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The Tribunal administratif du Québec rules in favour of paternity benefits for two fathers

In a recent decision, the Tribunal administratif du Québec ruled that a father was entitled to receive five weeks of paternity benefits under the Act respecting parental insurance (the "ARPI"), even though his spouse had already received the same five weeks of benefits[1].

In this case, two fathers had a child, conceived in the context of a surrogacy contract entered into in a U.S. state, where it is legal. The two fathers then applied for paternity benefits under the ARPI. The Minister of Labour, Employment and Social Solidarity (the "MLESS") granted paternity benefits for five weeks to one of the fathers, but denied them to the other. The MLESS justified this decision on the grounds that the maximum number of weeks of paternity benefits provided for in the ARPI had already been used by one father, so no weeks could be granted to the other father. The father challenged the MLESS decision before the Tribunal administratif du Québec.

The Tribunal indicated that for parents who adopt, the ARPI is unambiguous and provides that each is entitled to five weeks of benefits at 70%, in addition to the 32 weeks of shareable benefits.

The Tribunal rejected MLESS's position that section 9 of the ARPI sets an unavoidable limit of five weeks at 70%, plus 32 shareable weeks, for two-father couples since not going through adoption would have a negative impact on the number of weeks of paternity benefits. He points out that a family made up of two mothers, neither of whom has experienced the pregnancy and childbirth, would be in the same situation as the two fathers.

According to Administrative Judge Jean-Marc Dufour, section 9 of the ARPI does not state that the five-week benefit is "exclusive", nor does it state that the five-week benefit is exclusive to each father. The purpose of the ARPI is to provide income replacement to a parent to enable him or her to be close to the child at the beginning of the child's life, as this is a crucial time for bonding. The result of MLESS's position is that in some cases, children would be deprived of a parent who would have to work, since not all parents can take 5 weeks off work without income replacement.

In the words of the Tribunal, it is "difficult to understand why the legislator would be more restrictive towards families who have not gone through the adoption process."

The Tribunal concludes that section 9 of the ARPI must be interpreted broadly and liberally to ensure consistency with the legislative objective of fostering the bonding of a child with his or her parent from the first weeks after birth. Both fathers are therefore entitled to receive the paternity benefits.

In light of this decision, many employers will need to revise their collective agreements to reflect this interpretation of the ARPI. While many collective agreements only provide for paternity benefits for one father, this decision opens the door to paternity leave benefits for each father. 

If you have any questions on this subject, please do not hesitate to contact a lawyer in our national labour and employment law group.

[1]G.D. v Québec (Travail, Emploi et Solidarité sociale), 2022 QCTAQ 11212.



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