Proposed class-action lawsuit targets province over federal benefit payments clawback

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This article was published 05/06/2023 (867 days ago), so information in it may no longer be current.

The director of a child-welfare agency and a man who grew up in foster care are suing the provincial government in a proposed class action over Manitoba’s former policy to claw back federal benefit payments to kids in care.

The lawsuit, filed by Winnipeg law firms Cochrane Saxberg LLP and DD West LLP on May 30 in the Manitoba Court of King’s Bench, is focused on non-Indigenous kids who had the federal Children’s Special Allowance withheld by the province under a policy enacted by the NDP government in 2005 and continued by the Tory government until 2019.

The new lawsuit comes more than a year after a King’s Bench justice ruled the clawback as it related to Indigenous children in care was wrong.

The province had argued it had the right to keep the federal money since it paid for kids in care.

The federal benefit goes to agencies that care for kids in an amount consistent with the federal Canada Child Benefit given to parents. The cash is meant to pay for cultural and recreational opportunities such as music lessons and organized sports.

The executive director of Animikii Ozoson Child and Family Services Agency, Trudy Lavallee, and a 27-year-old Richer man, who was in care as a child and young adult, are proposed as representative plaintiffs on behalf of all non-Indigenous kids who are or were wards of provincially funded child and family services agencies whose benefits were clawed back by the government and put into a revenue fund.

The man, who was born in Winnipeg, was put in care in at the age of eight along with his two younger sisters in 2005 after their parents died. He remained in extended care until 2017 and was denied his federal benefit the entire time.

Lavallee is also applying to serve as litigation guardian on behalf of a non-Indigenous 12-year-old child whose benefits were clawed back.

The statement of claim seeks an order certifying the lawsuit as a class action, a declaration that the policy was unconstitutional and unlawful, that the province breached its duties and the kids’ charter rights, damages and restitution of all benefits denied to kids in care, among other legal claims and requests of the court.

The court papers say the province’s policy on the benefit was discriminatory toward vulnerable Manitoba children in care.

“The effect of Manitoba’s CSA policy is to perpetuate hardships suffered by a vulnerable, poor and disadvantaged group resulting in a breach of… the (charter),” the lawsuit reads.

The court papers say the province’s denial of the benefits was deliberate and callous, while the opportunities the kids in care lost as a result can never be replaced.

The Progressive Conservative government ended the practice in 2019, but also passed a law to retroactively formalize it and try to prevent any legal action, the Canadian Press reported last year.

The Court of King’s Bench also struck down that law when ruling the province’s clawback undermined federal law and violated the rights of Indigenous kids under the Charter of Rights and Freedoms.

Approximately 90 per cent of Manitoba kids in care are Indigenous.

The new legal filing does not refer to a dollar figure. Indigenous leaders have past said the benefits meant for Indigenous children totalled more than $300 million.

A provincial spokesperson declined comment because the matter is before the court. The government has not yet filed a statement of defence.

erik.pindera@winnipegfreepress.com

Twitter: @erik_pindera