British Columbia

B.C. Human Rights Tribunal to hear case on maternity EI and disability clawbacks

A Vancouver Island family is alleging the B.C. government discriminates against women with a rule that claws back disability payments from EI maternity leave benefits.

Rule that claws back EI maternity benefits if partner is on disability is discriminatory, family alleges

A Sooke, B.C., family is alleging provincial rules discriminate against low-income women who have children by clawing back disability assistance from EI maternity and parental benefits. (The Canadian Press)

The B.C. Human Rights Tribunal has agreed to hear a complaint brought by a Vancouver Island family against the B.C. government, alleging the province's policy of deducting disability payments from EI maternity leave benefits discriminates against low-income women who have children.

The complainants are Jess and Tony Alford, who live in Sooke. When their third child was born in 2014, they were getting by on Tony's disability assistance and a few hundred dollars Jess earned each month at a bookstore.

When Jess went on maternity leave, she qualified for Employment Insurance maternity and parental leave benefits of about $500 a month.

But because EI is classified as "unearned income," every dollar she got came off Tony's disability cheque, leaving the family in a "devastating" financial situation, said lawyer Laura Johnston of the Community Legal Assistance Society.

"To see these families in particular being deprived of that safety net simply because one of the parents has a disability struck us as a very serious human rights violation."

The tribunal agreed to hear the case, although the Alfords filed past the deadline for such a complaint, because of public interest in the issues they raise.

"Where systemic discrimination is alleged, particularly when it involves government services provided to the public, it is in the public interest to get those matters resolved at the earliest opportunity to bridge gaps in the law." wrote tribunal member Walter Pylypchuk.

Forced mother to choose

The family had been allowed to keep Jess's bookstore income — which ranged between $300 and $800 per month — because that fell within the $12,000 limit of what families on disability assistance are allowed to earn each year.

It wasn't much, but it helped them cover groceries and expenses, Johnston said.

The disability assistance was "meager," she said: $750 per month for the family of five's accommodation, and $795 for all other expenses.

But when Jess went on maternity leave, the clawback policy meant all her income was, in effect, gone — even though she had paid into the EI system and qualified for benefits.

"The deductions forced Ms. Alford to choose between depriving her family of the entirety of her employment income or going back to work when she was not physically ready," the tribunal documents stated.

Neutral rule, unequal consequences

The rule itself is neutral, said Johnston. All EI gets deducted from disability assistance, whether the EI is going to a man or a woman.

The problem, when it comes to maternity and parental leave, is that the rule disproportionately hurts women — because they're the ones taking leave to have babies, she said.

"On its face [the policy] doesn't target women. But the real lived impact on women is disproportionately much harder than it is on men," said Johnston.

"This is harder on the children and family members of families that have a female wage earner than families that have a male wage earner."

EI maternity benefits, which cover up to 15 weeks after the baby is born, are only available to women who give birth. EI parental leave benefits cover 35 weeks and can be taken by either parent, are almost always taken by women, said Johnston.

The Alfords are asking for the tribunal to find the rules discriminatory — in the hope that would force the government to change its policy for the 150 or so low-income families that are in similar situations each year, Johnston said.

The minister responsible, Michelle Stillwell, declined to comment on the specifics of this case but defended the policy and the province's "comprehensive social safety net."

"It is expected that people ... exhaust other forms of assistance before coming to the province, where the province then tops them up to ensure that they have the base level rate assistance." said Stillwell, minister of social development and social innovation.

However, Stillwell says it's a policy government will continue to look at as it tries to "assist people in the best way possible."

No date has been set for the B.C. Human Rights Tribunal hearing.

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