Digest of Benefit Entitlement Principles Chapter 24 - Section 16

24.16.0 Compassionate care benefits

24.16.1 Introduction

Compassionate care benefits allow an eligible claimant the opportunity to receive income support while absent from their business to provide care or support to a seriously ill family member with a significant risk of death within 26 weeks^{Footnote 1}.

The legislative authority^{Footnote 2} to pay compassionate care benefits reads as follows:

"…benefits are payable to a self-employed person if a medical doctor has issued a certificate stating that

1. a family member of the self-employed person has a serious medical condition with a significant risk of death within 26 weeks
   1. from the day on which the certificate is issued, or
   2. in the case of a claim that is made before the day on which the certificate is issued, from the day from which the medical doctor or nurse practitioner certifies the family member's medical condition; and
2. the family member requires the care or support of one or more other family members."

24.16.2 Family members who can receive compassionate care benefits

The definition of a family member for purposes of entitlement to Compassionate Care Benefits was established by section 152.01 of the EI Act ^{Footnote 3} and expanded to cover a larger circle of family as detailed through Regulation 1(3)^{Footnote 4}.

Those who meet the definition of "family members" for which a claimant can qualify for Compassionate Care Benefits include:

• Spouse or common-law partner^{Footnote 5}
• Child, their spouse or common-law partner
• Child of spouse or common-law partner, their spouse or common-law partner
• Parent, their spouse or common-law partner
• Parent of spouse or common-law partner, their spouse or common-law partner
• Sibling, step-sibling, their spouse or common-law partner
• Sibling, step-sibling of spouse or common-law partner
• Grandparent, their spouse or common-law partner
• Grandparent of spouse or common-law partner
• Grandchild, their spouse or common-law partner
• Grandchild of spouse or common-law partner
• Uncle, aunt, their spouse or common-law partner
• Uncle, aunt of spouse or common-law partner
• Nephew, niece, their spouse or common-law partner
• Nephew, niece of spouse or common-law partner
• Current or former foster parent
• Current or former foster parent of spouse or common-law partner
• Current or former foster child, their spouse or common-law partner
• Current or former ward^{Footnote 6} Current or former ward of spouse or common-law partner
• Current or former guardian^{Footnote 7} , their spouse or common-law partner or
• A person who is considered to be like a close relative, whether or not related by blood, adoption, marriage or common-law partnership

24.16.3 First entitlement condition: Proof of seriously ill family member

A claimant requesting compassionate care benefits must submit a medical certificate signed by a medical doctor or nurse practitioner treating the seriously ill family member^{Footnote 8}, before payment is approved.

The medical certificate requires the medical doctor or nurse practitioner to attest to the fact that his or her patient, the seriously ill family member, has the following two conditions. The patient:

1. has a serious medical condition with a significant risk of death within 26 weeks, and
2. requires the care or support of one or more family members

Where the seriously ill family member resides outside of Canada, a medical certificate issued by a medical doctor or nurse practitioner recognized by the appropriate government authority with similar qualifications to a medical doctor is acceptable.

The certificate will identify the seriously ill family member - the doctor's patient - by providing the complete name, address and date of birth of the patient. When more than one claimant will share the compassionate benefits, only one certificate is required. If more than one medical is submitted, it is the first valid certificate that will determine the 52-week window^{Footnote 9}.

The medical profession is not authorized to release medical information without the patient's consent or unless required by law. A section was included on the medical certificate to authorize doctors to release medical information on the patient to family members claiming compassionate care benefits and to the Commission. This section of the certificate is signed by the patient authorizing the release of medical information or a parent or legal representative where the patient is unable to sign due to a physical or mental condition.

A medical certificate without the patient or representative signature to authorize the release of medical information will nevertheless be accepted where the patient information is completed and the doctor has attested to the two conditions of entitlement.

24.16.4 Second entitlement condition: Care or support of seriously ill family member

Care or support of a seriously ill family member includes^{Footnote 10}:

1. directly providing or participating in the care of the family member, or
2. providing psychological and emotional support to the family member, or
3. arranging for care of the family member by a third party care provider.

The definition of care or support includes direct as well as indirect care and support. It also includes situations where the claimant simply spends time each day with the seriously ill family member in the home, a hospice or a medical facility.

Any period during which an individual is claiming this type of benefit is a time of great personal stress and the claimant may require a short break from providing care or support for the seriously ill family member in order to deal with this stress. Therefore benefits should not be denied where the claimant does not actually deliver care for a few days. A reasonable approach should be taken and each case should be decided on its own merit.

There will be situations where the claimant resides in a different geographical area than the seriously ill family member and may arrange for the delivery of care or may provide psychological and emotional support from wherever he or she resides. The legislation provides the opportunity to respond to these situations.

In any situation where it becomes apparent that the claimant is not providing care or support, based on the definition above, the claimant would be disentitled^{Footnote 11} from benefits. This would apply whether the claimant is in the same geographical area as the seriously ill family member or not.

24.16.5 The number of weeks for which compassionate care benefits may be paid

The legislation provides two limits to the maximum number of weeks payable for compassionate care benefits.

1. The first is a maximum of 26 weeks of compassionate care benefits payable within a benefit period^{Footnote 12}.
2. The second is a maximum of 26 weeks in a 52 week window in relation to the seriously ill family member.

These limitations apply whether the benefits are claimed by one individual or shared with another family member^{Footnote 13}.

24.16.6 Waiting period

A one-week waiting period must be served when an initial benefit period is established for compassionate care benefits^{Footnote 14}. However, only one waiting period must be served in relation to each seriously ill family member and 52-week window, regardless of the number of claimants making a claim for benefits.

When these benefits are shared, the first eligible person making an initial claim for benefits is required to serve the waiting period. The waiting period may be deferred for the other family members sharing this new benefit, provided that a waiting period has been served by another claimant in relation to that seriously ill family member and during the same 52-week window^{Footnote 15}.

Where two claimants make a claim for compassionate care benefits at the same time in relation to the same seriously ill family member, the claimants will be required to choose which one will serve the waiting period^{Footnote 16}.

It should be noted that based on the wording of the legislation the first claimant claiming compassionate care benefits must serve a 1-week waiting period in order that another family member can have the waiting period deferred.

The current policy on waiving the waiting period continues to apply^{Footnote 17}. In situations where the waiting period was waived for the first person claiming compassionate care benefits, the second person establishing an initial benefit period for the same seriously ill family member within the same window, will be required to serve the waiting period. However, if the second claimant also qualifies to have the waiting period waived, this will be done.

[ June 2012 ]

24.16.7 Period during which compassionate care benefits are payable

Compassionate care benefits are payable at any time during the benefit period and a claimant has a 52 week window to receive these benefits^{Footnote 18}. The first valid medical certificate provided for the seriously ill family member will be used to identify the 52-week period during which compassionate care benefits can be claimed for the seriously ill family member.

Payment of compassionate care benefits cannot begin before:

• the day of issuance of the first valid medical certificate which is filed with the Commission; or
• in the case of a claim that is made before the day the certificate is issued, the day from which the medical doctor or nurse practitioner certifies the patient's medical condition.

Compassionate care benefits cannot be paid during the period for which family caregiver benefits have been previously approved for the same patient. This period is called the family caregiver window and does not close until the full weeks of family caregiver benefits have been paid or the 52-week family caregiver window has closed.

The 26 weeks of compassionate care benefits do not have to be consecutive and can be taken intermittently over the 52-week period in a manner that is most convenient for the claimant. Of course, even when the claimant is within this window, no benefits can be paid if the claim has expired, if the maximum entitlement on the claim has been reached or the 26 weeks payable for the seriously ill family member has been paid.

In situations where the seriously ill family member dies before the end of the 52 week window or before the 26 weeks of compassionate care benefits have been paid, benefits would cease to be payable at the end of the week in which the seriously ill family member dies.

24.16.8 Sharing compassionate care benefits

The legislation provides that the 26 weeks of compassionate care benefits in relation to the seriously ill family member can be shared by one or more claimants and that the weeks are to be divided as agreed to by those claimants^{Footnote 23}.

The 26 weeks of benefits can be claimed anywhere within the 52 week window^{Footnote 24}.

When these benefits are shared, the Commission staff must be able to determine whether any other family member is claiming or has claimed compassionate care benefits to care for the seriously ill family member and also the number of weeks being claimed by other family members.

However, when family members cannot come to an agreement, the remaining weeks will be divided by the Commission based on the prescribed rules in the following manner^{Footnote 25}:

• When the number of weeks left to be paid can be divided equally between the family members claiming the benefits.
• When the number of weeks is greater than the number of eligible family members, each family member will be assigned one week. The weeks will be assigned in the order in which the family members made their claim for compassionate care benefits, starting with the first eligible family member to make his or her claim, until no further week of benefits remains.
• When the number of weeks is less than the number of eligible family members, the weeks will be assigned in the order in which the family members made their claim for benefits, starting with the first eligible family member to make the claim, until no week of entitlement remains.

This decision will be made by the Commission staff when family members are unable to come to an agreement on this issue.

24.16.9 Antedates and compassionate care benefits

Usual adjudication principles will apply when a claimant requests an antedate of a claim for compassionate care benefits. However, the legislation provides that, when an antedate is requested for compassionate care benefits, the antedate^{Footnote 26} will be denied if at the time the claim is made:

• 26 weeks of compassionate care benefits have been paid; or,
• the period of entitlement to compassionate care benefits has already been established by another claimant and the request to antedate would move the start week of the 52-week window to an earlier date.

This provision ensures that a request to antedate a claim for compassionate care benefits by one claimant will not affect the previous entitlement of another claimant.

Based on the nature of compassionate care benefits, there will be occasions where individuals may delay in making a claim for benefits. When a claimant is prevented from making a claim by reason of providing care or support to a seriously ill family member, a lenient approach will be applied. Where a claimant is truly prevented from applying for benefit at an earlier date, good cause for the delay exists. All circumstances of the case must be taken into account without forgetting as previously explained, that a more lenient approach may be applicable in the case of special benefits^{Footnote 27}. Where the delay appears to be attributable more to negligence than to a real obstacle that could not be overcome, good cause is not present^{Footnote 28}.

24.16.10 Earnings

Any earnings received while in receipt of EI compassionate care benefits for the self-employed must be declared and will be deducted from benefits at a rate of 50 cents of EI benefits for every dollar earned or received while on claim, up to a maximum of 90 percent of the weekly earnings used to establish their EI benefit rate. Any earnings above this threshold are deducted dollar for dollar from benefits [EI Act 19(2)].

Detailed information on the rules regarding the deduction of earnings while receiving benefits can be found in Digest Chapter 1.9.8 – Earnings while on claim and on the Government of Canada website.

24.16.11 When out of Canada

The Regulation detailing the payment of EI self-employment special benefits to a claimant when out of Canada contains a prescription that it does not apply to compassionate care benefits. Therefore, a claimant in receipt of compassionate care benefits is not disentitled from benefits solely because of their absence from Canada^{Footnote 29}.