Digest of Benefit Entitlement Principles Chapter 13 - Section 1

13.1.0 Authority

Parental benefits are available to parents who take time away from work to care for a newborn or adopted child(ren). In order to receive parental benefits under the EI program, claimants must show that they meet the qualifying and entitlement conditions as outlined in section 23 of the EI Act.

13.1.1 Introduction

Historically, a combined maximum of 35 weeks of parental benefits could be paid to eligible parents within 52 weeks of the birth or adoption of a child(ren). These 35 weeks of benefits could be shared between biological, legal or adoptive parents.

On December 3, 2017, two options became available for receiving parental benefits; standard and extended parental benefits.

Standard parental benefits are payable for a maximum of 35 (EIA 12(3)(b)(i)) weeks at a benefit rate of 55% (EIA 14(1)) of a claimant's weekly insurable earnings, up to a maximum amount. The benefits must be claimed within 52 weeks after the week the child is born or placed for the purpose of adoption.

Extended parental benefits are payable for a maximum of 61 weeks (EIA 12(3)(b)(ii)) at a lower benefit rate of 33% of a claimant's weekly insurable earnings (EIA 14(1)), up to a maximum amount. The benefits must be claimed within 78 weeks after the week the child is born or placed for the purpose of adoption.

• Extended parental benefits are only available if the child is born or placed for the purposes of adoption on or after December 3, 2017.

On March 17, 2019, additional weeks of standard and extended parental benefits became available through the implementation of the parental sharing benefit. If more than one parent requests parental benefits for the same child, the parents will be eligible to access an additional 5 weeks of standard parental or an additional 8 weeks of extended parental benefits. This increases the maximum shareable standard parental benefits to 40 weeks and the maximum shareable extended parental benefits to 69 weeks (EIA 12(4)(b)(i) and (ii)).

• The additional weeks are only available if the child is born or placed for the purpose of adoption on or after March 17, 2019.
• One claimant cannot receive more than 35 standard weeks or 61 extended weeks of parental benefits per birth or placement and per benefit period.

13.1.2 Who can receive parental benefits

Parental benefits under the EI program are provided for the purpose of caring for one or more new-born children of the claimant or one or more children placed with the claimant for the purpose of adoption. They may be paid to any of the biological parents, legal parents or parent with whom the child is placed for the purpose of adoption, or may be shared between parents (EI Act 23(4)), to a combined maximum of 40 weeks of standard parental benefits or 69 weeks of extended parental benefits When parental benefits are shared, both parents must receive benefits under the same option, standard or extended. One parent cannot receive more than 35 weeks of standard parental benefits or 61 weeks of extended parental benefits.

The individual claiming the parental benefits must have experienced an interruption of earnings (EI Act 7; EI Regulation 14(2)), and have 600 hours of insurable employment in the qualifying period (EI Act 23(1), EI Act 6(1)). The claimant must provide a declaration as to the newborn's date of birth, or, when the placement is for the purposes of adoption, the child's date of placement with the claimant 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 parental benefits. Violations range from minor to subsequent (EI Act 7.1(1); Digest 18.10.6) with a related increase in the number of hours required to qualify for benefits.

Placements for the purpose of an adoption made by an agency or individual authorized to make such placements under applicable provincial laws governing adoption are recognized under Section 23 of the EI Act . In addition to intra-provincial placements for adoption, the legislation in several provinces also covers interprovincial and international adoptions. Accordingly, parental benefits may be paid to the claimant with whom a child from the claimant's province, another province or another country has been placed for the purpose of adoption, provided that such placement has been made in accordance with the laws that apply in the province or territory where the claimant resides. Parental benefits are also payable to a claimant who attests that it is their intent to adopt a child placed with them by a recognized authority because circumstances exist that render the legally recognized parent(s) incapable of caring for the child (FCA A-136-12; CUB 78779).

To establish whether a claimant is entitled to parental benefits under Section 23 of the Act, the following needs to be determined:

• Was the child placed with the claimant?
• Was the placement of the child for the purpose of adoption?
• Was it according to laws governing adoption in the province in which the claimant resides?
  
  Or
  
• Was the child placed with the claimant by a recognized authority because circumstances exist that renders the legally recognized parent(s) incapable of caring for the child; and
• Does the claimant attest that they consider the placement a permanent one and it is their intention to adopt the child?

When a claimant is requesting EI parental benefits for a child that has been placed with them by a recognized authority, benefits under Section 23 of the EI Act may be payable if it is the claimant's intention to adopt the child.

In cases where the child is not legally adoptable at the time the child is placed with the claimant by a recognized authority, parental benefits may be payable if the claimant attests that they consider the placement a permanent one and that it is their intent to adopt the child placed with them at the earliest opportunity. Although a verbal attestation is acceptable, the Commission may, at any time, request proof that the child was placed with them by a recognized authority and that the placement was not merely a temporary one.

In any adoption situation for which parental benefits have been correctly allowed under Section 23 of the Act, should the adoption fail to proceed for any reason, or should a claimant's intention to adopt change, the claimant's entitlement to EI parental benefits would cease the earlier of: 1) the first Sunday after the child is removed from the adoptive home; or, 2) the first Sunday following the official termination of the adoption proceedings. No over payment would be created. It is the claimant's responsibility to inform the Commission if the adoption fails to proceed or if their intent to adopt changes.

Child legally adoptable or not legally adoptable

In the case of a child that is legally adoptable on the placement date, the Commission can at any time request proof that the adoption process has started. Should the Commission request it, the claimant must provide a letter issued by the recognized adoption authority certifying that an official adoption file has been opened by the claimant for the purpose of adopting the child for whom they are claiming parental benefits. This letter will constitute proof that a child has been placed for the purpose of adoption and that the placement was made under the laws governing adoption in the province in which the claimant resides.

In cases where the child is not legally adoptable, a verbal attestation from the claimant that they consider the placement a permanent one and that it is their intent to adopt the child placed with them at the earliest opportunity is acceptable. In these circumstances, the Commission may, at any time, request proof from the claimant certifying that the child for whom they are claiming parental benefits as been placed with them by a recognized authority and that the placement was not merely a temporary one.

The following lists some of the various placement processes, some of which entitle the claimant to benefits effective the date of placement, others on later dates and others not at all.

1. Foster to Adopt program

Under a Foster to Adopt program or other similar programs, a child is placed for the purpose of adoption prior to the natural parents having consented to the adoption or having relinquished their rights to the child.

Entitlement to EI is proven from the date of placement if the following criteria are met:

• the child was physically placed with the claimant for the purpose of adoption; and
• the claimant has demonstrated a commitment to adopt the child under the laws governing adoption in the province or territory in which the claimant resides.

2. Private adoption

In the case of a private adoption, if the claimant can submit a letter from their attorney demonstrating that the adoption process has started or attest that it is their intent to adopt the child placed with them at the earliest opportunity, the placement will be considered to have been made for the purpose of adoption and parental benefits are payable.

3. Resource foster families

Resource foster families commit to adopting a child placed with them if that child is unable to return to its birth family or a kinship placement cannot be arranged. The foster family is aware that efforts are being undertaken by the adoption authority to return the child to its birth family or to find the child a kinship placement. They understand that, in some cases, the child may leave their care should these efforts be successful.

Entitlement to parental benefits is proven from the date the claimant officially opens a file with the recognized adoption authority for the purposes of adopting the child or, in cases where the child is not legally adoptable, from the date the claimant attests that it is their intent to adopt the child placed with them and that they consider the placement a permanent one.

4. Adoption not in the best interest of the child

A placement may be accepted when, instead of an adoption, the claimant has been granted permanent, legal custody because it is in the best interest of the child not to proceed with an adoption. In other words, such a situation may be effectively, but not technically an adoption. Fact finding must be conducted in these cases in order to determine that the placement is permanent.

For example, a Court could choose to issue a Permanent Custody Order rather than an Adoption order because an Adoption Order could be to the detriment of the child. The Court could deem that a Permanent Custody Order is effectively an "adoption situation" since it would give the claimant an identical role, responsibility and permanency that an Adoption Order would have bestowed. Such cases of permanent custody would be treated as adoptions and benefits would be payable to the claimant.

5. Foster care

A child placed for the purpose of foster care is not the same as being placed for the purpose of adoption. If a child is placed with a claimant for the purpose of foster care, and the foster parent (claimant) later pursues adopting that child, parental benefits are only payable once the adoption process has commenced. The opening of an official file with a recognized adoption authority for the purpose of adopting that child will be considered as the start of the adoption process and parental benefits will become payable effective on that date, or, in cases where the child is not legally adoptable, from the date the child is placed with the claimant having attested that they consider the placement a permanent one and that they intend to adopt the child.

6. Temporary or permanent custody of a child

Parental benefits may be payable if a child is placed with a claimant who has been awarded permanent or temporary custody of that child because circumstances exist that renders the legally recognized parent(s) incapable of caring for the child if:

1. the claimant attests that they consider the placement a permanent one and that it is their intention to adopt the child, and
2. the child was placed with the claimant by a recognized authority.

Parental benefits are payable effective the date the claimant attests that it is their intention to adopt the child that was placed with them by the recognized authority or in cases where the child is legally adoptable, from the date the claimant provides proof that an official adoption file has been opened for the purpose of adopting the child for whom they are claiming parental benefits.

7. Legally recognized parents

In some situations, a claimant who is not the child's biological or adoptive parent, may still be recognized as the child's legal parent. If that person is recognized as the child's legal parent on the provincial or territorial birth certificate, that person will be eligible to receive parental benefits, provided the qualifying conditions to establish a claim have been met. If the claimant cannot be recognized by the province as a parent on the birth registration, that person will not be entitled to parental benefits unless an adoption process has been started or, in cases where the child is not legally adoptable, from the date the claimant attests that it is their intent to adopt the child placed with them.

8. Native custom adoption governed by the Indian Act

Parental benefits are payable in respect of a native custom adoption when the adoption is governed by the Indian Act.

Canadian courts have long recognized the notion of native custom adoption. In doing so, the courts have provided the following criterion that can be applied to determine if a custom adoption has taken place:

• there is consent between the natural and adopting parents;
• the child has been voluntarily placed with the adopting parents;
• the adopting parents are indeed native or entitled to rely on native custom; and
• the rationale for native custom adoptions is present.

The rationale for native custom adoptions has been held by the court to mean that it is necessary for the survival of child whose parents were unable to care for them, or who had died. Other jurisprudence has noted that the term "rationale for native custom adoption" means that there is a recognized reason within the scope of the custom, whether it be to provide for children without parents, or otherwise, for the adoption to take place.

If the adoption does not meet the criteria listed above, it must be clear that the claimant has officially opened a file with a recognized adoption authority for the purpose of adopting the child for whom they are seeking parental benefits or, in cases where the child is not legally adoptable, from the date the claimant attests that it is their intent to adopt the child placed with them.

9. Québec Parental Insurance Plan

Since January 1, 2006, maternity and parental benefits have been available under the Québec Parental Insurance Plan. There is a regulatory provision providing that a person who is entitled to receive benefits from a provincial plan in respect to the birth or adoption of a child is disentitled to maternity or parental benefits under the EI program in respect of this same birth or adoption (Regulation 76.09(1)).

The regulatory provision is 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 (Regulation 76.21).

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

According to the regulation, the maximum number of weeks of standard parental benefits that can be paid to a parent cannot exceed the maximum number of 40 weeks less the number of weeks of provincial benefits that have been paid to the claimant 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. An EI parent cannot receive more than 35 weeks of standard or 61 weeks of extended parental benefits.

In cases of extended parental benefits, the maximum number of weeks of benefits that can be paid to a parent are determined by using the following formula:

(A-B) x C/D

For the purposes of the above formula, A is 40, the maximum number of weeks of standard parental benefits when the weeks of benefits are divided; B is the number of weeks of provincial benefits that are paid to the claimant 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; C is 61, the maximum number of weeks of extended parental benefits payable per benefit period; and D is 35, the maximum number of weeks of standard parental benefits payable per benefit period (EI Act 12(3)(b)(i) and (ii)).

13.1.3 Waiting period

As already indicated parental benefits are unique in that they may be paid to biological, legal or adoptive parents or may be shared between the parents. Like all claims for unemployment benefits a waiting period must be served (EI Act 13) before parental benefits can be paid under the EI Act.

The waiting period may be waived if, after having ceased work, the claimant received sick leave paid by his employer (Regulation 40(6)) 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 period (Regulation 39(3)(b)).

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, claimed maternity and/or parental benefits, the waiting period can be deferred for any other parent claiming parental benefits in respect of the same child (EI Act 23(5)).

When parents decide to share parental benefits and apply simultaneously, they may choose which one will serve the waiting period. This allows the other parents to defer their waiting periods. Note that a deferred waiting period is not the same as a waiting period that is waived; a waiting period that is deferred must be served before a parent can receive regular, sickness, compassionate care or family caregiver benefits on the same claim.

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, another 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 other 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 regulation in the context of the implementation of the Québec Parental Insurance Plan authorizes waiving the waiting period where benefits have been paid under a provincial plan such as the QPIP (Regulation 76.22).

13.1.4 To care for a child

Under the EI program, parental benefits are payable to parents to care for one or more new-born children or one or more children placed with the claimant for the purpose of adoption (EI Act 23(1)).

Parental benefits therefore provide a means of financial support that allows parents to be away from 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 or 61 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 cannot 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 benefits (Digest 13.3.4).

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 begin 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 (EI Act 23(2)(a)).

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.

There is no requirement in section 23 of the EI Act that an application for adoption be submitted to the court for a claimant to qualify for parental benefits. What must be demonstrated is that the child has been physically placed with the claimant and that this placement was made with the objective that the child will be adopted by the claimant. When a claimant can demonstrate that there is a commitment to adopt, the placement will be considered to be made for the purpose of adoption.

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 (CUB 16706). The placement must be made in accordance with the applicable provincial laws.

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.

13.1.6 When parental benefits are payable

Under the EI program, parental benefits are payable at any time during the benefit period and the parental window (EI 23(2); Regulation 76.09). These weeks do not have to be consecutive. Of course even when the claimant is within this window, no benefits are paid if he/she is no longer eligible or not entitled to them or if the claim has exhausted by duration. Parental benefits are not payable or cease to be payable after the end of the week in which the death of the child occurred.

The standard parental benefits window begins with the week in which the child is born or placed with the claimant for purposes of adoption and ends 52 weeks after that week. The extended parental benefits window begins with the week in which the child is born or placed with the claimant for purposes of adoption and ends 78 weeks after that week (EI Act 23(3.21)).

This window can be extended if the newborn or child placed for adoption is hospitalized during this 53 or 79-week period. The window may be extended by one week for each week or part week during which the child or children are in the hospital, up to a maximum of 104 weeks (EI Act 23(3); EI Act 23(3.1). This provision allows parents to care for their child or children during a period critical to the children's development and the extensions allow flexibility as to when the parental benefits may be requested.

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

13.1.7 The number of weeks for which parental benefits may be paid

Under the EI program, a qualified claimant may receive up to 35 weeks of standard parental benefits or up to 61 weeks of extended parental benefits (EI Act 12(4)(b)) in a benefit period. Furthermore, the global maximum number of weeks of parental benefits paid in respect of the same child cannot exceed 40 weeks of standard parental benefits or 69 weeks of extended parental benefits. As a result of that when the parents share these EI benefits, the total number of weeks they can receive between them is the applicable maximum per parental option (EI Act 23(4)).

If parental benefits are shared, all parents are required to be on the same option, either standard or extended. The option chosen by the first parent who completes the EI application binds the other parent(s) to the same option (EI Act 23(1.3)). Once parental benefits have been paid on a claim, the claimant's choice to receive standard or extended parental benefits is irrevocable (EI Act 23(1.2)).

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 Québec Parental Insurance Plan for the same birth or adoption of a child.

In addition there is a limit to the number of weeks of special benefits that a claimant may receive (Digest 13.2.1).

Claimants making an application for parental benefits must provide the name and social insurance number of the other parent for cross-reference purposes.

13.1.8 Earnings while on parental benefits

The allowable earnings provisions are applicable for standard and extended parental benefits. Any earnings received while in receipt of EI parental benefits 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% 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 1.9.7 – Earnings while on claim and on the Government of Canada website.

Pursuant to Regulation 76.16, 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 a provincial plan, are reduced by an amount equal to those provincial benefits, in addition to any other deduction provided for.

Thus, an amount equivalent to any provincial benefits a person has received or is entitled to receive in a given week, will be deducted in full from EI maternity or parental benefits for which the person may be eligible for that week in certain situations (Regulation 76.17).