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Court Rules Manitoba’s Move on Federal Child Welfare Allowance Violated Charter

May 19, 2022 10:18 AM | The Canadian Press

By Steve Lambert, The Canadian Press

Manitoba Law Courts

Manitoba Law Court building in downtown Winnipeg, Monday, August 18, 2014. (THE CANADIAN PRESS/John Woods)

WINNIPEG — The Manitoba government violated the rights of Indigenous children in care by clawing back hundreds of millions of dollars in federal payments, a judge has ruled.

The decision was heralded by Indigenous organizations, which said the province should never have collected more than $250 million over a 13-year period.

“I urge the current (Progressive) Conservative government to honour the decision and immediately settle the outstanding remedies, and not appeal the decision,” Cornell McLean, acting grand chief of the Assembly of Manitoba Chiefs, said in a statement Thursday.

The former NDP government started the clawback of a federal benefit called the Children’s Special Allowance in 2006. The money goes to agencies that care for children and mirrors the Canada Child Benefit given to parents who are raising their kids.

The province had argued it was right to claw back the money since it was paying for children in care. The Progressive Conservative government ended the practice in 2019 but also passed a law to retroactively formalize it and prevent any legal action.

Court of Queen’s Bench Justice James Edmond ruled the government’s actions violated equality rights under the Charter of Rights and Freedoms because Indigenous children make up almost 90 per cent of kids in care. Disabled children were also affected, he said, because a disability benefit is also included in the federal allowance.

“The evidence establishes a disadvantage resulting from the … policy denying a benefit to the claimant group that is not denied to others,” Edmond wrote.

The judge also said there was insufficient evidence that Manitoba replaced the federal money it clawed back with its own funding.

“In fact, there is evidence to the contrary,” he wrote.

While the federal government increased its allowance payments every year, the province froze funding rates for many child welfare services between 2012 and 2019, Edmond said.

Edmond also struck down the section of the provincial law that formalized the clawback and bans legal action. The ruling paves the way for a potential lawsuit to recoup the money.

The Opposition New Democrats called on the government to not appeal the ruling.

“The premier can end this issue today by committing to not fighting Indigenous children in court,” NDP Indigenous affairs critic Ian Bushie said in question period. “This would be a step forward in reconciliation.”

Families Minister Rochelle Squires did not directly answer.

“I would like to thank Justice Edmond for his ruling and this ruling will undoubtedly be a component in the sweeping transformation of child welfare and reconciliation in this country and in this province,” Squires said.

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