Employment Insurance (EI)

Decision

[1] The appeal is allowed. The Claimant is not entitled to receive parental benefits outside the parental benefit window.

Overview

[2] This appeal is about when claimants sharing parental benefits can receive those benefits. Can any of the weeks of shared parental benefits be received outside the parental benefit window set out in the Employment Insurance Act (EI Act)?

[3] On September 9, 2021, the Respondent, I. F. (Claimant), applied to receive 5 weeks of shared standard parental benefits, starting on July 4, 2021. He stated in his application that his child was born on September 4, 2020. The Claimant and his spouse had decided to share the maximum number of weeks of standard parental benefits allowed under the EI Act, which is 40 weeks.

[4] The Appellant (Commission) told the Claimant that he could not receive any weeks of benefits because the parental benefit window ended 52 weeks after the birth of his child. The Claimant requested a reconsideration, but the Commission maintained its decision.

[5] The Claimant appealed to the Tribunal’s General Division. The General Division allowed his appeal deciding that he was entitled to 5 weeks of shared standard parental benefits under section 23(4) of the EI Act. It decided that the additional weeks of benefits were allowed regardless of the parental benefit window. The Claimant could receive benefits more than 52 weeks after the birth of his child.

[6] The General Division determined that there is a conflict between the parental benefit window set out in the EI Act and the section that allows additional weeks of shared parental benefits. It found that the legislation (laws from Parliament) is unclear and that the ambiguity should be resolved in favour of the Claimant.

[7] The Commission is appealing the General Division decision to the Tribunal’s Appeal Division. It argues that the General Division made an error of law.

[8] I agree. The General Division misinterpreted the law when it decided that the parental benefit window does not apply to the additional weeks of shared parental benefits.

[9] I will give the decision that the General Division should have given: The Claimant is not entitled to receive parental benefits outside the parental benefit window.

Issues

[10] The issues in this appeal are as follows:

1. a) Did the General Division make an error of law in its interpretation of the shared parental benefit provisions of the EI Act?
2. b) If so, how should the error be fixed?
3. c) Is the Claimant entitled to receive parental benefits outside the parental benefit window?

Analysis

[11] I can intervene in this case only if the General Division made a relevant error, which is known as a “ground of appeal.”^{Footnote 1} One of the grounds of appeal is that the General Division made an error of law in making its decision. The interpretation of legislation is a question of law.^{Footnote 2}

Background

Pregnancy benefits and parental benefits

[12] The EI Act provides pregnancy benefits to eligible claimants who prove their pregnancies.^{Footnote 3} Parental benefits are paid to eligible claimants while they care for newborn or adopted children.^{Footnote 4} Parental benefits are a separate benefit from pregnancy benefits. These benefits are among the special benefits available under the EI Act.

[13] Claimants can receive up to 15 weeks of pregnancy benefits.^{Footnote 5} Pregnancy benefits are payable during the period that begins 12 weeks before the week that the claimant expects to or does give birth and ends 17 weeks later.^{Footnote 6}

[14] When applying for pregnancy benefits, claimants can also request parental benefits, which will follow the 15 weeks of pregnancy benefits they receive. Claimants have to choose between two types of parental benefits:

• Standard parental benefits: The benefit rate is 55% of a claimant’s weekly insurable earnings up to a maximum amount. Up to 35 weeks of benefits are payable to one parent.
• Extended parental benefits: The benefit rate is 33% of a claimant’s weekly insurable earnings up to a maximum amount. Up to 61 weeks of benefits are payable to one parent.

[15] The EI Act also says that, when two claimants apply for parental benefits for the same child, they can share additional weeks of benefits.^{Footnote 7} I will refer to these as “shared parental benefits.” When two claimants elect (choose) to share parental benefits, the maximum number of weeks that can be divided between them is 40 for standard benefits and 69 for extended benefits.

[16] Neither parent can receive more than 35 weeks of standard or 61 weeks of extended parental benefits when they are shared.^{Footnote 8} This means that two parents receiving shared parental benefits could get an additional 5 weeks of standard or 8 weeks of extended parental benefits.

The parental benefit window

[17] The section of the EI Act that provides for parental benefits sets out the period when parental benefits can be paid.^{Footnote 9} This is often called the “parental benefit window,” although that phrase does not appear in the EI Act. I will refer to the period as the “parental benefit window” in these reasons.

[18] The starting point in the EI Act is that the parental benefit window ends 52 weeks after the week of the child’s birth, or the date of placement in cases of adoption.^{Footnote 10} The window can be extended in certain circumstances.^{Footnote 11} When claimants elect to receive extended parental benefits, the window is extended by 26 weeks, for a total of 78 weeks.

The General Division decision

[19] The Claimant’s child was born on September 4, 2020. He and his wife agreed to share 40 weeks of standard parental benefits. His wife received 15 weeks of pregnancy benefits, followed by 35 weeks of standard parental benefits.

[20] On September 9, 2021, the Claimant applied for 5 weeks of standard parental benefits. The Commission decided that the Claimant could not be paid any benefits because the parental benefit window had ended.

[21] The General Division allowed the Claimant’s appeal, finding that he was entitled to 5 weeks of shared parental benefits. It decided that he could receive these benefits outside the parental benefit window.

[22] The General Division reviewed amendments to the EI Act in 2018, which brought in the additional weeks of shared parental benefits (the relevant amendments).^{Footnote 12} The amendments allowed for parents who elected to share parental benefits to receive an additional 5 weeks of standard and 8 weeks of extended parental benefits. The General Division found that the legislation is unclear as to whether the parental benefit window applies to the additional weeks of shared parental benefits.^{Footnote 13}

[23] The General Division gave three reasons for finding that the legislation is unclear:

• There is a conflict between the parental benefit window and the provision that allows for the additional weeks of shared parental benefits.
• The parental benefit window provisions of the EI Act do not refer to the additional weeks of shared parental benefits.
• The relevant amendments adding the additional weeks of benefits included important clarifications but did not refer to the parental benefit window.

[24] Having found that there is ambiguity in the legislation, the General Division decided that the ambiguity should be resolved in favour of the Claimant.^{Footnote 14} It found that the parental benefit window does not apply to the additional weeks of shared parental benefits (5 weeks for standard benefits or 8 weeks for extended benefits). The Claimant could receive all the weeks of shared parental benefits he wanted.^{Footnote 15}

The Commission’s appeal to the Appeal Division

[25] The Commission argues that the General Division made an error of law in its interpretation of the parental benefit window provisions. It says that the words of the EI Act are precise and unequivocal (unambiguous): They clearly state that claimants cannot receive parental benefits outside the parental benefit window.

[26] The Commission argues that the General Division did not follow the proper approach to interpreting the provisions of the EI Act. It says that the wording of the legislation is clear and should have played a dominant role in the General Division’s interpretation. The Commission argues that, instead of focusing on the clear wording of section 23 of the EI Act, the General Division incorrectly found a conflict in the legislation.

[27] The Commission also says that the General Division relied on a misconception about pregnancy benefits when it found that two parents could not take the additional weeks of shared parental benefits sequentially if the parental benefit window applied. It relied on irrelevant information given by Service Canada agents and made incorrect assumptions about the legislative intent behind the relevant amendments to the EI Act.

[28] The Claimant did not file submissions or make any oral arguments at the Appeal Division hearing.

The General Division made an error of law in finding that the parental benefit window does not apply

[29] The General Division based its interpretation of the legislation on a perceived conflict between section 23(4) of the EI Act, which allows for additional weeks of shared parental benefits and the parental benefit window at section 23(2). I find that the General Division erred in law by failing to consider the text of section 23(2) in its exercise of statutory interpretation.

[30] When interpreting legislation, the courts have said that the Tribunal must consider the text, context, and purpose of the legislation.^{Footnote 16} The General Division’s decision focused on the purpose of the legislation and the perceived conflict between the sections. However, the General Division failed to properly consider the actual wording of sections 23(2) and 23(4). This is an error of law.

[31] In its decision, the General Division rejected the Commission’s argument that the wording of the section is clear. However, the General Division did not include the text of section 23(2) in its decision or interpret the words used in that section.

[32] The General Division said that many Tribunal decisions note circumstances in which Commission agents have told claimants that they are entitled to claim shared parental benefits beyond the parental benefit window.^{Footnote 17} It relied on this as an indication that the wording is unclear.

[33] As mentioned above, the General Division gave three reasons for finding that the legislation is unclear. First, the General Division found that there is a conflict between the parental benefit window and the additional weeks of benefits. It based this finding on the conclusion that it is mathematically impossible, within a 52-week parental benefit window, for two parents to take 40 weeks of standard parental benefits sequentially after the childbearing parent receives 15 weeks of pregnancy benefits.^{Footnote 18}

[34] The General Division noted that there is nothing in the EI Act that says that the extra weeks of shared parental benefits have to overlap with the other parent’s benefits so that the parents can be sure to receive them. For this reason, it found that there is a conflict between the sections.^{Footnote 19}

[35] The General Division made an error of law in concluding that the sections are in conflict because there is no requirement that the benefits be taken concurrently. There are situations in which two parents could take the additional weeks of benefits sequentially within the standard 52-week or 78-week parental benefit window:

• The additional weeks of benefits apply to claimants who adopt and would not have to accommodate any weeks of pregnancy benefits. Those parents can take the additional weeks of benefits sequentially.
• The General Division made an error in misconstruing how pregnancy benefits work. These benefits may be taken up to 12 weeks before the claimant is expected to give birth. In cases where pregnancy benefits are taken before birth, two parents may be able to take some or all of the additional weeks of shared parental benefits sequentially.

[36] I acknowledge that many claimants will be in the same situation as the Claimant, with the childbearing parent having taken pregnancy benefits starting at or around the time of birth. For these parents, the parental benefit window would prevent two claimants from taking the additional weeks sequentially.

[37] However, the General Division was wrong to conclude that Parliament would have included a provision requiring the additional weeks to overlap if it intended the parental benefit window to apply. The General Division ignored those circumstances in which claimants are able to take the weeks sequentially.

[38] Second, the General Division found that there is no reference to the additional weeks of shared parental benefits in the sections about the parental benefit window (sections 23(2) to 23(3.4) of the EI Act). For this reason, it found that the EI Act is silent on whether the parental benefit window applies to the extra weeks of shared benefits.^{Footnote 20}

[39] However, none of those subsections specifically refer to a certain number of weeks of benefits. By including “[s]ubject to section 12,” section 23(2) references the applicable maximums.

[40] Section 12 of the EI Act sets out the maximum number of weeks of benefits that can be paid to a claimant. Section 12(1) reads:

12 (1) If a benefit period has been established for a claimant, benefits may be paid to the claimant for each week of unemployment that falls in the benefit period, subject to the maximums established by this section.

[41] Section 12(4) refers to the additional weeks of shared parental benefits. It reads:

(4) The maximum number of weeks for which benefits may be paid

1. (a) for a single pregnancy is 15; and
2. (b) for the care of one or more new-born or adopted children as a result of a single pregnancy or placement is,
   1. (i) if the maximum number of weeks that has been elected under subsection 23(1.1) is established under subparagraph (3)(b)(i), 35 or, if the weeks for which benefits may be paid are divided in accordance with section 23, 40, or
   2. (ii) if the maximum number of weeks that has been elected under subsection 23(1.1) is established under subparagraph (3)(b)(ii), 61 or, if the weeks for which benefits may be paid are divided in accordance with section 23, 69.^{Footnote 21}
      
      [emphasis added]

[42] The General Division failed to consider the full text of the section, particularly the words “[s]ubject to section 12” in section 23(2).

[43] Finally, the General Division noted that the amendments that introduced the additional weeks of shared parental benefits included clarifications. Specifically, it noted that section 23(4.1) says that, “[f]or greater certainty,” the total number of weeks of parental benefits that can be paid for the same child or children is 40 for standard benefits or 69 for extended benefits.^{Footnote 22} Section 23(4.11) makes it clear that each individual claimant can get no more than 35 or 61 weeks when benefits are shared.^{Footnote 23}

[44] The General Division found that these clarifications did not set out a parental benefit window limit or say that the benefits have to overlap. It found that Parliament would have included a provision saying that the parental benefit window applies, or that benefits have to overlap, if that was the intention.^{Footnote 24} The fact that it did not include this clarification shows that the legislation is unclear.

[45] As discussed above, the General Division ignored those situations in which claimants can take the weeks sequentially when it decided that Parliament would have included a provision requiring the benefits to overlap.

[46] The General Division’s interpretation of section 23(4) is that the parental benefit window does not apply to the additional 5 weeks of standard or 8 weeks of extended benefits when shared parental benefits are taken sequentially, but presumably does apply to the 35 or 61 weeks that an individual claimant may receive.

[47] If the parental benefit window did not apply to those additional weeks, there is nothing in the wording of the section 23 to suggest the weeks would have to be taken immediately after the other claimant’s benefits end. This would mean that a claimant could take the additional 5 or 8 weeks of parental benefits at any time.

[48] The General Division found that only the additional 5 or 8 weeks of shared parental benefits are not covered by the parental benefit window. There is no explicit reference in sections 23(4), 23(4.1), or 23(4.11) to 5 or 8 additional weeks of benefits. Two claimants may choose to divide the 40 or 69 weeks however they decide.

[49] I find that the wording of the section 23 cannot support the General Division’s interpretation that the parental benefit window applies to 35 or 61 weeks of shared parental benefits, but not the additional weeks.

[50] The General Division made an error of law in its interpretation of section 23 when it found that the wording is unclear and that the parental benefit window provisions conflict with the section that allows additional weeks of shared parental benefits.

[51] The General Division failed to consider the actual wording of sections 23(2) and 23(4). It focused on the purpose of the legislation when finding that the sections are unclear rather the looking at the text of the legislation.

I will fix the General Division’s error by giving the decision it should have given

[52] The General Division based its decision on a misinterpretation of the legislation, which is an error of law. This means that I can substitute my own decision or I can refer the matter back to the General Division for reconsideration.^{Footnote 25} I can decide any question of law or fact that is needed to resolve the Claimant’s appeal.^{Footnote 26}

[53] In this case, I find that it is appropriate for me to substitute my own decision. The parties agree that I should make the decision that the General Division should have made. The record is complete and the parties had a full opportunity to make their case at the General Division.^{Footnote 27}

The Claimant cannot receive benefits outside the parental benefit window

[54] I found that the General Division erred in its interpretation of sections 23(4) and 23(2) of the EI Act. I now have to interpret the legislation. To do so, I have to consider the words of the legislation in their entire context in their grammatical and ordinary sense harmoniously with the scheme and object of the EI Act, and the intention of Parliament.^{Footnote 28}

[55] The Commission argues that the wording of section 23(2) is precise and unequivocal. It says that the General Division’s interpretation should have ended with a finding that the language of the section is clear and that no further analysis is required.

[56] I agree with the Commission that the wording of section 23(2) is clear. However, I disagree that this ends the statutory interpretation exercise. I have to consider the total context of the sections to be interpreted.^{Footnote 29}

[57] The Commission relies on the Supreme Court of Canada decision in Canada Trustco. In that case, the Court said that the precise and unequivocal words will play a dominant role in the interpretive process.^{Footnote 30} When the words used are clear, their ordinary meaning does play a more significant role in the interpretation.^{Footnote 31}

[58] However, the Court also said that we have to “look beyond the mere text of the provisions and undertake a contextual and purposive approach to interpretation in order to find meaning that harmonizes the wording, object, spirit and purpose of the provisions.”^{Footnote 32}

[59] The language in the EI Act cannot be interpreted independent of its context and purpose. In Canada Trustco, the Court also said that context and purpose can reveal ambiguity in the legislation where the language appears to be plain and clear.^{Footnote 33}

[60] I will examine the wording of sections 23(2) and 23(4), the context of these sections in the EI Act, the purpose of the legislation, and the intention of Parliament.

The wording of the legislation is clear

[61] The Commission argues that the wording of the legislation is precise and unequivocal, so the words should play a dominant role in interpreting the provisions. Because the wording of the sections is important, I will include the full text of the relevant sections.

[62] The parental benefit window is set out in section 23(2) of the EI Act:

(2) Weeks for which benefits may be paid - Subject to section 12, benefits under this section are payable for each week of unemployment in the period

1. (a) that begins 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; and
2. (b) that ends 52 weeks after 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.

[63] The EI Act then outlines certain circumstances in which the parental benefit window can be extended:

• when the child is hospitalized
• when a claimant is deployed
• when a claimant receives multiple special benefits
• where a claimant elects to receive extended parental benefits
• when there are certain combinations of regular and special benefits^{Footnote 34}

[64] In 2018, the EI Act was amended to add the section that allows two claimants to share up to 40 weeks of standard parental benefits or 69 weeks of extended parental benefits.^{Footnote 35} This section allows for an extra 5 weeks of standard or 8 weeks of extended benefits to be paid when shared. Section 23(4) reads:

Division of weeks of benefits

(4) If two claimants each make a claim for benefits under this section — or if one claimant makes a claim for benefits under this section and an individual makes a claim for benefits under section 152.05 — in respect of the same child or children, the weeks of benefits payable under this section, under section 152.05 or under both those sections, may be divided between them up to a maximum of 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 up to a maximum of 69, if that number of weeks is established under subparagraph 12(3)(b)(ii) or 152.14(1)(b)(ii). If they cannot agree, the weeks of benefits are to be divided in accordance with the prescribed rules.

[65] The amendments also say that an individual claimant cannot receive more than 35 or 61 weeks of benefits. Section 23(4.11) reads:

(4.11) Even if the weeks of benefits payable are divided in accordance with subsections (4) and (4.1), the maximum number of weeks for which benefits may be paid to a claimant is 35 or 61 weeks, in accordance with the election made under subsection (1.1) or 152.05(1.1).

[66] The opening words to section 23(2) are: “[s]ubject to section 12, benefits under this section are payable for each week of unemployment in the period …” [emphasis added]. The additional weeks of shared benefits are set out in section 23(4), which makes them benefits under section 23.

[67] The plain wording of section 23 is that the benefits payable under section 23 are limited to the parental benefit window set out in section 23(2). There is nothing in the legislation to suggest the additional weeks of shared parental benefits are not benefits under section 23.

[68] I have also considered the words “[s]ubject to section 12” in section 23(2). The relevant parts of section 12 are set out in paragraphs 46 and 47, above. As stated, I find that the additional weeks are referred to in section 12(4).

[69] I find that the wording of section 23 is clear. The section addresses all parental benefits. It includes the additional weeks of shared parental benefits at section 23(4).

[70] Section 23(2) sets out when the benefits under section 23 can be paid. A plain reading of the section is that the parental benefit window applies to all benefits provided for by section 23, including the additional weeks of shared parental benefits. This is further supported by the use of the phrase “[s]ubject to section 12” as the additional weeks are referred to in section 12(4).

[71] As indicated, the analysis does not end with the plain meaning of the text. Having found that the words are clear, they will play a dominant role in the interpretation.^{Footnote 36} However, I also have to look at the context to determine whether this interpretation is consistent with the purpose of the legislation and the intention of Parliament.

Context and purpose of the parental benefit provisions

[72] Benefits under the EI Act are payable within a benefit period. Section 10 of the EI Act concerns the commencement, length, and termination of the benefit period. This period begins when a claimant has an interruption of earnings. A claimant has to have established a benefit period to receive benefits.

[73] The parental benefit window defines when parental benefits may be paid. The parental benefit window extensions allowed by the EI Act have corresponding extensions to the benefit period in section 10.^{Footnote 37} This means that a claimant who is entitled to an extension to their parental benefit window will also see an extension to their benefit period, so that they can receive benefits.

[74] If the parental benefit window did not apply to the additional weeks of benefits, as found by the General Division, presumably a claimant would be relying on their benefit period under section 10 to ensure eligibility.

[75] However, the payment of parental benefits is dependent on the parental benefit window and not the benefit period. The Federal Court of Appeal has stated:

Although there can be no doubt that the benefit period established pursuant to sections 9 and 10 of the Act is specific to a claimant, the period in which parental benefits may be paid under subsection 23(2) is not. That period is tied to the birth of a child or children (see: subsection 23(2)). Therefore, even though two claimants can make a claim for parental benefits for the care of one or more children and each claimant must separately establish his or her own benefit period, the parental benefits that will be paid can only be paid during the period set out in subsection 23(2), regardless of when a claimant’s benefit period commences and ends.^{Footnote 38}

[76] The purpose of parental benefits is to compensate eligible parents who have an interruption of earnings when they care for a newborn or adopted child or children. These provisions are not driven by the needs of the parents. The purpose of the legislation is to provide these parents with income replacement for a limited time.^{Footnote 39}

[77] As discussed above, there may be circumstances where parents can take the weeks sequentially, while others will have to overlap to receive all 40 or 69 weeks. Whether the weeks of benefits are taken sequentially or concurrently, two parents have more weeks available to share in parenting obligations. Two parents have additional weeks of parental benefits available to share that are not available to single parent claimants.

[78] I find that the wording of section 23 is clear. It may have been preferable for Parliament to have included an extension to the parental benefit window to allow all parents to take the additional weeks sequentially. However, the actual words in the legislation cannot be ignored to interpret a provision in a way that better fits with the purpose of the legislation.^{Footnote 40} The plain language of the text is consistent with the purpose of encouraging parents to share parenting obligations.

[79] While it is true that a benefits-conferring law should be given a broad and liberal interpretation, this interpretive approach cannot be used to read out an express limitation in the legislation.^{Footnote 41} Reading section 23(4) as allowing 5 or 8 additional weeks of parental benefits outside the parental benefit window would effectively read out the express limitation in section 23(2).

[80] Furthermore, the courts have said that, for there to be ambiguity in a text, the ambiguity has to be real. This means that the text has to be capable of reasonably supporting more than one meaning.^{Footnote 42}

[81] I do not find that the text can reasonably support the meaning that the parental benefit window does not apply to the additional weeks of shared parental benefits. The context and purpose do not reveal ambiguity in this clear language. The plain meaning of the section is consistent with the purpose of the legislation and the intention of Parliament.

[82] When the parental benefit window applies to the additional weeks of shared parental benefits, many parents in the same situation as the Claimant will be unable to take those weeks sequentially. I have considered whether this amounts to an absurdity or, potentially, an error in legislative drafting.

[83] A result may be absurd if it “leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment ….”^{Footnote 43}

[84] It might seem more consistent to have increased the parental benefit window for parents who share additional weeks of benefits so that all parents to take the weeks sequentially. However, I find that this does not amount to an absurdity.

[85] The additional weeks of shared parental benefits are available to claimants, some of whom will be able to take the weeks sequentially, while others will have to take them concurrently. This amounts to a potential inconsistency in the application of the law depending on the claimant’s circumstances. However, this inconsistency does not rise to the level of an absurdity.

[86] As discussed above, if the parental benefit window does not apply to the additional weeks of shared parental benefits, claimants would be able to take 5 or 8 weeks of parental benefits at any time. I find that this would be an illogical outcome that is incompatible with the other sections of the EI Act.

[87] I have considered whether the fact that the parental benefit window was not amended to include an extension to allow the additional weeks of shared parental benefits to be taken concurrently could be seen as an error in legislative drafting. Generally, a drafting error can be corrected when three criteria are met:

• the error leads to a manifest absurdity
• the absurdity is caused by a traceable error
• an obvious correction is available^{Footnote 44}

[88] As I have discussed, I do not find that the potential error leads to a manifest absurdity.

[89] There is also a difference between a drafting error and a legislative gap. A legislative gap happens when a law is under-inclusive and results in a narrower application than it should. In this case, the legislation does not allow certain claimants to take the additional weeks of shared parental benefits concurrently. Under-inclusiveness is cured by legislation not by reading in an exception that is not in the EI Act. This is considered amendment that has to be left to the legislature.^{Footnote 45}

[90] Parliament did not amend the parental benefit window, or provide an exception to the window for the additional weeks. If this decision was not intentional, I find that the lack of an extension to the parental benefit window would be a legislative gap rather than a drafting error.

[91] Given that Parliament had extended the parental benefit window before, such as when it introduced extended parental benefits, consideration has to be given to the likelihood that Parliament did not intend to modify the parental benefit window.

[92] The language of section 23(2) is clear that the window will apply to benefits under that section. This suggests that the legislative drafters would have been aware that section 23(2) would apply to the weeks of benefits under section 23(4).

[93] I note that the Claimant made every effort to ensure that he was complying with the law when applying for shared parental benefits. He read the information on the EI website and believed that he was entitled to benefits. He contacted the Commission numerous times about to ask for clarification.^{Footnote 46} I understand his frustration. I am sympathetic to his circumstances and those of the many other claimants in the same situation. However, I have to interpret and apply the law, and I cannot re-write legislation.^{Footnote 47}

[94] I find that the legislation is clear. The additional weeks of shared parental benefits are benefits under section 23. This means that the parental benefit window applies and that benefits cannot be paid outside this period.

Conclusion

[95] The appeal is allowed. The General Division made an error of law in its interpretation of sections 23(2) and 23(4) the EI Act. The Claimant is not entitled to receive parental benefits beyond the parental benefit window.