The Power of Perspectives

The Canadian Bar Association

Kim Covert

Taking leave: Federal and provincial parental leave allowances may differ

June 28 2018 28 June 2018


The storybook version of new parenthood is a glorious nesting time in a tidy house with a baby who sleeps long enough for you to sleep and (if you want a longer bonding period) a choice to stretch Employment Insurance payments for 61 weeks.

The reality can be much different: a long delivery, recovery not improved by lack of sleep – and who needs to shower more than once a month anyway? And then finding out that while the federal government may let you choose up to 61 weeks of parental benefits, your province or territory has no corresponding right to parental leave for that long, meaning you’re going to get a lot less money than you expected, over a shorter period of time.

“The Employment Insurance Act stipulates only the period of benefits a parent may access, not the period of leave employees are entitled to take from work,” the CBA’s Labour and Employment Law Section wrote in a letter to the federal Minister of Families, Children and Social Development.

While the Canada Labour Code allows employees covered by federal labour standards legislation to take up to 63 weeks of parental leave, only Newfoundland and Labrador, New Brunswick, Ontario, Manitoba and British Columbia have amended their laws to entitle employees to parental leave for the full 62 weeks required to access the 61 weeks of extended parental benefits.

Under the EI Act, as of December 2017 parents can claim 35 weeks of benefits at the rate of 55 per cent of average weekly earnings, or 61 weeks at 33 per cent. They have to choose which one before they start to receive benefits, and once that decision is made it can’t be unmade.

“If an employee makes an irrevocable election for 61 weeks of parental benefits and then discovers their employer will not grant them 62 weeks of parental leave, the employee will receive parental benefits at the 33 per cent level, but for a shorter time period.”

The Section urges the government to make the discrepancy between leave allowances clear to claimants before they elect to receive benefits at the lower rate.

After a parent mistakenly elects to receive the lower rate, “If they return to work after 36 weeks of leave (the period of leave permitted in employment standards legislation in many jurisdictions) they will miss out on a considerable portion of EI parental benefits that they cannot recover.”

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