This case concerned the availability of parental benefits to mothers and fathers, and the ability of courts to extend legislation to apply more broadly so it would be Charter-compliant. 

LEAF acted as a party in the case before the Federal Court, Federal Court of Appeal, and Supreme Court of Canada. 


Shalom Schachter applied for benefits to enable him to care for his child once his wife returned to work. He initially requested that he be given maternity benefits under s. 30 of the Unemployment Insurance Act, 1971. He later changed his request to “paternity benefits” under s. 32 of the Act, which were directed at adoptive parents and could be shared between them. 

Mr. Schachter’s request was denied, and a Board of Referees dismissed his appeal. He brought a claim to the Federal Court, arguing that the denial of benefits violated his equality rights under s. 15 of the Charter.  


LEAF’s arguments focused on the needs of biological mothers, and the disadvantages faced by women who bore the burden of providing childcare. Before the Supreme Court, LEAF’s arguments centered on the remedy of extension. LEAF argued that, where a provision promotes the equality of a disadvantaged group but violates the Charter because its benefits exclude another disadvantaged group, the courts should not strike down the legislation unless that would promote the equality of both groups. Instead, the court should extend the benefits to cover the other disadvantaged group as well, using s. 24(1) of the Charter


The Federal Court found that s. 32 violated s. 15 as it discriminated between biological parents and adoptive parents. The court extended the s. 32 benefits to natural parents. The Federal Court of Appeal upheld the decision.   

The Supreme Court, however, decided not to extend the benefits to biological parents. A majority of the Court agreed that the benefit was under-inclusive, and that striking the provision down immediately would be inappropriate because it would deprive many people of the benefit without giving Mr. Schacter any benefit himself.  

Although in some cases it could be appropriate to extend benefits to the excluded group, the Court held that this was not one of those cases. The nature of the benefit and the size of the excluded group meant that extending the benefit would potentially change the entire legislative scheme. Parliament was in a better position to make the decision as to how to change the provision.  

As a result, the Court said that the provision was invalid, but said that the provision would continue to operate for a period of time so Parliament could decide what to do and adoptive parents could continue to receive benefits. 

LEAF is grateful to Mary Eberts, who acted as counsel at all three levels of court. LEAF is also grateful to E.J. Babin, counsel before the Federal Court, and Jenifer Aitken, counsel before the Federal Court of Appeal and Supreme Court of Canada, as well as Susan Hodgson, Ottawa agent for LEAF. 

Download the factum here.

Read the Federal Court’s decision here, the Federal Court of Appeal’s decision here and the Supreme Court of Canada’s decision here

Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].