Adoptive mother fights for maternity benefits

Katie Rook, CanWest News Service

Published: Wednesday, August 15, 2007

TORONTO - An adoptive mother in British Columbia is asking the Supreme Court of Canada to hear her appeal after a lower court said the woman is not entitled to maternity benefits because she did not give not give birth.

The Federal Court of Appeal last week ruled Patti Tomasson did not deserve 15 weeks of additional employment insurance benefits following the adoption of her daughters because she had not endured the physiological burdens of pregnancy and childbirth.

The federal employment insurance provisions grant parents 35 weeks of paid leave; biological mothers may combine parental and maternity benefits allowing up to 50 weeks of paid leave.

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 birth.

"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 mothers.

"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 disadvantaged group."

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 separate issue.

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.