Jurisdiction of Maternity and Parental Benefits Lies with the Provinces / Les prestations de materni

11 October 2004
October 11, 2004

On January 27, 2004, the Quebec Court of Appeal ruled that the maternity benefits and parental benefits provisions of the Employment Insurance Act encroach upon provincial jurisdiction and are beyond the jurisdiction of the Parliament of Canada. This decision calls for action by us, since the funding of maternity leaves and parental leaves is a crucial issue in the fight for women’s social and economic equality. Following pressure by, inter alia, the Network on Women’s Social and Economic Rights, a coalition of Canadian feminists, the federal government appealed the Quebec decision. The case has provisionally been set down for hearing by the Supreme Court on January 11, 2005.

The Court of Appeal decision has aroused strong feelings within the women’s movement in Canada. The possibility that the decision will be upheld worries women outside Quebec who fear that the transfer of responsibility from the federal government to the provinces will result in much less beneficial programs of maternity benefits and parental benefits.

Ironically, the questions put to the Court of Appeal by the Government of Quebec were part of a political strategy aimed at forcing the federal government to negotiate a funding agreement with Quebec on the province’s own parental insurance plan. The product of a hard-fought battle by a very broad coalition, the Regroupement pour un régime québécois d’assurance parentale, this plan is much more inclusive and generous than the federal scheme. Among other things, it covers all mothers (and all fathers) with an annual income of at least $2,000, irrespective of whether they are employed or self-employed. The income replacement rate (between 70% and 75%) is higher than the federal 55% and the maximum insurable income – in 2003, $53,500 indexed annually – compares to the federal government’s $39,000, unindexed.

In the context of last summer’s federal election and after several years of unproductive bargaining, the two governments signed an agreement in principle on the funding of the Quebec plan. In principle, the Quebec parental insurance plan is to come into force on January 1, 2006. However, there is still some uncertainty as to jurisdiction over maternity benefits and parental benefits. On the one hand, if the Supreme Court of Canada overturns the Court of Appeal decision, Quebec might very well end up the loser in terms of its autonomy to develop social programs. And we know that, all proportions guarded, Quebec’s social programs are often progressive and rather favourable to women. On the other hand, if the decision is upheld, the big losers will be the mothers (and fathers) outside Quebec.

The Quebec Court of Appeal decision has created some personal and political rifts between feminists in Quebec and Canada. The legal tangle surrounding this decision illustrates the importance, in fact the urgency, of developing progressive strategies that take account both of Quebec’s autonomy and the importance of having cross-Canada standards for social programs outside Quebec. Maternity and parental benefits are just one among other issues such as health or child custody services, to name only those.

The challenge is to articulate a vision of an asymmetrical federalism that could unite feminists and all progressive forces in Quebec with those in Canada. All too often the demands of progressive federalists in the area of social programs have foundered because the feminists and other progressive forces in Quebec cannot relate to calls for the adoption of “national standards”. And de facto asymmetrical federalism – for example, the distinct Canada and Quebec Pension Plans or the agreement to rebate Quebec workers’ employment insurance contributions in order to finance part of the Quebec parental insurance plan – do not represent an acceptable solution for Quebecers, either. It forces Quebec to make do on a case-by-case basis, and its effectiveness is subordinate to the political will to negotiate on the part of the federal government, which has so far proved rather fickle.

NAWL is exploring ways in which to end the current impasse in maternity and parental benefits and in other areas as well. Among other things, we are studying the possibility of situating our demands for certain social program standards within an international human rights framework, which would have the advantage of obviating the issue of the distribution of powers.

Five provinces will be intervening in the appeal before the Supreme Court: Newfoundland and Labrador, Nova Scotia, New Brunswick, Ontario and Saskatchewan. The Canadian Labour Congress and the Income Security Advocacy Centre have also applied for leave to intervene in this case. To follow the developments in the case, check out the information on docket 30187 at the Supreme Court web site, www.scc-csc.gc.ca.

Rachel Cox is an independent researcher and lawyer specializing in human rights. She has been doing research and action research for ten years in the area of labour, particularly with women’s groups. She works with the NAWL working group on maternity benefits and parental benefits.

about NAWL
The National Association of Women and the Law is a not-for-profit feminist organization that promotes the equality rights of women through legal education, research and law reform advocacy.
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