Tomasson, the mother of Hannah, 8, and Sarah, 3,
is disappointed with the decision and says it
challenges her to explain to her daughters why
they were not allowed to spend as much time with
their mother at birth as compared with
non-adopted children. Both Hannah and Sarah were
placed with Tomasson family directly after
"What's upsetting is that my children
would ever be (discriminated against) because of
their status as adopted children," she said in
an interview on Wednesday. "I am disappointed
(with the decision.) I started this action
because I couldn't tell my first daughter about
how adoption was perceived in Canada without
saying that I had been discriminated against
because I was an adoptive mother."
In a judgment delivered Aug. 9, Justice Marc
Nadon said granting an adoptive mother maternity
benefits would discriminate against biological
"Exact parity between biological and adoptive
mother would result, in my view, in
discrimination against biological mothers. In
fact, maternity leave provisions are
indispensable to ensure the equality of women in
general, who suffer disadvantage in the
workplace due to pregnancy-related matters.
"The distinction created in favour of
pregnant women is legitimate because it seeks to
accommodate their needs in the workforce as a
Maternity benefits can be collected up to
eight weeks ahead of the expected date of birth
if the mother chooses to stop working while in
the advanced stages of pregnancy.
Tomasson's lawyer, Andrea Mackay, believes
the court ought to have focused on the effect of
maternity benefits rather than their purpose.
Mackay acknowledges the physical impact of
childbirth but insists adoptive mothers and
children are being denied an equal opportunity
to bond and attach.
In his decision, Nadon suggested that should
maternity benefits be made available to adoptive
mothers, adoptive fathers and even biological
fathers might also be entitled.
Tomasson, who is a lawyer herself, and her
lawyers believe paternity benefits are a
Karen Madeiros, executive director of the
Adoptive Families Association of B.C., says
adoptive parents are continually appealing
employment insurance provisions they believe
discriminate against them.
"I continue to be outraged that there
continues to be (a) lack of understanding of the
issues for adoptive parents and the blatant
inequality between what is given in maternity
(pregnancy) leave and what is not given for
other such as adoptive parents who are bringing
home children," she said.
Madeiros is calling for a provision that
acknowledges and "equal but different benefit"
for adoptive families.
Most birthing mothers require a fraction of
their 15-week pregnancy leave for medical
recovery; the majority of maternity leave is
spent bonding, she said.
In dismissing the application, the Federal
Court of Appeal joins the appellate courts of
Ontario and British Columbia.
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