Earlier this year, AFABC member Patti Tomasson and her lawyers challenged the treatment of adoptive parents by the Canadian Employment Insurance system. The basis for her challenge was that adoptive parents are given 15 weeks less paid EI leave than parents who give birth. This is based on the assumption that adoptive parents don’t need the 15 weeks of EI leave supposedly intended as time to recover from pregnancy. Patti challenged this assumption arguing that there is a dual purpose to EI because mothers who give birth use this time to bond as well as to overcome the physical effects of childbirth.

Umpire Krindle [the judge] of the Federal Court acknowledged this when she said, "I find it to be a reasonable conclusion from the evidence that the large majority of pregnant women defer their leave time until after the delivery of the baby, and they do so because of their desire to spend as much time as possible with the baby after the baby’s birth." She added, "I am satisfied on the evidence that the time spent by a mother in the first year attaching to its mother is critical to the child’s development."

The Umpire also found that the current EI legislation lessens the time available for the bonding process to take place. In doing so, she intimates that mothers who give birth to their children are given a benefit based on something other than physical need (the apparent reason for the 15 weeks’ extra leave).

It should be noted that the Umpire could only comment on the case before her (in this case concerning newborns) but, if the EI legislation is eventually changed to equalize the treatment of birth and adoptive parents, all adoptive parents will receive the same leave, not just those who have adopted newborns.

Unfortunately, despite these findings, Umpire Krindle found that she was bound by a previous ruling of the Ontario Court of Appeal that found no discrimination based on a single purpose of the extra leave for biological parents, which is for mothers to recover from pregnancy.

In reacting to the disappointing result Patti told Focus, "I was initially saddened, but once I reviewed the judgment I think there were good findings made by the Umpire based on the evidence presented by our lawyers, and I believe we still have very good arguments to advance in the Federal Court of Appeal. I’m still hopeful that we will be successful." Patti and her lawyers have appealed the Umpire’s decision. She hopes the appeal will be heard in early 2006. She is optimistic that the Court of Appeal will determine that the Umpire was not bound by the Ontario Court of Appeal and that it will reexamine the evidence presented and rule in her favour.