A Seismic Legal Decision – Court of Queen’s Bench Judge finds that Manitoba’s actions and law prohibiting children in care from reclaiming $335 million of misappropriated benefits was unconstitutional and discriminated against Indigenous foster children in breach of their Charter rights as Canadian Citizens

The Cochrane Saxberg legal team is pleased to announce that we have won a landmark case against the Province of Manitoba for their illegal taking of money from Indigenous children in care. “This is a historic win for Indigenous children and the victory clears the path for the return of $250 million to Indigenous children ($335 million to all foster children),” says Shawn Scarcello, one of the lead lawyers.

From 2006 to 2019, the Manitoba government illegally confiscated Federal Children’s Special Allowance (CSA) payments earmarked for off-reserve First Nation and Metis children in care. Manitoba used the CSA money to reduce its child welfare funding obligations. The monthly CSA payments equal the maximum Canada Child Benefit payment plus the Child Disability Benefit. The point of the CSA is to provide children who have been removed from their parents and placed in care with the same benefit that all other children (not in the child welfare system) get through the Canada Child Benefit and the Child Disability Benefit.

Indigenous Child and Family Service agencies apply to the federal government for these funds on behalf of children in their care, consistent with the federal Children’s Special Allowance Act which states that the funds are to be used exclusively for the care, maintenance, education, training or advancement of the child in care.

To date, Manitoba has illegally taken over $334 million dollars ($251 million from Indigenous CFS Agencies) intended for the most vulnerable people in the province, children in foster care, 88% of whom are First Nation and Metis children. ”Many children age out of the system without any resources set aside to help set them up for success in the future” says Greg Besant, Executive Director of the Metis Child, Family and Community Services Agency. “The effect of Manitoba’s actions was that children in care funded by Manitoba (provincial children in care) received less support and opportunities while in care than children in care funded by the government of Canada (federal children in care)” (Besant).

The two court actions were in progress to force Manitoba to stop taking the CSA benefits and to hold Manitoba accountable for its illegal actions when, in 2020, Manitoba passed section 231 of the Budget Implementation and Tax Statutes Amendment Act (BITSA) which deemed both legal actions to be dismissed. Section 231 of BITSA was Manitoba’s attempt to defeat the lawsuits and deny Indigenous children in care their right to enforce their legal right to receive the CSA benefit.

Subsequently, a group of 19 Indigenous CFS Agencies and Authorities and the Southern Chiefs Organization filed a constitutional legal challenge against Manitoba, alleging that section 231 of BITSA and Manitoba’s actions between 2006 and 2019 were unconstitutional and discriminatory in breach of the children’s Charter rights.

The Honourable Justice Edmond of the Court of Queen’s Bench heard the case from October 25 to October 29, 2021.

On May 18 , 2022 he issued his decision, finding that Manitoba’s actions and section 231 of BITSA were unconstitutional and that they discriminated against foster children in Manitoba, 88% of whom are First Nation and Metis children, all of whom Justice Edmond declared were among the most vulnerable members of our society. Section 231 of BITSA was declared invalid. This means that the lawsuits can now move forward and determine the financial liability of Manitoba. The Indigenous CFS Agencies, Authorities, SCO and MMF expect that, as a result of the decision, children in care and former children in care will be paid all the CSA money they should have received between 2006-2019.

“This is a huge victory for First Nation and Metis children in care in Manitoba” says Stella Bone, Executive Director of West Region Child and Family Services. “These most vulnerable members of our society had 19 Indigenous child and family services agencies and Authorities and the Southern Chief’s Organization stand up to Manitoba on their behalf. And we won” (Bone).

“I am thankful that the voices of our most vulnerable children have been heard” states Trudy Lavallee, Executive Director of Animikii Ozoson Child and Family Services.

“Manitoba should be ashamed”. It is time for our governments to stop litigating against Indigenous children. Reconciliation requires more. Much more” (Lavallee).

NT5