'This is direct discrimination': Lawsuit between Manitoba and Indigenous CFS agencies continues
Lawyers representing more than a dozen CFS agencies are accusing the province of discrimination, saying Indigenous children paid the price when the province clawed back hundreds of millions of dollars meant for children in care.
A four-day civil trial continued in Manitoba's Court of Queen's Bench on Wednesday. Justice James Edmond heard submissions from multiple Indigenous CFS agencies regarding the Children's Special Allowance (CSA)—a monthly federal benefit meant for children in care.
"It was supposed to help lift children in care up," said Byron Williams, the lawyer representing Assembly of Manitoba Chiefs (AMC) in the challenge.
Court heard during a 13-year period between 2006 and 2019, the province took back more than $335 million of the benefits through what lawyers called forced remittance and claw backs.
The court heard not all children in care were impacted.
Shawn Scarcello, a lawyer representing the CFS agencies, said in Manitoba, Indigenous children in care fall under two groups—federally and provincially funded.
He said children with a parent living on reserve at the time of apprehension are federally funded and received the CSA benefit. Children whose parents lived off reserve at the time of apprehension are funded by the province, and from 2006 to 2019, didn't get the benefit.
"This is direct discrimination," Scarcello said. "Obviously, this is absurd and this just goes to show the arbitrariness of Manitoba's CSA policy."
The practice was ended in 2019, but lawyers argued the province then used Section 231 of the Budget Implementation and Tax Statutes Amendment Act (BITSA) to retroactively legalize the claw back, and block any legal challenges.
"What BITSA is achieving is to take away any claims that Indigenous agencies or Indigenous children may make on this CSA benefit and ask for the return of those benefits," Jeremy McKay, a lawyer representing Elsie Flette, a plaintiff in the case.
"This is an attempt to keep money that they were never entitled to in the first place," said William Klym, who is also representing Flette. "The truth is they want to keep the money and they want to prevent the children and the agencies from accessing it."
Byron Williams said Indigenous children—in particular First Nations children—are grossly overrepresented in the child welfare system and are at a higher risk of unemployment, homelessness and incarceration.
He said the claw backs took a vital resource away from them, and called the court to strike down the legislation.
"AMC argues that BITSA at its core is discrimination enshrined in law," he said.
"Manitoba is not above the law and it can and should be held accountable for taking hundreds of millions of CSA dollars from First Nation children in care."
The province is set to make its submissions on Thursday.