Digest of Benefit Entitlement Principles Chapter 24 - Section 15

24.15.0 Parental benefits

24.15.1 Introduction

Parental benefits are offered to support parents who take time from their business to care for a newborn or an adopted child(ren).

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.

• Extended parental benefits are only available if the child is born or placed for the purposes of adoption on or after December 3, 2017 ^{Footnote 1}.

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(b)(4)(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.

24.15.2 Who can receive parental benefits

Parental benefits under the EI program are provided for the purpose of caring for a newborn child or an adopted child and as such, may be paid to one of the biological, legal or adoptive parents, or may be shared between parents ^{Footnote 2} to a combined maximum of 40 weeks of standard parental benefits or 69 weeks of extended parental benefits ^{Footnote 3} . 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.

In the context of the Quebec Parental Insurance Plan, a regulatory provision has been made providing that a self-employed 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 parental benefits under the Employment Insurance program in respect of this same birth or adoption ^{Footnote 4} .

This disentitlement doesn't apply however in situations where the amount of provincial benefits that the self-employed person is entitled to receive under a provincial plan is not substantially equivalent to the amount of benefits that they would be entitled to under the EI Act. A regulatory provision ^{Footnote 5} makes it possible to pay weekly EI parental benefits in addition to the provincial benefits so that the global amount of the benefits is at least equivalent to the amount of benefits he/she would otherwise have been entitled to under the EI Act.

EI benefits payable to a self-employed person in respect of any week for which the person has received or is entitled to receive benefits from a provincial plan are reduced ^{Footnote 6} by an amount equal to those provincial benefits in addition to any other deduction provided for ^{Footnote 7}.

24.15.3 First entitlement condition: declaration of birth or placement

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.

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, legal parents or parent with whom the child(ren) is placed for the purpose of adoption, or may be shared between the parents ^{Footnote 8}to a combined maximum of 40 weeks of standard parental benefits or 69 weeks of extended parental benefits ^{Footnote 9}. No parent can receive more than 35 weeks of standard parental benefits or 61 weeks of extended parental benefits.

Placements for the purpose of adoption made by an agency or individual authorized to make such placements under applicable provincial laws governing adoption are recognized under the act ^{Footnote 10}. In addition to intra-provincial placements for adoption, the legislation in several provinces also covers inter-provincial 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.

There are 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. Placements for the purpose of adoption

Under the Foster to Adopt program; the Resource Foster Family who Foster with "Intent to adopt"; or other similar programs, a child can be 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; 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.

There is no requirement that the 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 family and that this placement was made with the objective that the child will be adopted by the family. 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.

2. 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 where it is in the best interest of the child not to proceed with an adoption, 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 benefits. Fact finding must be conducted in these cases in order to determine the specific circumstances of the case, and why an adoption process has not or will not be initiated.

3. 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.

4. 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.

5. Foster care

A child placed for the purpose of foster care is not the same as being placed for the purpose of adoption. In the case where the claimant is a foster parent and the child was not originally placed for the purpose of adoption (or with the "intent to adopt"), the claimant must be asked if and when an adoption process was initiated.

Where a claimant was a foster parent and requested parental benefits saying it was her intent to adopt the child, it was decided that the placement in foster care could not be considered as an adoption placement until such time as the natural parent consented to terminate her parental rights making it possible for the child to be legally adopted.

6. Temporary or permanent custody of a child

Claimants who have temporary or permanent custody of a child are not eligible for parental benefits unless they can prove they have started the process of adopting that child. Claimants must be contacted to verify if and/or when an adoption process has been initiated.

For example, situations will arise where a relative, such as a grandparent, has been awarded permanent or temporary custody of a child. In these cases parental benefits cannot be paid, as it cannot be said that the child has been placed with the relative for the purpose of adoption, pursuant to the adoption laws of the province in which the claimant resides. For that to occur, it must be shown that the grandparent is in the process of adopting the child.

Since January 1, 2006, maternity and parental benefits have been available under the Québec Parental Insurance Plan. There is now a regulatory provision ^{Footnote 11} providing that a person who is entitled to receive benefits from a provincial plan in respect of the birth or 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 provision ^{Footnote 12} 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 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.

When benefits are shared, according to the regulation ^{Footnote 13}, the maximum number of weeks of standard parental benefits that can be paid cannot exceed the maximum number of 40 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. An EI parent cannot receive more than 35 weeks of standard parental benefits 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 the EI 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 Regulation 76.42(3)).

In any adoption situation, should the adoption fail to proceed for any reason, the claimant's entitlement to EI parental benefits would cease commencing with the first Sunday after the child is removed from the adoptive home.

24.15.4 Second entitlement condition: to care for a child

Under the EI program, parental benefits are payable to one parent or may be shared between parents ^{Footnote 14}:

“…if, in respect of the same child or children, a major attachment claimant makes a claim for benefits under this section and an individual makes a claim for benefits under section 152.05, the total number of weeks of benefits payable under this section and section 152.05 that may be divided between them may not exceed”

(a) 40, if the maximum number of weeks that has been elected under subsection (1.1) or 152.05(1.1) is established under subparagraph 12(3)(b)(i) or 152.14(1)(b)(i); or

(b) 69, if that number of weeks is established under subparagraph 12(3)(b)(ii) or 152.14(1)(b)(ii).

Parental benefits therefore provide a means of financial support that allows a parent(s) to be away from work entirely, or to an extent that they would still be considered unemployed ^{Footnote 15} during weeks they are receiving benefits to care for the child.

The parental legislation has evolved over the years to where it no longer makes 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.

24.15.5 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 ^{Footnote 16} :

…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.

There is no requirement in section 152.05 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. 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.

24.15.6 Waiting period

Parental benefits are unique in that they may be paid to biological, legal or adoptive parents, or may be shared between parents. Like all claims for employment insurance benefits a waiting period must be served before parental benefits can be paid under the EI Act ^{Footnote 17}.

The waiting period may be waived if, after having ceased work, the claimant received sick leave paid by an 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 ^{Footnote 18}.

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 claims maternity and/or parental benefits, the waiting period can be deferred for any other parent claiming parental benefits in respect of the same child.

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 newborn 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 meets the conditions to have the waiting period waived.

24.15.7 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 20} . These weeks do not have to be consecutive. Of course even when the claimant is within this window, no benefits are paid if they are 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 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 ^{Footnote 21}.

This window can be extended if the newborn or the 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 ^{Footnote 22}. 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.

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

Under the EI program, a qualified claimant ^{Footnote 23}may receive up to 35 weeks of standard parental benefits or 61 weeks of extended 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 40 weeks of standard parental benefits or 69 weeks of extended parental benefits. As a result, when the parents share these EI benefits, the total number of weeks they can receive between them is the applicable maximum per parental option ^{Footnote 24}.

If parental benefits are being 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 ^{Footnote 25}. Once parental benefits have been paid on a claim, the claimant’s choice to receive standard or extended parental benefit is irrevocable ^{Footnote 26}.

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 a provincial plan, such as the Quebec Parental Insurance Plan for the same birth or adoption of a child ^{Footnote 27} .

When benefits are shared, the maximum number of weeks of benefits that can be paid under the EI program cannot exceed the maximum number of 40 weeks less the number of weeks of provincial benefits that have been paid to the other parent, taking into account any weeks of benefits that are paid at the accelerated rate under the provincial plan ^{Footnote 28}. An EI parent cannot receive more than 35 weeks of standard parental benefits 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.

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

24.15.9 Earnings while in receipt of parental benefits

Any earnings received while in receipt of EI parental 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 1.9.7 – Earnings while on claim and on the Government of Canada website.

More information on earnings both from self-employment and insured employment with an employer is found elsewhere in this Chapter ^{Footnote 29} and details on the treatment of income from self-employment during an EI claim is found in Chapter 5.16 ^{Footnote 30} of this Digest.

24.15.10 When out of Canada

The Regulation detailing the payment of EI self-employment special benefits to a claimant when out of Canada specifies that it does not apply to parental benefits. Therefore, a claimant in receipt of parental benefits is not disentitled from benefits solely because of their absence from Canada ^{Footnote 31}.