The federal Liberals tabled their annual budget in March, revealing a new plan to extend parental leave and benefits from 12 to 18 months.

At first blush, the extension seems like a welcome change for new parents. An 18-month leave would allow parents to spend more time at home bonding with their newborn children, would provide flexibility in crafting return-to-work plans and would help parents avoid costly infant day care. The budget does not allocate part of the leave to fathers or nonbirth parents, but parents can split the leave however they choose. Who could object to that?

The devil, as they say, is in the details. We don’t yet have those details, and we won’t until we see how the provinces respond and whether they’ll amend their employment standards legislation in accordance with the federal proposal.

It’s worth mentioning that the 18 months of benefits does not add 6 months of paid leave; rather, it offers the option to take 12 months worth of employment insurance (EI) over 18 months, by spreading out benefits over the longer time span. That means this measure isn’t going to benefit all families, since not all families can afford that reduced monthly income.

As well, EI benefits are paid and managed by the federal government, but employment standards are established by provincial governments. So, if Ontario, for example, didn’t amend its Employment Standards Act to include the new option and failed to demand employers provide 18 months of leave, the federal measures would have no impact at all there.

How the provinces choose to respond to the measure will dictate whether the measure makes parents’ lives easier or makes many women’s lives much more difficult. How can this extension, which is a purely optional and gender-neutral option, disadvantage women?

It has to do with the feminization of poverty. This concept has long been described by scholars, and it made its way into Canadian common law jurisprudence in 1992, with the Supreme Court’s decision in Moge v. Moge. Madam Justice L’Heureux Dubé determined that a court’s inquiry, when looking at questions of spousal support, should focus on “the effect of the marriage in either impairing or improving each party’s economic prospects.”

Justice L’Heureux Dubé went on to find that the Divorce Act required a fair distribution to alleviate the economic consequences of marriage or marital breakdown. Finally, she also found that “in many if not most marriages, the wife still remains the economically disadvantaged partner.” Elsewhere, L’Heureux Dubé cited an overwhelming body of evidence and statistics that demonstrated that the “economic impact of divorce upon women is a phenomenon the existence of which cannot reasonably be questioned.”

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Why were women, in 1992, seen to be systematically disadvantaged by marriage? It was simply because women were primarily responsible for child care during and after marriage. That responsibility translated into diminished earning capacity, especially when a woman re-entered the labour force after being out of it completely or working part-time hours.

It’s easy to assume that things have changed since 1992, that fathers now are taking on more of the responsibilities at home, and that the economic disadvantages new mothers face are diminishing. But this would not be true. According to 2014 Statistics Canada data, only 9.4 percent of new fathers in provinces outside Quebec planned to take a parental leave that year. In Quebec, where a portion of parental leave is reserved specifically for fathers, 78.3 percent of them planned to take parental leave.

Quebec isn’t alone in reserving parental leave for fathers; Sweden has done so with great success, and studies there have suggested that not only does the policy lessen the gendered economic consequences of the leave, it gives fathers more opportunity to bond with their offspring, and as a natural result they take on a greater share of the parenting responsibility.

Ottawa, as well as the provinces and territories, should follow Quebec’s example. It’s a proven way to ensure that lengthy parental leave does not disproportionately hurt women. When Ontario and other provinces contemplate making changes to their employment standards to accommodate the federal parental leave initiative, they need to ensure a portion of the leave is reserved specifically for the nonbirth parent.

The federal government is led by a self-proclaimed feminist, but Prime Minister Justin Trudeau’s new parental leave plan, while well-intentioned, still leaves a lot to be desired. It will be up to the provinces to ensure that its implementation at the provincial level fixes the gender divide rather than deepening it.

Photo: By sirtravelalot

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Jennifer Mathers McHenry
Jennifer Mathers McHenry is a founding partner at Mathers McHenry & Co. and was previously an employment lawyer at Teplitsky Colson in Toronto.

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