Law Times

PAGE 2 NEWS Two kids equal two claims, board rules Parents of twins score EI victory BY ROBERT TODD Law Times of Referees panel granting ben- efi ts to both parents of new- born twins could have major implications as multiple births become more common. "What the ruling eff ectively A n unprecedented deci- sion from an Employ- ment Insurance Board Employment Insurance Com- mission's interpretation is very clear, which is that one birth gives rise to one claim." Th e case involves Moreau's client, Christian Martin, who argued he should receive a sepa- rate 35-week parental benefi t to help his wife, Paula Critchley, care for their newborn twins. Moreau, a father of twins himself, says Martin and his tough on him and his family fi - nancially because he was going to be without work for a period of time. But he would do it and he would apply for his own 35- week benefi t." While an individual must put in 600 hours in order to make an EI claim, Martin had worked over 2,300, notes Moreau. "If we are talking about an in- surance scheme, he had put in his cation was rejected, Moreau was retained to prosecute an appeal to a three-member board of referees panel estab- lished under the Employment Insurance Act. Th e board backed Martin's case, ruling he could claim a benefi t for his daughter Lucie, while his wife could make a separate claim for their other daughter Athena. Our reading was that, if you have one child, then it will be one claim for that child and if you have a second child, there's a second claim that's allowable for the second child. means is, in every situation where the parents qualify for employment insurance benefi ts . . . every parent of a multiple can make a separate 35-week claim per child," says Cavalluz- zo Hayes Shilton McIntyre & Cornish LLP lawyer Stephen Moreau. "It is a fairly ground- breaking decision . . . . Th e wife don't have family in Otta- wa and were facing the burden of Critchley having to care for the twins on her own. "You need two people at home, certainly for the fi rst pe- riod of time," says Moreau. "[Martin] decided, bar none, he was going to take the time off . It was going to be supremely due. He had paid his premiums." All that stood in Martin's way of receiving benefi ts, says Moreau, was a section of the act that the government used in its argument stating that once one 35-week claim has been made for one or more children, "that's the end of the road." After Martin's initial appli- "Two claimants making sepa- rate claims for separate child are entitled to make separate 35- week claims," wrote the panel. "What struck a chord with the board of referees was the fact that it was undeniable on the ev- idence and it was undeniable in part because the commission did not present their own evidence or contradict the evidence," says Moreau. "Christian Martin had to take time off of work to raise his children. It was a mat- ter almost of necessity." One of the couple's mothers visited to help raise the twins shortly after their April birth, but Moreau says all three of the caregivers were exhausted despite the added help. Moreau says he compiled a long list of sociological and psychosocial evidence confi rm- ing that a second child adds "an enormous degree of stress" to parents and children and can lead to cognitive, psychological, social, and language diffi culties. "We just felt that the regime wasn't recognizing that," he says. "Our reading was that, if you Starting from $62.50 per month More value for your money! 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Moreau suggests the board felt it was reasonable for Mar- tin to take time off work to care for the children, pointing to an aspect of the Employ- ment Insurance Act that allows for a "socially acceptable inter- ruption of earnings." Moreau notes that the case could add fi re to the current political battle over EI in Can- ada, which so far has focused on the need for expanded pro- tection following job loss. But the decision is most timely in light of recent research into the expanding use of in vit- ro fertilization, he says. "Th ere has been an increas- ing prevalence in the last 20 years in Canada and the devel- oped world of twin pregnancies and twin births because people who have been doing IV and spending all that money are im- planting two embryos or more rather than one," says Moreau. "Th is issue is going to be- come even more prevalent as that continues to happen." He points to statistics sug- gesting about three per cent of births in Canada are now multiple births. Between 1994 and 2003, meanwhile, the rate of multiple births increased 35 per cent, he adds. If the board had ruled the act did limit claims to one per parent group, Moreau says he would have challenged the leg- islation under the Charter. Th at argument would have centered on the s. 15 equality clause. Moreau says the govern- ment has 60 days to appeal the decision. A Federal Court judge would act as an umpire in that appeal, he says. Human Resources and Skills Development Canada did not reply by press time to a request for comment on the case. Moreau says he hopes the decision sticks. "I wouldn't want to be on 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. www.lawtimesnews.com Bestcase-reduce costs (LT 1-2x4).indd 1 6/10/09 10:43:32 AM LT0715 the wrong side of this issue and I think opposing this is putting yourself on the wrong side," he says. LT September 21, 2009 • Law timeS

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