Tomasson: Maternity Benefits for the Biological Mother versus the Adoptive Mother

On August 9, 2007, the Federal Court of Appeal dismissed an application for judicial review of a decision denying an adoptive mother maternity benefits after the adoption of her children. Tomasson v Canada (Attorney General), [2008] 2 FCR 176 is a case involving a s. 15(1) Charter equality rights challenge to provisions of the Employment Insurance Act, SC 1996, c 23, which treats biological and adoptive mothers differently by denying adoptive mothers of maternity benefits.

The applicant, Patti Tomasson, a Vancouver lawyer, adopted two children, Sara, in 1999, and Hannah, in 2003. She applied to the Employment Insurance Commission (the “Commission”) for both maternity and parental benefits, but was denied maternity benefits and granted only parental benefits. As such she received the benefit of 35 weeks paid leave time for parental benefits, to the exclusion of an additional 15 weeks of paid leave that a biological mother would receive for maternity benefits. Tomasson appealed the Commission’s decision denying her maternity benefits to the Board of Referees, which upheld the Commission’s decision. She then re-appealed the matter on the basis that maternity benefits granted only to biological mothers discriminate against adoptive mothers, violating their right to equality under s. 15(1) of the Charter. This appeal was dismissed, however, by the Umpire in 2005, and she went on to appeal the case to the Federal Court of Appeal.

The Federal Court of Appeal considered the issue of whether the Umpire committed a reviewable error in his dismissal of the applicant’s s. 15 Charter challenge. Tomasson claimed that by providing adoptive mothers with only 35 weeks of parental benefits, rather than the full 50 weeks of parental benefits and maternity benefits received by biological mothers, the Act allowed biological mothers to spend more time with their children after birth and deprived adoptive mothers of time to bond with their new children. The Federal Court of Appeal applied the Supreme Court of Canada test set out in Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497 to determine if the Tomasson’s Charter rights had been violated. In order to meet the Law test, the applicant must demonstrate: 1) differential treatment under the law 2) on the basis of an enumerated or analogous ground 3) which constitutes discrimination within the meaning of the equality guarantee. The Federal Court of Appeal held that while the Employment Insurance Act denied equal treatment to both groups, adoptive and biological mothers, it did not have a purpose or effect that was discriminatory within the meaning of the equality guarantee. In coming to this conclusion, the FCA explained that Parliament in enacting the Employment Insurance Act intended to provide income replacement in the form of maternity benefits to biological mothers during their physical and psychological recovery from pregnancy and income replacement in the form of parental benefits to all parents in the initial stages of child care. Thus, the ameliorative purpose of maternity benefits is consistent with s.15(1) of the Charter as the distinction between adoptive and biological mothers was based on the physical and psychological needs and actual circumstances of the biological mothers. In dismissing the applicant’s appeal, the Federal Court of Appeal found that excluding adoptive mothers from maternity benefits did not violate the s. 15(1) equality guarantee and that biological mothers who give up their children for adoption are entitled to maternity benefits, but denied parental benefits, to highlight that the distinction is based on actual needs, rather than the dignity of adoptive mothers.

As stated by Justice Nadon for the Federal Court of Appeal:

The applicant’s rights under subsection 15(1) of the Charter have not been violated. The Reasonable adoptive mother would no doubt recognize that by reason of the physiological and psychological experience resulting from pregnancy and childbirth, biological mothers are deserving of special benefits so as to accommodate their particular needs. The Reasonable adoptive mother would also no doubt recognize that the maternity benefits are essential to protecting the wellbeing of these mothers so that they can, in due course, effectively return to their employment. The reasonable adoptive mother would also recognize that Parliament has considered and recognized her own needs by the enactment of the parental benefits provisions and that she has in no way been excluded form Canadian society. Hence, the reasonable adoptive mother would not feel demeaned by the granting of maternity benefits to biological mothers.

Tomasson, however, clearly disagrees with the Federal Court of Appeal’s decision and plans to seek leave to appeal to the Supreme Court of Canada. She explained:

I am disappointed (with the decision.) I started this action because I couldn’t tell my first daughter about how adoption was perceived in Canada without saying that I had been discriminated against because I was an adoptive mother…Our particular case is about mothers and their relationship with their children and we don’t see any difference between the birth mother’s relationship with her child and an adoptive mother’s relationship with her child.

While the Federal Court of Appeal’s decision is a disappointment for adoptive mothers, if the Supreme Court of Canada grants leave to appeal, Tomasson will be given the opportunity to present her argument before the highest court in Canada. It does seem, however, that the rationale behind the decision to date has been consistently applied with respect to biological mothers who give their children up for adoption. Perhaps it is the reasoning behind the decision to grant maternity benefits that needs to be re-examined or that which lies behind the time allocation for parental benefits. While I have not experienced the physical or psychological effects associated with pregnancy, it does not seem just that adoptive mothers receive 15 weeks less paid leave time as compared to biological mothers. While the adoptive mother may not experience the difficult recovery from pregnancy, she may face other challenges which may require time to adapt to the new situation when introducing a new child to her family.