequent⁶ with a related increase in the number of hours required to qualify for benefits⁷.

Placements made by an agency or individual authorized under the provincial adoption laws to make placements, are recognized under the EI Act as adoptions. In addition to provincial adoptions, the legislation in several provinces also covers inter-provincial and international adoptions. Parental benefits may therefore be paid to the claimant with whom a child from another province or another country has been placed for the purpose of the adoption, provided that such placement has been made in accordance with the laws that apply in the province where the claimant resides.

A placement may also be accepted when, instead of an adoption, the claimant has been granted permanent, legal custody where it is in the best interests of the child, as set out in the laws that apply in the province where the claimant resides. In other words, a situation that is effectively, but not technically an adoption may qualify for parental benefits⁸. Parental benefits are also payable in respect of a native custom adoption when the adoption is governed by the Indian Act.

New rules⁹ have been in effect since January 1, 2006, following the implementation of the Quebec Parental Insurance Plan. There is now a regulatory provision¹⁰ providing that a person who is entitled to receive benefits from a provincial plan in respect to the birth or the adoption of a child is disentitled to maternity or parental benefits under the Employment Insurance program in respect of this same birth or adoption.

A regulatory provision¹¹ was also made respecting individuals claiming benefits under different plans, as in the context where one of the parents is residing outside Quebec and the other parent is residing in Quebec at the beginning of the period for which the first parent claims benefits in respect of the birth or adoption of their child.

Eligible parents can share then the number of weeks of parental benefits payable under the EI program and the parental or adoption benefits payable under the Quebec Parental Insurance Plan for a same birth or adoption of a child.

In all cases, according to the regulation¹², the maximum number of weeks of benefits that can be paid to the EI parent cannot exceed the maximum number of 35 weeks less the number of weeks of provincial benefits that have been paid to the parent governed by the provincial plan, taking into account, where appropriate, the weeks of benefits that are paid at the accelerated rate under the provincial plan.

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1. EIA 23(4);
2. EIA 12(4) (b);
3. EIA 7; EIR 14(2);
4. EIA 23(1);
5. EIA 6
6. EIA 7.1(5);
7. EIA 7.1(1); EIA 7.1(2) ; see Section 18.5.3, "The Increased Entrance Requirements Sanction"
8. Jurisprudence Index/parental benefits/for the purpose of adoption/.
9. Refer to the Appendix to Chapter 12 for more information;

13.1.3    Waiting Period

As already indicated parental benefits are unique in that they may be paid to either of the biological or adoptive parents or may be shared between the parents¹. Like all claims for unemployment benefits a waiting period must be served before parental benefits can be paid² under the EI. 

The waiting period may be waived if, after having ceased work, the claimant received sick leave paid by his employer³ or when the claimant works for more than one employer, if he was paid sick leave pay after ceasing work from one of these employers and had an interruption of earnings for the same employer. Additionally moneys payable by an employer as parental leave pay are not considered to be earnings in the waiting period⁴.

The Employment Insurance legislation provides that only one waiting period must be served in respect of the same child. In situations where the first parent made a claim for benefits, served the waiting period and during this benefit period, claimant maternity and/or parental benefits, the waiting period can be deferred for the second parent claiming parental benefits⁵.

However, the deferred waiting period for the second parent would be served following receipt of parental benefits in situations where regular or sickness benefits are subsequently claimed. Furthermore, when parents decide to share the parental benefits of the EI and apply for benefits at the same time, they may choose which one will serve the waiting period. The other parent may then have the waiting period deferred.

It should be noted that a claimant is only required to serve one waiting period when claiming benefits in respect of one new-born or adoptive child. In the event that a second benefit period is required to ensure the claimant can receive all parental benefits the legislation allows, the waiting period can be deferred on the second claim.

Waiving the waiting period should not be confused with deferring the waiting period. In the event that the waiting period was waived for the first parent, the second parent would be required to serve the waiting period as a waiting period was not previously served in respect of the same child. The only exception to this would be in a situation where the second parent also received sick leave pay from his employer or when the claimant works for more than one employer, if he was paid sick leave pay after ceasing work from one of these employers and had an interruption of earnings for the same employer, the conditions have been met to waive the waiting period.

A regulation⁶ made on January 1, 2006, in the context of the implementation of the Quebec Parental Insurance Plan⁷ authorizes waiving the waiting period where benefits have been paid under a provincial plan such as the QPIP.

[July 2003]

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1. see 13.1.2, "Who Can Receive Parental Benefits";
2. EIA 13;
3. EIR 40(6);
4. EIR 39(3)(b);
5. EIA 23(5)
6. Refer to the EIR 76.22;
7. Refer to 3.1 of the Appendix to Chapter 12

13.1.4    To Care For a Child

Under the EI program, parental benefits are payable to one or both parents¹

to care for one or more new-born children . . . .or one or more children . . . . . . placed with the claimant for the purpose of adoption . . . .

Parental benefits therefore provide a means of financial support that allows a parent(s) to be away from his or her work to care for the child.

The parental legislation has evolved over the years to where it no longer makes any reference to "remaining at home" to care for the child. It is unreasonable to expect a parent to cease all regular activity and simply remain at home for 35 weeks doing nothing more than caring for the child. While the intent of the legislation is to allow the parent to bond with and care for the child, the requirement of caring for the child is met when the parent is providing for the needs of the child. This means a claimant may leave the home for periods of time and continue to receive parental benefits, whether the child is with the parent during these activities or not. A reasoned approach should be taken and each case should be decided on its own merit having regard for the intent to allow a parent to care for the child. It has been argued that a child who is admitted to hospital can not be considered to be in the care of the parent, therefore no entitlement to parental benefits exists. The reality of this situation is that the parent continues to be responsible for the child. Furthermore, in many cases the parent's presence and assistance is specifically requested by either the doctor or the hospital.

This same reasoning holds true for those claimants who decide to take a vacation while in receipt of parental benefits. Because payment of these benefits has no tie to availability, a claimant can indeed be on vacation and be entitled to parental benefit. Similarly, the reason for separation from employment is not a factor in determining entitlement to parental benefits as any disqualification imposed on a claim will be deferred or suspended during receipt of parental benefits².

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1. EIA 23(1).
2. See 13.3.4 While disqualified or Disentitled

13.1.5    Week in Which the Child is Born, or Actually Placed With the Claimant

Under the EI program, the legislation provides that payments of parental benefits can only begin¹

. . . with the week in which the child or children of the claimant are born or the child or children are actually placed with the claimant for the purpose of adoption . . . .

In the case of a biological child the parent(s) may claim EI parental benefit from the week in which the child is born.

In the case of an adoption, placement for the purpose of adoption is distinguished from the adoption itself. The legislation recognizes this distinction and provides that parental benefits in respect of an adoption, are payable beginning with the week in which the child is actually placed with the claimant for the purpose of adoption, not from the day that the adoption certificate is issued. The adoption process covers a period during which the legal rights and obligations normally in place between the biological parents and the child cease to exist and are replaced by similar rights and obligations between the adoptive parent(s) and the child.

In cases of international adoption, the adoptive parent may be required to personally bring the child from the country where that child is located, or even spend a certain amount of time there in order to comply with the adoption rules of that country. The adoptive parent who is in another country for the purpose of adoption may receive parental benefits starting at the time that the child is actually placed with the claimant, that is, starting at the time that the child is physically under the claimant's care. The placement must be made in accordance with the applicable provincial laws.

Jurisprudence² has held that the child cannot be considered as actually placed for the purpose of adoption unless the adoption process has begun. For example where foster care is later converted to adoptive custody the parental benefit period would begin in the week in which, according to the adoption laws of the province the claimant resides in, the adoption process began; not the date that the child was physically placed in the claimant's care as a foster child. In another example the spouse of the biological parent adopts the child after a year or two of the family living together in a household. The concept of actually placed with the claimant for the purpose of adoption only begins with the start of the adoption process, even though the child has lived with the adoptive parent for a lengthy period.

A declaration signed by the claimant identifying the adoption authority and the date of placement is sufficient proof that an adoption is proceeding. Proof of the placement is requested only in circumstances in which questions arise with respect to the adoption.

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1. EIA 23(2)(a);
2. Jurisprudence Index/parental benefits/actually placed/.

13.1.6    When Parental Benefits are Payable

Parental benefits are payable at any time during the benefit period and parents have a 53 week window to receive these benefits¹. These weeks do not have to be consecutive. Of course even when the claimant is within this window, no benefits are paid if the claim has exhausted by duration. Parental benefits are not payable or cease to be payable on the death of the child.

The 53 week window to receive parental benefits begins with the week in which the child is born or placed with the claimant for purposes of adoption and ends 52 weeks after the week of birth or actual placement.

Parental benefits cannot be paid in advance of the child's birth or in advance of the actual placement of the child.

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1. EIA 23(2) , see inter alia,EIR 76.09 in the context of the implementation of the Quebec Parental Insurance Plan;
2. EIA 10(12), 23(3), 23(3.1); also refer to 3.4.1.5 of the Appendix to Chapter 12

13.1.7    The Number of Weeks for Which Parental Benefits May Be Paid

Under the EI program, a qualified claimant¹ may receive up to 35 weeks² of parental benefits in a benefit period. Furthermore, the global maximum number of weeks of parental benefits paid in respect of the same child cannot exceed 35. As a result of that when the parents share these EI benefits, the total number of weeks they can receive between them is 35³. Claimants making application for parental benefits must provide the name and social insurance number of the other parent for cross-reference purposes.

In some cases eligible parents can also share the number of weeks of parental benefits payable under the EI program and the parental or adoption benefits payable under the Quebec Parental Insurance Plan for a same birth or adoption of a child⁴.

In addition there is a limit to the number of weeks of special benefits that a claimant may receive⁵.

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1. see 13.1.2, "Who Can Receive Parental Benefits";
2. EIA 12(4)(b);
3. EIA 23(4)
4. Refer to 13.1.2
5. Refer to 13.2.1

13.1.8    Earnings While on Parental Benefits

In the past when claiming special benefits, earnings that were allocated to any week following the waiting period were deducted dollar for dollar from benefits¹. When parental benefits were extended to 35 weeks, it was recognized that a greater flexibility was necessary to allow parents to retain some work attachment while in receipt of these benefits and at the same time allow businesses to benefit from their employee's expertise. This could also help ease the employee's transition back into the workforce after time spent home with a young child.

To facilitate this, the allowable earnings provisions were extended to parental benefits. Claimants may earn up to 25% of their weekly benefit rate or $50 where the benefit rate is less than $200, without any deduction from benefits².  Earnings in excess of the 25% or $50 will be deducted dollar for dollar.

A regulatory provision³ was made on January 1, 2006, in the context of the implementation of the Quebec Parental Insurance Program.⁴ It stipulates that the EI maternity or parental benefits that may be paid in respect of any week for which a person has received or is entitled to receive benefits from the provincial plan are reduced by an amount equal to those provincial benefits in addition to any other deduction provided for.⁵

 

Thus, an amount equivalent to whatever QPIP provincial benefits a person has received or is entitled to receive in a given week will be deducted in full from whatever EI maternity or parental benefits for which the person may be eligible for that week in certain situations.⁶

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1. EIA 23(3);
2. EIA 19(2)
3. EIR 76.16  and 76.17
4. Refer to the Appendix to Chapter 12;
5. i.e., any deduction provided for in 19, 22(5) and 23(3.5) of the EIA;
6. EIR 76.09(2) ; refer to 3.3.2 of the Appendix to Chapter 12