Employment Insurance (EI)

Decision

[1] The appeal is allowed. This means that the Claimant can receive five weeks of shared parental benefits, taken immediately after his spouse has completed her maternity and parental benefits.

Overview

[2] The Claimant’s baby was born on August 13, 2020. The Claimant and his spouse decided to divide the maximum number of standard parental benefits allowed under the Employment Insurance Act (EI Act). Since they are sharing parental benefits, the EI Act allows them to take up to five additional weeks of standard benefits. 

[3] The two parents decided to take 40 weeks of shared parental benefits. The Claimant says he understood that as long as he started his leave before his child turned one, he would receive the extra five weeks of shared benefits. He planned to take his leave to bridge the gap after his spouse returned to work.

[4] The Claimant applied for benefits on August 11, 2021. He requested five weeks of benefits but received payment for just one week. After that his payments stopped, so he called Service Canada. An agent told him that benefits cannot be paid once his child turned one year old.

[5] The Commission says that the Claimant cannot receive all five weeks of parental benefits he requested because standard parental benefits are only payable within the 52-week “parental benefit window” under section 23(2) of the EI Act. It says that the Claimant’s parental window ends on August 14, 2021.

Issue

[6] Can the Claimant receive five weeks of shared parental benefits, including four weeks claimed more than 52 weeks after the birth of his child?

Analysis

[7] Parental benefits are payable to a claimant to care for their newborn child.^{Footnote 1} The EI Act says that parental benefits are usually payable for each week of unemployment in the period that begins with the week in which the child is born or placed with the parent for the purpose of adoption, and ends after 52 weeks.^{Footnote 2}

[8] The 52-week period after a baby is born or placed is referred to as the “parental benefit window.” This window can be extended in certain circumstances. For example, it can be extended for 26 weeks to allow a claimant to receive extended parental benefits.

[9] When a claimant claims more than one type of special benefit, the parental benefit window is extended to allow them to claim the maximum number of special benefits allowed under the EI Act.^{Footnote 3} The period can also be extended when a claimant’s baby is hospitalized.

[10] The maximum number of weeks of parental benefits in a benefit period for an individual claimant is 35 weeks of standard parental benefits or 61 weeks of extended parental benefits, as elected by the claimant.^{Footnote 4}

Additional weeks of shared parental benefits

[11] In 2018, the government passed the Budget Implementation Act, 2018, No. 2, which allowed additional weeks of parental benefits when those benefits are shared between two parents.^{Footnote 5} I will refer to this amending legislation as Bill C-86. The new sections added by Bill C-86 say that when benefits are shared between two parents, they can receive an extra five weeks of standard parental benefits, or an additional eight weeks of extended parental benefits.^{Footnote 6}

Can the Claimant receive shared parental benefits more than 52 weeks after the birth of his baby?

[12] The Claimant can receive all five weeks of shared parental benefits. The parental window does not apply to prevent him from receiving the additional shared parental benefits allowed under section 23(4) of the EI Act. My reasons are set out below.

Is the EI Act clear on the interaction between the parental window and the additional shared benefits allowed under Bill C-86?

[13] I think that the wording of section 23 of the EI Act is unclear on whether the parental benefit window applies to prevent a claimant from receiving the extra weeks of shared parental benefits allowed under section 23(4) of the Act.

[14] The Commission argues that parental benefits are only payable during the parental window, which begins with the week in which the child of a claimant is born or placed with the claimant, and ends 52 weeks after that week. It says that the EI Act must be interpreted in accordance with its plain meaning, and adjudicators have no power to amend the Act.^{Footnote 7} In addition, the Commission relies on the decision of a former Umpire in CUB 46747, which held that a claimant did not qualify for benefits because they claimed benefits more than 52 weeks after the child was placed in their home.^{Footnote 8}

[15] The Claimant says he acted based on information he had, and that the government’s website is unclear. He understood that he could claim benefits if he applied before his child turned one. He planned his leave to start when his spouse returned to work. He got one payment and nothing more. He called Service Canada and an agent told him the system had made an error, which would be fixed. The next week, another agent told him that he would need to have received all benefits by August 14, 2021. He was surprised, as this was the first time he was told about this issue.

[16] The Commission acknowledges it did not notify the Claimant of its decision, and regrets its administrative error. But it says that that miscommunication between the Commission and a claimant cannot alter the provisions and interpretation of the EI Act. ^{Footnote 9}

[17] I agree with the Commission that the EI Act must be applied as it is written, even if it has made errors when communicating with the Claimant. If miscommunication was the only issue in this hearing, I would have agreed with the Commission’s position.

[18] But I respectfully disagree with the Commission’s argument that the wording of section 23 of the EI Act on this issue is clear. In fact, there has been significant confusion over whether the parental window applies to the additional shared benefits allowed under section 23(4) of the EI Act.

[19] In a number of previous appeals before this Tribunal, claimants have told the Tribunal that Commission agents informed them they can claim shared parental benefits one after the other, beyond a parental window of 52 or 78 weeks.^{Footnote 10} This, in itself, is one significant indicator that the wording of section 23 of the EI Act is unclear.

[20] I also note that CUB 46747 was decided before Bill C-86 was passed to add the additional shared parental benefits to the EI Act. There is, as yet, no guidance from the courts or from the Tribunal’s Appeal Division on the interaction between the parental window and the additional shared benefits.

[21] I acknowledge that in most previous decisions, the Tribunal has decided that the parental window applies to claims made for additional shared parental benefits. However, I am not required to follow previous Tribunal decisions and I have decided not to follow them because I don’t think the legislation is clear.

[22] I think that the legislation is unclear for the following three reasons.

Conflict between the parental benefit window and the added benefits

[23] First, the Commission argues that shared parental benefits must be claimed within a 52-week parental benefit window. But if a 52-week parental benefit window must be met, it is not mathematically possible for two parents to take all 40 weeks of standard shared benefits sequentially, if a childbearing parent completes 15 weeks of maternity benefits after the baby’s birth. This is because 15 weeks of maternity benefits, followed by 40 weeks of shared standard parental benefits include a total of 55 weeks of benefits. This does not include any weeks allowed for a waiting period.

[24] There is nothing in the EI Act that states that the extra weeks of shared parental benefits need to overlap with the other parent’s benefits so that the parents can receive them. The Claimant argues that none of the examples of shared benefits shown on the Service Canada website include situations in which two parents share the additional benefits by staying home and claiming benefits at the same time.

[25] So, I think that the parental window in section 23(2) of the EI Act conflicts with the additional shared benefits allowed under a combination of sections 12(4) and 23(4) of the Act.

[26] I find it unlikely that the government would have introduced additional weeks of shared benefits, only to require that both parents take the shared benefits at the same time. Allowing additional weeks of benefits, but requiring that the weeks overlap, does not necessarily enable a childbearing parent to return to work earlier.

The parental window provisions don’t mention the additional shared parental benefits

[27] Second, there is no reference to the additional shared weeks of benefits in sections 23(2) to (3.4) of the EI Act (the parental benefit window provisions).

[28] It is true that section 23(2)(b) of the EI Act says that benefits are payable for each week of unemployment in the period “that ends 52 weeks after the week in which the child or children of the claimant are born or […] placed with the claimant for the purpose of adoption.”

[29] But the wording used in section 23(4) of the EI Act, added later by Bill C-86 (which allows the additional shared weeks of benefits) expressly refers to the amount of shared weeks of parental benefits as the “weeks of benefits payable under this section [...] up to a maximum of 40.”^{Footnote 11}

[30] The wording of section 23(4) of the EI Act suggests that the additional shared weeks of benefits are allowed, independent of the parental benefit window.

[31] So, I think that the EI Act is ambiguous, and at best silent, on whether the extra shared benefits are subject to the parental benefit window.

Bill C-86 parental benefit provisions contain important clarifications

[32] Third, when the additional shared benefits were added to the EI Act, Bill C-86 included important clarifications, apparently to ensure that there was no misunderstanding about a claimant’s entitlement to benefits.

[33] Section 23(4) of the EI Act says that where two major attachment claimants each make a claim for standard parental benefits, the weeks of benefits payable may be divided between them, up to a maximum of 40 weeks. Section 23(4.1) adds “For greater certainty,” that the total number of weeks that can be paid for the same child or children is limited to 40 weeks of standard parental benefits, or 69 weeks of extended parental benefits.

[34] Section 23(4.11) of the EI Act clarifies that the maximum number of weeks that may be paid to an individual claimant is 35 or 61 weeks, even if the number of weeks of benefits is divided in accordance with sections 23(4) and (4.1).

[35] But while Parliament seemed careful to emphasize any limits on the additional benefits, there is no reference in Bill C-86 to clarify that there is a “parental window” limit and that when shared benefits are claimed, those parental benefits must overlap.

[36] If Parliament had intended to limit the additional shared parental benefits allowed under section 23(4) to a 52 or 78-week parental window, I think it would have done so. This would have been a simple clarification. But the legislation does not include a provision that the shared benefits, if taken, must generally overlap with the other parent.

Legislative ambiguity should be resolved in favour of the Claimant

[37] The Supreme Court of Canada has held that the Act is designed to make benefits available quickly to those unemployed persons who qualify under it and so it should be liberally interpreted to achieve that end.^{Footnote 12}

[38] The Supreme Court of Canada has also held, in the context of benefits-conferring legislation, that an Act ought to be interpreted in a broad and generous manner, and that “any doubt arising from difficulties of language should be resolved in favour of the claimant.”^{Footnote 13}

[39] There is an apparent conflict between the parental benefit window set out in sections 23(2) to (3.4) of the EI Act, and the provisions that allow additional shared weeks of parental benefits set out in section 23(4) of the Act. Since the legislative provisions are unclear, the ambiguity caused by this conflict should be resolved in favour of the Claimant.

So, can the Claimant receive all five weeks of shared standard parental benefits?

[40] Yes. The Claimant can receive all five weeks of shared parental benefits. I find that the EI Act allows shared parental benefits, including the additional weeks of standard parental benefits, to be claimed sequentially when the benefits are shared between two parents.

[41] I have considered the wording of section 23 of the EI Act and the legislative intent of the EI Act. I do not agree with the Commission’s argument that the parental benefit window applies to prevent claimants from receiving the additional weeks of benefits allowed under section 23(4) of the EI Act, when those benefits are shared by two parents and taken one after the other.

Conclusion

[42] The appeal is allowed.

[43] This means that the Claimant can receive all five weeks of shared standard parental benefits, taken immediately after his spouse has completed her maternity and parental benefits claim.