Ei Board Of Referees Decision On Twins

BOARD OF REFEREES

CONSEIL ARBITRAL

Employment Insurance

Assurance-em ploi Case number - Numéro de la cause

BOARD OF REFEREES DECISION

09-0129

DÉCISION DU CONSEIL ARBITRAL

Name of appellant - Nom de l'appelant/appelante

File number - Numéro de dossier

•

Christian Martin Service Canada Centre address - Adresse du Centre Service Canada 300 Sparks St., 3rd Floor Ottawa ON K1A OJ6

Place of hearing - Endroit de l'audience West 1 300 Sparks St., 3rd Floor Place de Ville, Podium Building Ottawa ON K1A OJ6

Atlending pariies and witnesses heard during the hearinq wiih their title.jn-person, teleconference, videoconference or on the record Parties présentes et témoins entendus à l'audience ainsi que leur titre, en personne, téléconférence, vidéoconférence ou sur la foi du dossier Christian Martin - Claimant Stephen Moreau - Cavalluzzo Hayes Shi Iton Mclntyre & Cornish LLP - Claimant representative

Date Hearing

audio recorded

lZl

Enregistrement

de l'audience

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DECISION OF THE BOARD OF REFEREES

11-September

-2009

DÉCISION DU CONSEIL ARBITRAL

ISSUE: Whether or not the claimant qualifies for a benefit period by virtue of section 12(4) of the Employment 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 April 271h 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 parental benefits (Exhibit 6) to care for their twin daughter Athena. ln response to the claimant's application for parental benefits, the Commission advised the claimant as follows:" ... you have not proven that you are the parent that will be taking the 35 weeks of parental benefits for this birth. Your wife has applied for the 35 weeks of parental and you have ntlPrésidente

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Date decision signed - Décision signée le 11-Se.t>tember-2009

Decision sent on - Date d'envoi de la décision 14-September-2009

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Canada 1

BOARD OF REFEREES

CONSEIL ARBITRAL

Employment. Insurance

Assurance-emploi Case number - Numéro de la cause

BOARD OF REFEREES DECISION

09-0129

DÉCISION DU CONSEIL ARBITRAL

Name of appellant - Nom de l'appelant/appelante

File number - Numéro de dossier

Christian Martin stated you are agreeable to her being paid these benefits. 1appreciate that you would like to be paid 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 child violates the Canadian Charter of Rights and Freedoms, more particularly section 15 thereof (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 claimant and not be restricted by a combined 35 week claim by both parents due to the existence of 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 legal submission. The claimant stated as follows: -the infant twin children Lucie and Athena were born premature and underweight, requiring constant care attention, thatwould overwhelm one parent alone. -due to serious health complications of the mother during the pregnancy, there was special medical measures taken to assist the mother, but in any event, the mother and the clairnant were exhausted by the pregnancy complications. -The claimant would not be returning to work before January 2010, due to the parental care required at home. Chairperson

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Date decision s;. ned - Décision signée le

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11-SeptemQer-2009 ,

14-September-2009

ion sent on - Date d'envoi de la décision

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PROTECTED WHEN COMPLETED - B PROTËGË UNE FOIS REMPLI - B

Canada 2

BOARD OF REFEREES

CONSEIL ARBITRAL

Employment Insurance

Assurance-emploi Case number - Numéro de la cause

BOARD OF REFEREES DECISION

09-0129

DÉCISION DU CONSEIL ARBITRAL

Name of appellant - Nom de l'appelant/appelante

File number - Numéro de dossier

•

Christian Martin

-The claimant made an application for parental insurance benefits for one infant Lucie, while the mother 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 born prematurely. -Both parents suffered sleep deprivation, fatigue, and onerous household obligations directly related to the birth of two children. -claimant found the caring of two infants "incredibly difficult", and overwhelming without the assistance 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 the onerous 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 Athena the Commission denied the claimant parental benefits by the father for the care of their child, Lucie. Issue 1 Canadian Charter of Rights The Board has no jurisdiction to deal with this ground of appeal. See Tetreault-Gadoury (A-760-

86). Issue 2 Section 12(4) of the Act Subsection 12 (4) states: "The maximum number of weeks for which benefits may be paid ... (b) for the care of one or more new-born or adopted children as a result of a single pregnancy or placement is 35".

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Date declsios signed - Décision signée le

Decision sent on - Date d'envoi de la décision

11-Septetnber-2009

14-September-2009

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PROTËCTED WHEN COMPLETED - B PROTÉGÉ UNE FOIS REMPLI - B INS 2244 (08·02) B 607210-40

Canada 3

BOARD OF REFEREES

CONSEIL ARBITRAL

Employment Insurance

Assurance-emploi Case number - Numéro de la cause

BOARD OF REFEREES DECISION

09-0129

DÉCISION DU CONSEIL ARBITRAL

Name of appellant - Nom de l'appelanUappelante

File number - Numéro de dossier

.2

Christian Martin

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22338 ruled that the number of payable weeks is defined in the Act and that rendering a contradictory decision is contrary to law, supported by eus 70706 CUS 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 to assist an interruption of earnings as a natural consequence of birth of their children Tomasson v Canada (Attorney General) 2007 FCA 265 The 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 weeks associated with that child, the child cannot be used to claim another 35 weeks. The claim is limited to 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 pa id for his/her insurance coverage. 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 there is 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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BOARD OF REFEREES

CONSEIL ARBITRAL

Employment Insurance

Assurance-emploi Case number - Numéro de la cause

BOARD OF REFEREES DECISION

09-0129

DÉCISION DU CONSEIL ARBITRAL

Name of appellant - Nom de l'appelant/appelante

File number - Numéro de dossier

Christian Martin

1

So, the value of their combined claims as claimants is 70 weeks. However, section 12(4)(b) states that the total claim for the care of "one or more ... children" is limited to 35 weeks. Since father is claiming 35 weeks for Lucie, no body else can claim 35 weeks of benefits for the care of Lucie. Since mother is claiming 35 weeks for Athena, nobody else can claim 35 weeks of benefits for the care of Athena. The result is that the parents' claims are limited to 35 weeks per claimant per child. Two claimants makirig separate claims for separate child are entitled to make separate 35 week claims. DECISION: The Board unanimously allowed the appeal.

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Date decisian signed - Décision signée le

Decision sent on - Date d'envoi de la décision

11-Septimber-2009

14-September-2009

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PROTECTED WHEN COMPLETED • B PROTÉGÉ UNE FOIS REMPLI - B INS 2244 (08-02) 607210-40

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