Digest of Benefit Entitlement Principles Chapter 13 - Section 1

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 weeksFootnote 1. 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 adoptionFootnote 2.

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 childFootnote 3,
  • 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 benefitsFootnote 4,
  • 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 benefitsFootnote 5, and
  • improve access to special benefits by reducing qualification from 700 to 600 hours of insurable employment<Footnote 6.

The implementation of the Québec Parental Insurance Plan (QPIP) on January 1, 2006, has brought about many changes in the rulesFootnote 7 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 Québec 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 Québec Parental Insurance Plan will be limited to QuebecFootnote 8.

Among other rules, a new principle of equivalenceFootnote 9 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.

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 weeks at a benefit rate of 55% 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 at a lower benefit rate of 33% of a claimant’s weekly insurable earnings, 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. Footnote 10

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

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 followsFootnote 11:

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.

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. It may be paid to one of the biological parents or parent with whom the child is placed for the purpose of adoption or may be shared between the parentsFootnote 12 to a combined maximum of 35 weeks of standard parental benefits or 61 weeks of extended parental benefitsFootnote 13.

The individual claiming the parental benefits must have experienced an interruption of earningsFootnote 14, and have 600 hours of insurable employment in the qualifying periodFootnote 15. 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 subsequentFootnote 16 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 childFootnote 17.

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 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.

Note:

In some cases the child may not be legally adoptable on the placement date. In these cases, the above criteria apply. Additional information may be requested in specific cases.

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 interests 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"Footnote 18 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 availableFootnote 19 under the Québec Parental Insurance Plan. There is a regulatory provisionFootnote 20 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.

The regulatory provisionFootnote 21 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.

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 35 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.

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/A

For the purposes of the above formula, A is 35, the maximum number of weeks of standard parental benefits; 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; and C is 61, the maximum number of weeks of extended parental benefits.

[ September 2013 ]

[ September 2012 ]

[ January 2012 ]

[ November 2009 ]

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 parentsFootnote 22. Like all claims for unemployment benefits a waiting period must be served before parental benefits can be paidFootnote 23 under the EI Act.

The waiting period may be waived if, after having ceased work, the claimant received sick leave paid by his employerFootnote 24 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 periodFootnote 25.

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 the second parent claiming parental benefitsFootnote 26.

However, the deferred waiting period for the second parent would be served following receipt of parental benefits in situations where regular, sickness, compassionate care or family caregiver benefits are subsequently claimed. Furthermore, when parents decide to share the EI parental benefits 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 regulationFootnote 27 made on January 1, 2006, in the context of the implementation of the Québec Parental Insurance PlanFootnote 28 authorizes waiving the waiting period where benefits have been paid under a provincial plan such as the QPIP.

[ January 2012 ]

[ July 2003 ]

13.1.4 To care for a child

Under the EI program, parental benefits are payable to one or both parentsFootnote 29.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 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 benefitsFootnote 30.

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 beginFootnote 31with 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.

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 claimantFootnote 32, 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.

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.

[ January 2012 ]

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.Footnote 33. 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 on the death of the child.

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 the week of birth or actual placement. 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 the week of birth or actual placement.Footnote 34

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 weeksFootnote 35. This is a provision which 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.

[ September 2006 ]

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

Under the EI program, a qualified claimantFootnote 36 may receive up to 35 weeks of standard parental benefits or up to 61 weeks of extended parentalFootnote 37 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 weeks of standard parental benefits or 61weeks 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 optionFootnote 38.

If parental benefits are shared, both 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 to the same option. Footnote 39Once parental benefits have been paid on a claim, the claimant’s choice to receive standard or extended parental benefits is irrevocable and not subject to reconsideration or appeal under the Employment Insurance Act.Footnote 40

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 a same birth or adoption of a childFootnote 41.

In addition there is a limit to the number of weeks of special benefits that a claimant may receiveFootnote 42.

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

In the past when claiming special benefits, earnings that were allocated to any week following the waiting period were deducted dollar for dollar from benefits. 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 are applicable for standard and extended 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 benefits Footnote 43. Earnings in excess of the 25% or $50 will be deducted dollar for dollar.

Detailed information on the rules currently applicable regarding the deduction of earnings while receiving benefits can be found on the Working while on Claim Pilot Project web page on the Service Canada websiteFootnote 44.

A regulatory provisionFootnote 45 was made on January 1, 2006, in the context of the implementation of the Québec Parental Insurance Program. 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 forFootnote 46.

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 situationsFootnote 47.

[ September 2006 ]

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