Judge sides with Indigenous CFS agencies, rules Manitoba government misused benefits meant for kids in care

A judge has found that the Manitoba government misappropriated federal benefits meant for children in care. 

The years-long case relates to the federal government’s Children’s Special Allowance, which is meant to ensure children in care get the same federal funding that other children get through the Canada Child Benefit and Child Disability Benefit.

From 2006 to 2019, the Manitoba government required Child and Family Services agencies to give the money from the benefit to the government, arguing that it belonged to the government since it was paying the cost of looking after the children. 

A group of Indigenous Child and Family Services agencies and authorities took the province to court over the practice in 2018.

Another constitutional legal challenge was later filed by 19 Indigenous CFS agencies and authorities and the Southern Chiefs’ Organization against legislation meant to make Manitoba immune from legal action over the clawback.

Earlier this week, Court of Queen’s Bench Judge James Edmond ruled those actions were unconstitutional because they undermined federal law. 

He also agreed with the plaintiffs that these policies discriminated against Indigenous children in Manitoba, given that close to 90 per cent of children in care are Indigenous.

“We’re very happy that someone who has the power, a judge, said this is theft and it’s going to stop,” said Shawn Scarcello, one of the plaintiffs’ lawyers. 

Class-action lawsuit

Lawyers representing the plaintiffs in the case estimate the province has, to date, illegally taken over $334 million — including $251 million from Indigenous Child and Family Services agencies — meant for children in care.

The next step will be pushing a related class-action lawsuit forward to ensure those who should have received the benefit are compensated, the plaintiffs’ lawyers say. 

Indigenous agencies and leaders said Thursday that they hope the Manitoba government won’t appeal the decision. 

“Stop wounding our children by perpetuating historical disadvantages on the backs of our children,” said Trudy Lavallee, executive director of Animikii Ozoson Child and Family Services, an agency that serves families living in Winnipeg who have ties to Ontario First Nations.

“Pay the children the benefits that you stole from them.”