EI Board of Referees Decision on twins

8/14/2019 EI Board of Referees Decision on twins

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BOARD OF REFEREESEmployment Insurance

CONSEIL ARBITRALAssurance-em ploi

BOARD OF REFEREES DECISION Case number - Numrode la causeDCISION DU CONSEIL ARBITRAL 09-0129

Name of appellant - Nom de l'appelant/appelante File number - Numro de dossierChristian Martin Service Canada Centre address - Adresse du Centre Service Canada Place of hearing - Endroit de l'audience300 Sparks St., 3rd Floor West 1Ottawa ON K1A OJ6 300 Sparks St., 3rd FloorPlace de Vil le, Podium BuildingOttawa ON K1A OJ6Atlending pariies and witnesses heard during the hearinq wiih their tit le.jn-person, teleconference, videoconference or on the recordParties prsentes et tmoins entendus l'audienceainsi que leur titre, en personne, tlconfrence, vidoconfrence ou sur la foi du dossierChrist ian Martin - Claimant -Stephen Moreau - Cavalluzzo Hayes ShiIton Mclntyre & Cornish LLP - Claimant representative

DateHearing audio recorded lZ l Enregistrement de l'audience 11-September -2009DECISION OF THE BOARD OF REFEREES - - DCISION DU CONSEIL ARBITRAL

ISSUE:Whether or not the claimant qualifies for a benefit period by virtue of section 12(4) of theEmployment Insu rance Act (hereinafter called the "Act")INFORMATION FROM THE DOCKET:The claimant applied for 35 weeks of employment insurance parental benefits (Exhibit 4) on April271h 2009 (Exhibit 8-8) to care for his infant daughter Lucie Martin (Exhibit 8-9). His children(identical twins) (Lucie and Athena) were born April 21512009 (Exhibit 8-7).On April 2ih 2009 the mother of the children had also successfully applied for 35 weeks of parentalbenefits (Exhibit 6) to care for their twin daughter Athena.ln response to the claimant's application for parental benefits, the Commission advised theclaimant as follows:" ...you have not proven that you are the parent that will be taking the 35 weeksof parental benefits for this birth. Your wife has applied for the 35 weeks of parental and you have

ntlPrsidente Member - Membre ~-::..). ...( ) . ~ .,../R . Pitre.' ~ ...~Date decision signed - Dcision signe le11-Se.t>tember-2009

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Decision sent on - Dated'envoi de la dcision14-September-2009P RO TE CTE D W H E N C OM PLE TE D - BPRO TG U NE FO IS R EMPLI - B

INS 2244 (08-02) B607210-40 Canada

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BOARD OF REFEREESEmployment. Insurance

CONSEIL ARBITRALAssurance-emploi

BOARD OF REFEREES DECISION Case number - Numro de la causeDCISION DU CONSEIL ARBITRAL 09-0129

Name of appellant - Nom de l'appelant/appelante File number - Numro de dossierChristian Martinstated you are agreeable to her being paid these benefits. 1appreciate that you would like to bepaid 35 weeks of parental benefits as weil due to the fact that your wife gave birth to twins."(Exhibit 5)The claimant appealed the decision of the Commission through legal counsel based on two issues,most notably:(1) Ooes the limitation of parental insurance benefits to one 35 week claim per childviolates the Canadian Charter of Rights and Freedoms, more particularly section 15thereof (Exhibit 10-1).He is a claimant caring for one child Lucie Martin (10-3).

(2) Should not Subsections 12(3) and 12(4) be read in the context of sections 12(1) and 23,and that entitlement to benefits are dependent on the claimant's status as a claimantand not be restricted by a combined 35 week claim by both parents due to the existenceof one pregnancy or one birth (Exhibits 10-3,10-4).EVIDENCE AT THE HEARING:The appellant was present along with his legal counsel Mr. Stephen Moreau.The hearing was recorded.There was new written evidence marked as Exhibits 14 and 15 as weil as a lengthy legalsubmission.The claimant stated as follows:-the infant twin children Lucie and Athena were born premature and underweight, requiringconstant care attention, thatwould overwhelm one parent alone.-due to serious health complications of the mother during the pregnancy, there was special medicalmeasures taken to assist the mother, but in any event, the mother and the clairnant wereexhausted by the pregnancy complications.-The claimant would not be returning to work before January 2010, due to the parental carerequired at home.Chairperson - Prsident/Prsidente

J.D~Member - Membre

o. Pitre ,~ ..~-Date decision s;. ned - Dcision signe le11-SeptemQer-2009,

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Dea ion sent on - Date d'envoi de la dcision14-September-2009/ P RO TEC TE D W HE N C OM PLE TE D - BP RO T G U NE FO IS R EM PLI - B

INS 2244 (08-02) B607210-40 Canada

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Name of appellant - Nom de l'appelant/appelante File number - Numro de dossierChristian Martin -The claimant made an application for parental insurance benefits for one infant Lucie, while themother of the twins successfully applied for parental benefits for the care of the other child Athena.- The Commission denied parental benefits to the claimant for his care of Lucie.FINDINGS OF FACT, APPLICATION OF LAW:The Board finds the relevant facts as follows:-During the pregnancy, the mother had serious health problems, and the children were bornprematurely.-Both parents suffered sleep deprivation, fatigue, and onerous household obligations directlyrelated to the birth of two children.-claimant found the caring of two infants "incredibly difficult", and overwhelming without theassistance of the other parent. Due to the delicate nature of the health of the children after birth,outsidehelp was not possible.-The claimant does not contemplate returning to work before January 2010, because of theonerous overwhelming obligations associated with the needs of caring for two infants.-Because the mother of Lucie has obtained parental benefits for the care of the other child Athenathe Commission denied the claimant parental benefits by the father for the care of their child,Lucie.Issue 1 Canadian Charter of RightsThe Board has no jurisdiction to deal with this ground of appeal. See Tetreault-Gadoury (A-760-86).Issue 2 Section 12(4) of the ActSubsection 12 (4) states:"The maximum number of weeks for which benefits may be paid ... (b) for the care of one or morenew-born or adopted children as a result of a single pregnancy or placement is 35".

Decision sent on - Date d'envoi de la dcision14-September-2009

Member- e by/"",,,_.~~

Member - MeQmbre ~_.,.~R. Pitre .......-----

Chairperson - Prsident/Prsidente

J.DHa~Date declsios signed - Dcision signe le11-Septetnber-2009/

PROTCTED WHEN COMPLETED - BPROTG UNE FOIS REMPLI - BINS2244 (0802) B607210-40 Canada

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Name of appellant - Nom de l'appelanUappelante File number - Numro de dossierChristian Martin . 2eus 22338 ruled that the number of payable weeks is defined in the Act and that rendering acontradictory decision is contrary to law, supported by eus 70706CUS 58849 confirmed that the maximum parental benefits is 35 weeks.The purpose of the Act is clear in cases of a claimant and the birth of children: the benefits are toassist an interruption of earnings as a natural consequence of birth of their children Tomasson vCanada (Attorney General) 2007 FCA 265The Act is to be liberally construed with any ambiguities to be resolved in favour of the claimant.See Sullivan on the Construction of Statutes, 5th ed, at p.467.The issue is where the claimant's wife qualifies for parental benefits for one child Athena does this.disentitle the claimant's husband lor his care of their child Lucie? .It is c1ear that Subsection 12(4)(b) effectively states that once a claimant claims the 35 weeksassociated with that child, the child cannot be used to claim another 35 weeks. The claim is limitedto a "single pregnancy", and only a subsequent pregnancy will allow another claim. ln other words,this subsection allows for a claim for each pregnancy, and not limited to only one pregnancy.It is also clear that the Act is structured to benefit a claimant who has paid for his/her insurancecoverage. Section 12(1) speaks of benefit periods "for a claimant" and benefits paid "to a claimant".Unfortunately Subsection 12 (4) does not specifically refer "to a claimant" in the wording, but thereis no other reasonable interpretation of this section.ln this particular appeal, the father and the mother have two children. Father files claim for Lucie,rnother for Athena.Section 12(3)(b) tells the father that the value of his claim is limited to 35 weeks.Section 12(3)(b) tells the mother that the value of her claim is limited to 35 weeks.

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Name of appellant - Nom de l'appelant/appelante File number - Numro de dossierChristian Martin 1So, the value of their combined claims as claimants is 70 weeks. However, section 12(4)(b) statesthat the total claim for the care of "one or more ... children" is limited to 35 weeks.Since father is claiming 35 weeks for Lucie, nobody else can claim 35 weeks of benefits for thecare of Lucie.Since mother is claiming 35 weeks for Athena, nobody else can claim 35 weeks of benefits for thecare of Athena.The result is that the parents' claims are limited to 35 weeks per claimant per child. Two claimantsmakirig separate claims for separate child are entitled to make separate 35 week claims.DECISION:The Board unanimously allowed the appeal.

Date decisian signed - Dcision signe le11-Septimber-2009/Decision sent on - Date d'envoi de la dcision14-September-2009

Chairperso~identeJ.D Hn/-

Member - Membre~ ~R.Pitre ~

PROTECTED WHEN COMPLETED BPROTG UNE FOIS REMPLI - BINS 2244 (08-02) B607210-40 Canada

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EI Board of Referees Decision on twins