Paternity leave by father, rules the Court
Five weeks each. Two fathers fought for the Quebec Parental Insurance Plan (QPIP) to grant them 10 weeks of paternity leave – rather than five – to spend with the baby they had after a surrogate mother. The Administrative Tribunal of Quebec ruled in their favour, correcting "discriminatory treatment" in the eyes of the two fathers.
VÉRONIQUE LAROCQUETHE PRESSThe lives of Gabriel Destrempe Rochette and her spouse changed last March. They finally met their son, born to a surrogate mother in the United States.
Back home, the two fathers each applied for five weeks of paternity leave benefits. To their astonishment, only one of the two requests was accepted. "I said to myself, we are two fathers on the birth certificate [issued in the United States], the QPIP will recognize our paternity leave," says Gabriel Destrempe Rochette.
In the course of discussions with QPIP officers, the lawyer by profession understands that if his application has been refused, it is because only one of the two fathers can obtain the five weeks of paternity leave.
However, the couple can share the 32 weeks of parental leave, for a total of 37 weeks. This number is lower than the 55 weeks offered to parents who give birth to a baby or those who adopt a child.
On the QPIP website, benefit tables show the weeks granted after childbirth and adoption, but none detail the number of weeks allocated in the case of a pregnancy for others that is not followed by an adoption (which is the case when both fathers appear on the birth certificate).
Questioned about this number by La Presse, the Ministère du Travail, de l'Emploi et de la Solidarité sociale sent this answer by email: "According to the Act respecting parental insurance, the birth of a child entitles you to a maximum of 5 weeks of exclusive benefits (to the father or second parent who has not given birth), and a maximum of 32 weeks of shareable parental benefits between the two parents whose filiation is recognized on the birth certificate. »
This is the position defended by the Ministry before the Administrative Tribunal of Québec (TAQ), which was invited to consider for the first time a request for paternity leave for each father of a child born of pregnancy for others (also called surrogacy or surrogacy).
For his part, Gabriel Destrempe Rochette argued that five weeks of paternity benefits should be granted per father and not per birth.
The TAQ considered that the law should be interpreted in the sense advocated by Gabriel Destrempe Rochette.
'Crucial moment'In its decision rendered in November, the Tribunal recalled that the purpose of the Act respecting parental insurance is "to provide income replacement to a parent in order to allow him to be close to his child at the beginning of his life, a crucial moment to form emotional ties."
Il indique que la position du Ministère « a pour résultat que, dans certains cas, des enfants seront
privés de la présence [d’un] parent, qui devra travailler ».
The TAQ also indicates that it is "difficult to understand why" the Ministry grants five weeks of benefits to two adoptive parents, but not to those who use surrogacy.
Gabriel Destrempe Rochette is very happy with the judgment and hopes that it will help other families. He wondered, however, how many parents in his situation had been deprived of time with their children because they did not have the tools or the strength to take legal action.
"There is not just a family model with a dad, a mom, a little boy and a little girl. There are plenty of family models in Quebec. I think it's good that all models are recognized and have the same rights, always in the interest of the child, "says the young father.
Request for reviewInformed of the TAQ's recent decision, Julie-Yan Fontaine and her spouse Mathieu Blanchette filed a request for review of their file with the QPIP. The couple from Lac-Saint-Jean, who have resorted to pregnancy for others in Ontario, hope that this step will allow them to spend with their little Tristan, 11 months, a few weeks longer than the 37 granted for the moment.
If the couple used a surrogate woman to realize their dream of having a child, it is for health reasons, says the mother who has already had to terminate a pregnancy at 20 weeks. "The doctors told me it would be better if I didn't have a pregnancy
anymore and turned to a pregnancy for others."
Mathieu Blanchette, Julie-Yan Fontaine and little Tristan
The couple chose to use in vitro fertilization. "Biologically speaking, the mother is 100% Julie-Yan," says Mathieu Blanchette.
Despite this, Julie-Yan Fontaine was not entitled to any of the 18 weeks of maternity leave benefits since they are reserved for mothers who give birth. As with Gabriel Destrempe Rochette, he was only granted weeks of parental leave.
"'You're a special case.' "That's always what I was told," says the mother about her discussions with QPIP agents.
Following the TAQ's decision, will the QPIP review the number of weeks granted to families who resort to pregnancy for others? "The Québec Parental Insurance Plan takes note of this decision and intends to comply with it. Work is underway to determine the implications of this judgment, "replied, by email, the Ministry of Labour, Employment and Social Solidarity.
* The number of weeks presented in the article corresponds to those of the QPIP basic plan.
VÉRONIQUE LAROCQUETHE PRESSThe lives of Gabriel Destrempe Rochette and her spouse changed last March. They finally met their son, born to a surrogate mother in the United States.
Back home, the two fathers each applied for five weeks of paternity leave benefits. To their astonishment, only one of the two requests was accepted. "I said to myself, we are two fathers on the birth certificate [issued in the United States], the QPIP will recognize our paternity leave," says Gabriel Destrempe Rochette.
In the course of discussions with QPIP officers, the lawyer by profession understands that if his application has been refused, it is because only one of the two fathers can obtain the five weeks of paternity leave.
However, the couple can share the 32 weeks of parental leave, for a total of 37 weeks. This number is lower than the 55 weeks offered to parents who give birth to a baby or those who adopt a child.
On the QPIP website, benefit tables show the weeks granted after childbirth and adoption, but none detail the number of weeks allocated in the case of a pregnancy for others that is not followed by an adoption (which is the case when both fathers appear on the birth certificate).
Questioned about this number by La Presse, the Ministère du Travail, de l'Emploi et de la Solidarité sociale sent this answer by email: "According to the Act respecting parental insurance, the birth of a child entitles you to a maximum of 5 weeks of exclusive benefits (to the father or second parent who has not given birth), and a maximum of 32 weeks of shareable parental benefits between the two parents whose filiation is recognized on the birth certificate. »
This is the position defended by the Ministry before the Administrative Tribunal of Québec (TAQ), which was invited to consider for the first time a request for paternity leave for each father of a child born of pregnancy for others (also called surrogacy or surrogacy).
For his part, Gabriel Destrempe Rochette argued that five weeks of paternity benefits should be granted per father and not per birth.
The TAQ considered that the law should be interpreted in the sense advocated by Gabriel Destrempe Rochette.
'Crucial moment'In its decision rendered in November, the Tribunal recalled that the purpose of the Act respecting parental insurance is "to provide income replacement to a parent in order to allow him to be close to his child at the beginning of his life, a crucial moment to form emotional ties."
Il indique que la position du Ministère « a pour résultat que, dans certains cas, des enfants seront
privés de la présence [d’un] parent, qui devra travailler ».
The TAQ also indicates that it is "difficult to understand why" the Ministry grants five weeks of benefits to two adoptive parents, but not to those who use surrogacy.
Gabriel Destrempe Rochette is very happy with the judgment and hopes that it will help other families. He wondered, however, how many parents in his situation had been deprived of time with their children because they did not have the tools or the strength to take legal action.
"There is not just a family model with a dad, a mom, a little boy and a little girl. There are plenty of family models in Quebec. I think it's good that all models are recognized and have the same rights, always in the interest of the child, "says the young father.
Request for reviewInformed of the TAQ's recent decision, Julie-Yan Fontaine and her spouse Mathieu Blanchette filed a request for review of their file with the QPIP. The couple from Lac-Saint-Jean, who have resorted to pregnancy for others in Ontario, hope that this step will allow them to spend with their little Tristan, 11 months, a few weeks longer than the 37 granted for the moment.
If the couple used a surrogate woman to realize their dream of having a child, it is for health reasons, says the mother who has already had to terminate a pregnancy at 20 weeks. "The doctors told me it would be better if I didn't have a pregnancy
anymore and turned to a pregnancy for others."
Mathieu Blanchette, Julie-Yan Fontaine and little Tristan
The couple chose to use in vitro fertilization. "Biologically speaking, the mother is 100% Julie-Yan," says Mathieu Blanchette.
Despite this, Julie-Yan Fontaine was not entitled to any of the 18 weeks of maternity leave benefits since they are reserved for mothers who give birth. As with Gabriel Destrempe Rochette, he was only granted weeks of parental leave.
"'You're a special case.' "That's always what I was told," says the mother about her discussions with QPIP agents.
Following the TAQ's decision, will the QPIP review the number of weeks granted to families who resort to pregnancy for others? "The Québec Parental Insurance Plan takes note of this decision and intends to comply with it. Work is underway to determine the implications of this judgment, "replied, by email, the Ministry of Labour, Employment and Social Solidarity.
* The number of weeks presented in the article corresponds to those of the QPIP basic plan.
