Twenty years after the Charter’s equality guarantee came into effect, the Supreme Court of Canada breathed some life into the concept of substantive equality as it pertains to bearing and caring for children. We might even look at this decision as coming full circle, back to 1989 when the Court first pronounced in Brooks v. Canada Safeway, that “those who bear children and benefit society as a whole thereby should not be economically or socially disadvantaged…” The case is Reference re Employment Insurance Act (Can.). In upholding the federal power to provide maternity and parental benefits as part of the Employment Insurance scheme, the unanimous Court recognized the economic costs of motherwork and stepped away from the current tendency to reprivatize women’s social reproductive labour.
The federal government introduced a national unemployment program by constitutional amendment in 1940. Maternity benefits were added in 1971 and parental benefits in 1990. Section 22 of the Act provides for the payment of maternity benefits to an eligible woman for a period of fifteen weeks surrounding the birth of her child. Section 23 provides for the payment of parental benefits for a total of 35 weeks to qualifying parents of a newborn or child placed for adoption. To qualify for either of these benefits the parent claiming them must have worked at least 600 hours in the preceding 52-week period. The benefit payable is 55% of the recipient’s weekly wage to a maximum of $413/week. In families that can afford a 45% cut in income, it is the lower income earning parent who will take the leave and in a heterosexual relationship this is usually the mother. Recent figures show that 98% of maternity/parental benefits recipients are women.
Only claimants with sufficient workforce attachment are eligible for maternity or parental benefits, thus workers who are self-employed, working part-time or on contract and other contingent workers are excluded from the benefit. As a result, more than one third of new mothers do not have access to maternity or parental benefits. These inequalities are at the root of the many criticisms levelled at the scheme over the years. Women’s groups have argued that the scheme was designed to meet the needs of the ideal male worker, one who worked full-time, year round, and who had a partner at home taking care of all domestic labour.
In Quebec, some of these concerns have been addressed. Throughout the 1990s women’s groups and organized labour worked with the government to develop a broader and richer maternity and parental benefits scheme under the opt-out provisions of the Employment Insurance Act. Negotiations between the province and the federal government on the cost sharing dragged on for years. In March of 2002 the Quebec government asked the Court of Appeal to rule on the constitutionality of Sections 22 and 23 of the Employment Insurance Act. The Court determined that the federal government did not have the power to provide maternity and parental benefits through the unemployment insurance scheme. It narrowly construed the federal power stating unemployment insurance could only cover loss of employment for economic reasons. In contrast, maternity or parental benefits were seen as part of a social program aimed at a situation that is personal in nature and therefore properly belonging within provincial jurisdiction. The Court stated that such matters of personal choice could not be covered by an insurance scheme intended to protect against unforeseeable risk.
The decision of the Court of Appeal sent a mixed message. On the one hand, the more progressive Quebec plan that had been hard won by a broad coalition of community activists was upheld. On the other, a finding that the scheme was outside of federal jurisdiction raised serious concerns for the continued availability of any maternity/parental benefits elsewhere in Canada. And, the regressive language of voluntariness was contrary to feminist theorizing about women’s equality and social reproductive work. This mixed message perhaps explains the absence of any feminist interveners before the Supreme Court.
Supreme Court Decision
In October 2005, in a decision where a majority of the judges were women, the Supreme Court upheld the constitutionality of the maternity/parental benefits on two grounds. On the division of powers, the court held that the maternity/parental benefits were in pith and substance a “mechanism for providing replacement income during an interruption of work. This is consistent with the essence of the federal jurisdiction … namely the establishment of a public insurance program the purpose of which is to preserve workers’ economic security and ensure their re-entry into the labour market…”.
The Court rejected the narrow original intent approach of the Court of Appeal, although it did acknowledge the political elements at play and affirmed that the “task of maintaining the balance between federal and provincial powers falls primarily to governments.”
The Court also implicitly brought a substantive equality approach to this case. Madam Justice Deschamps recognized that, “…the benefit derived from procreation extends beyond the benefit to the parents. Children are one of society’s most important assets, and the contribution made by parents cannot be overstated…. The decision to offer women the possibility of receiving income replacement benefits when they are off work due to pregnancy is therefore a social policy decision that is not incompatible with the concept of risk in the realm of insurance, and that can moreover be harmoniously incorporated into a public unemployment insurance plan.”.
This language underlines the benefit society derives from women’s reproductive labour and the collective responsibility to support women in their roles as workers and mothers. The decision also seems to recognize that maternity/parental benefits are designed to meet the particular needs of women: “An interruption of employment due to maternity can no longer be regarded as a matter of individual responsibility.”
This decision represents the strongest statement of the public, collective responsibility for the work of raising future generations since Brooks. At the same time, it affirms an existing mechanism for providing at least some level of that public support. The challenge it presents is that many feminists and other activists in this area agree that maternity and parental benefits are best provided outside of the unemployment scheme, where they could be expanded to cover many marginalized women who are now excluded. The current scheme is still far from meeting the needs of the most vulnerable women in Canadian society and has significant regressive implications even for the more privileged among us.
The strategic question facing activists now is how to continue to promote a broad social program with minimum national standards while advocating additions and enhancements that call into question the program’s continued existence within the Employment Insurance Act. As we grapple with this challenge we should not forget to celebrate the victory this case represents for women who are struggling to reconcile their roles as mothers and workers in contemporary Canadian society.
Lorna Turnbull is Associate Professor of Law at the University of Manitoba. She is the author of Double Jeopardy: Motherwork and the Law.