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Paternity Leave for Lawyers in Canada – Two Solitudes

By Bob Tarantino

Lawyer holding his son

What separates fathers in Quebec from fathers in the rest of Canada? A chasm. This gap arises from cultural values and public policy – and it is a gap that law firms across the country would do well to try and bridge.
 
Compared to their brethren in other provinces, Quebec fathers are enthusiastic participants in parental leave programs: they are 10 times more likely to claim paternity benefits. Statistics Canada recently reported that the number of eligible fathers in Quebec claiming paternity or parental leave has vaulted from 22 per cent to 56 per cent over the last few years, while participation rates for those outside Quebec remain mired in the low teens.
 
The societal tides that are sweeping through Quebec and causing such a marked increase in fathers’ participation following birth have, at least at their high-water mark, even been felt in Quebec’s legal profession. However, across the country the received culture of the legal profession appears to be resistant to a complete embrace of paternity leave.
 
That structural failure could prove to be detrimental in the long term: as reported in the Catalyst Beyond A Reasonable Doubt series of reports on employment flexibility in Canadian law firms, “younger men in particular are more active in childrearing and home-related duties … [and they] share a desire to gain more flexibility in their work schedules in order to meet these … demands.”
 
The same series reported that law firms that engender positive views of their work-life culture produce associates with greater loyalty.
 
Quebec society and Quebec employers are doing something right, or at least something decidedly different, when it comes to paternity leave. That raises the questions: what they doing, how can it be improved upon and what can other firms do to emulate their successes?

Existing Parental/Paternity Leave Programs

Parental leave rights across the country are a latticework of provincial and federal laws. By virtue of provincial employment standards legislation, pregnant mothers are entitled to “pregnancy leave” (intended to provide a period of preparation for and recovery from the birthing process), with most provinces and territories mandating a 17-week term (employee lawyers, as distinct from partners, in British Columbia and Newfoundland and Labrador are not entitled to such leave as employment standards legislation in those provinces does not apply to lawyers).
 
“Parental leave” is a longer period intended to facilitate and encourage the parent/child bond – provincial laws set parental leave terms at an average of 35 weeks, and many provinces allow parental leave to be used by either parent. Employers are under no legal obligation to continue paying an employee who is on pregnancy or parental leave, though some elect to do so, whether from competitive or altruistic motivations. However, the federal Employment Insurance program entitles employees who meet minimum hours-worked requirements to EI benefits equal to 55 per cent of the employee’s salary up to a maximum of $413 per week.
 
The innovations that Quebec has introduced to this framework are simultaneously indicative of the cultural differences at play and an effort to amplify those cultural traits. In the first instance, employees participating in the Quebec Parental Insurance Plan (QPIP) are entitled to benefits equal to 70 per cent of weekly income up to $767 per week.
 
More radically, in 2006 Quebec introduced a five-week, non-transferable paternity leave with income replacement at 70 per cent of weekly income. In other words, a leave program specifically designed to encourage new fathers (and only new fathers if the father does not elect to use the paternity leave, the weeks are lost and cannot be used by the mother) to take time off work and spend it with the new addition to their family. In many ways, the Quebec paternity leave program is at the leading edge of paternity benefits. A StatsCan comparison of selected OECD countries showed that the QPIP paternity benefits are not just the longest in duration but among the most lucrative to the recipient.

The Effects of Enhanced Paternity Leave in Quebec

Introduced in January 2006, the impact of the new QPIP paternity benefits has been immediate and expansive: the rate of paternity leave participation in Quebec jumped nearly 25 per cent compared to 2005. That rapid rate of change was the continuation of a trend that has been observed over the past decade: across Canada (including Quebec), as government policies have been altered, the participation rate by fathers in parental/paternity leave programs has leaped upwards from 3 per cent in 2000 to 20 per cent in 2006.
 
Katherine Marshall, with the Labour and Household Surveys Analysis Division at Statistics Canada, attributes the changes in participation rates to changes in parental leave program rules: the extension of paid benefits from 10 to 35 weeks and the elimination of a two-week unpaid waiting period (both implemented in 2001) account for a significant portion of the increase. Reaching the 20 per cent participation rate noted above was primarily due to the massive increase in participation in Quebec. Marshall notes this is “mainly attributable to the introduction of the QPIP” in 2006. But dollars and cents can’t entirely account for the discrepancy in rates between Quebec and the rest of Canada: even before the introduction of the QPIP, participation rates in Quebec were more than twice as high as the rest of the country.

Paternity Leave Among Lawyers

When examining paternity leave among lawyers, it appears there are really two cultural cleavages at work: one between Quebec and the rest of Canada, and one between professional firms (including lawyers) and other work environments. No formal studies have been done, but anecdotal evidence indicates that the perceived cultural difference in society at large, and the broader trends outlined above, have an impact in law offices across the country.
 
Ogilvy Renault LLP, with nearly 450 lawyers and agents spread across two provinces (offices in Montreal, Quebec City, Ottawa and Toronto) confirmed that of the five male lawyers and agents who have taken some form of parental leave since January 2007, all were in Quebec. In contrast, Bennett Jones LLP, with more than 350 lawyers in offices in Alberta and Ontario (and none in Quebec), reported that none of its male lawyers have made use of parental leave.
 
Within Quebec, the Barreau du Québec’s “Bébé Bonus” program allows a new parent (either birth or adoption) who has taken a minimum 6-week leave to reclaim one-half of their annual dues paid to the Barreau. The program has seen a significant increase in the number of male lawyers participating since 2005–2006, when 33 men made use of it. During the most recent year, the numbers had increased to 58 male participants. That remains far below the numbers of female participants, however: over the last three years total female participants ranged from 282 to 395 per year.
 
Fanie Pelletier, conseillère à l’équité with the Barreau du Québec, advises that, though hard figures are not available, her sense is that even in Quebec paternity leave is still relatively rare among male lawyers as compared to non-lawyers, and when it is taken, it tends to be for shorter periods of time. Pelletier cites a raft of causes for the seeming reluctance among male lawyers to take advantage of the programs available to them: the novelty of paternity leave results in peer pressure from colleagues who look askance at non-conformity, the difficulties of managing client relationships and files, and simple financial pressure all play a role.
 
Marie-Chantal Perreault, national general manager – human resources and internal communications at Ogilvy Renault, cites a similar set of reasons, and notes that male lawyers often don’t take off the entire length of time to which they are entitled. The impact of leave on the family budget appears to play a determinative role in answering whether a father will take paternity leave. As StatsCan notes, “total family income is not as important as how much the family will lose if the father rather than the mother stays home.” In other words, since the lawyer in the family is likely to be the higher-earning partner, if that partner is also the father, the disincentive to taking paternity leave is multiplied.
 
Pelletier also notes structural issues that impact on the latitude available to male lawyers to take paternity leave. More males work in private practice (77 per cent of all lawyers in private practice are male) compared to settings outside private practice (where 44 per cent of lawyers are male), and such non-private settings may have more progressive cultural environments, as well as more advantageous formal policies or collective agreements, which encourage, or at least benignly accommodate, paternity leave.

Paternity Leave on the Rise in Quebec

That being said, all indications are that paternity leave among lawyers in Quebec is on the rise. Policy changes in Quebec have also, as anticipated, created a form of feedback loop between social attitudes and legislative reforms. As Michel F. (not his real name), a young lawyer in a Montreal firm who recently took a three-week paternity leave, notes, “the legislative changes … are starting to have an impact.”
 
In some respects, it may simply be a matter of time: Michel notes that there is an “obvious” generational difference, and Simon M. (not his real name), a senior lawyer who is expecting his third child, comments that younger lawyers seem temperamentally inclined to not just tolerate paternity leaves by colleagues but to respect the decision to take one. The most fundamental factor, however, appears to be a cultural one: says Simon, Quebecois culture makes for room for pleasure, and imposes less guilt for pursuing endeavours outside of the office grind, which, when coupled with a higher unionization rate and a somewhat more “socialist” approach to effecting work/life balance, results in a more robust participation rate.
 
Parental leave programs are an undisguised effort at using economic incentives to engineer social change and to entrench social behaviour that has economic benefits. Human Resources and Social Development Canada, in its 2005 study of parental leave programs, identifies the social objectives of such programs as promoting child development, balancing the demands of employment and childcare, and promoting gender equality. The same study describes the economic objectives of parental leave programs as promoting short-term investments that will result in long-term benefits, namely enabling businesses to retain valued employees.
 
To the extent that law firms are prepared to recognize the value of these various objectives, they should be prepared to encourage participation in parental leave programs by male lawyers. There appears to be a need, however, for law firms to overcome some entrenched misgivings. When Melinda Ligos wrote in The New York Times about paternity leave in 2000 with a focus on professional firms, she reported on a topic that prompted little but pejoratives: the story was entitled “The Fear of Taking Paternity Leave.” Suzanne Braun Levine, author of Father Courage: What Happens When Men Put Family First, opined that “men are terrified to take parental leave,” with their employers sending the unmistakable message that leave-takers are either “letting down the team” or “not very manly.”
 
Male lawyers outside of Quebec are subject to restraints imposed by two factors: cultural reticence and a lack of formal economic incentives. Whatever the cultural factors, perhaps the most important is an economic one: as noted, families take account of which partner has the higher salary — and the lower-earning partner is the one that takes the time off.

Effective Paternity Leave Policies

It seems unlikely that families outside Quebec will be eager to make significant changes in their behaviour in the absence of a change in government policy similar to that seen in Quebec. However, even before the recent Quebec modifications to paternity leave, Quebec fathers were partaking in parental leave benefits at a significantly higher rate than their cohorts in other provinces. Whether Quebec lawyers were as keen to take paternity leave is unknowable, but certainly all indications are that they suffered reservations similar to lawyers outside the province. What is needed is for law firms themselves to be proactive about paternity leave.
 
When asked what elements constitute an effective paternity leave policy for law firms, certain themes recur throughout the responses. Formal written policies are a necessary, but not sufficient, condition. According to Perreault, public acknowledgement and promotion of paternity leaves serves to make them more popular and accepted. To Pelletier, “besides what’s written or what’s official, more important is the culture of the work environment.” Simon M. recommends a policy of openness and exemplary conduct: ensure that it is common knowledge among colleagues when a male lawyer takes paternity leave, offering a clear signal to future fathers that the practice is accepted, even encouraged.
 
The “cultural” component of a successful policy cannot simply be a “grassroots” development, reliant on the slow process of changing demographics to build a critical mass of acceptance as today’s younger lawyers eventually comprise tomorrow’s firm leaders. Acceptance and encouragement needs to come, and be seen to come, from the top. Pelletier comments that “you could have the best written parental leave policy available on your website, [but] if the ‘talk of the town’ is about ‘this lazy guy who took two months to babysit and surely has no chance to become a partner,’ you just missed the target.”
 
Examples of model parental leave policies can be found at the following links:

CBA Advocacy: Parental Leave

The CBA’s Standing Committee on Equity has been working to bring maternity and parental leave benefits for the self-employed to the forefront of the government agenda. 

Most recently, it commissioned an economic report by Dr. Richard Shillington on the issue and presented it to Minister of Human Resources and Skills Development, the Honourable Diane Finley.  The report’s estimated total cost of providing such benefits to self-employed Canadians, either by adopting a Quebec-type program nationally or simply by extending Employment Insurance maternity and parental leave benefits, demonstrates that it is an affordable way to ensure that all working parents can spend time with their new child during critical stages of development. 

The letter to Minister Finley and the attached report are available at:
http://www.cba.org/CBA/submissions/pdf/08-66-eng.pdf  


Bob Tarantino is a freelance writer and entertainment lawyer in Toronto.  He is the author of Under Arrest – Canadian Laws You Won’t Believe (Dundurn 2007), and can be reached at bob_tarantino@hotmail.com.

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