Child Welfare (1-5): Current Problems

Court Challenges


March 17, 2022


BC, MB

Class Action Lawsuit for government use of Birth Alerts to apprehend Indigenous babies

Assembly of Manitoba Chiefs – Earlier this week, a class-action lawsuit was filed in Winnipeg against the province of Manitoba regarding the controversial and discriminatory practice of Birth Alerts. The basis for the claim is that Birth Alerts are unconstitutional and are a Human Rights violation.

“The Assembly of Manitoba Chiefs (AMC) has been a strong advocate in taking countless actions to end the practice of Birth Alerts and Newborn Apprehensions.” stated Grand Chief Arlen Dumas. This includes:

  • The Executive Council of Chiefs passing a resolution in 2016 calling for the end of the apprehension of First Nation babies.
  • The Chiefs also expanded the mandate of the Women’s Council to include Child and Family Matters, advocating for the inclusion of child welfare in the National Inquiry into Missing and Murdered Indigenous Women and Girls (the Inquiry).
  • As well, the First Nations Family Advocate participated in the Inquiry as an expert witness calling for governments to examine the legality of Birth Alerts and to end the practice of Birth Alerts,”

Chief Betsy Kennedy, Chairperson of the Women’s Council stated “The Women’s Council lends a strong voice for the issues that impact First Nations women. Since the inception of the First Nations Family Advocate Office, we have witnessed the injustice and inhumane actions of the provincial government and the rooted impacts on First Nations families involved with the Child Welfare system, particularly on First Nations expectant mothers. For too long, we have had the provincial government telling us what is in the best interest of our children and families. This has led to the destruction of our families and Nations. This is evident as seen through the suffering of mental health, addictions, homelessness, and poverty.”

In 2021, a class-action lawsuit was brought against British Columbia seeking justice for the practice of Birth Alerts that have separated hundreds of parents and newborn infants, with First Nations families disproportionately affected.

“Despite the apparent end of Birth Alerts in July 2020 that the Manitoba government announced, our office still receives calls from mothers experiencing a Birth Alert and/or Newborn Apprehension. Newborn Apprehensions and the removal of children is an extremely traumatic practice that has long-lasting physical, mental and emotional effects for First Nations families. Today, the lawsuit is a step in the right direction to help address this discriminatory practice and ensure families receive justice,” stated Cora Morgan, First Nations Family Advocate.

Previously, section 9(4) of the Manitoba Child and Family Services Act identified two types of birth alerts: one issued for women over the age of 18; and one for unmarried minors (mandatory in Manitoba), particularly if they are deemed to be high risk. In both instances, the Agency that issued the Birth Alert had the legal right to apprehend the newborn infant under the premise of acting in “the best interests of the child.”


May 19, 2022


MB

Court rules that Manitoba Government discriminates against First Nations children in the Child Welfare System

NationTalk: The Manitoba Court of Queen’s Bench ruled that the government of the province of Manitoba discriminates against First Nations children in the provincial Child and Family Services (CFS) system, and that its attempt to absolve itself of liability for holding back the federal Children Special Allowance (CSA) of over $334 million from children and youth in care was unlawful and constitutionally invalid.

Chief Cornell McLean, the Assembly of Manitoba Chiefs (AMC) Acting Grand Chief, said, “This is a critically important victory for the most vulnerable people in society: our First Nation children. The participation of the AMC, in this case, is directly reflective of the leadership and commitment of the Chiefs in Manitoba to continue to advocate strongly for our children. Yesterday’s ruling sends a strong message that Manitoba can no longer treat First Nations children as commodities. Over the years, there has been a consistent increase in the number of children apprehended and placed into CFS care, and the more children in care, the more Manitoba was able to capture their CSA. The result was the provision of less than adequate supports for First Nations children that would ensure an equitable life.”

The AMC’s position was supported by a number of supporting affidavits from leaders, and Elders and knowledge keepers, including from AMC Grand Chief Arlen Dumas, Pimicikamak Cree Nation Chief David Monias, and Black River First Nation Chief Sheldon Kent. Consistent with the submissions of the AMC, the Court found the CSA clawback had a very overwhelmingly disproportionate and discriminatory “adverse impact” on First Nation children in care. It expressly relied on the evidence of the First Nation Family Advocate Office of AMC that First Nation children in care are more likely to live in poverty, suffer poor educational outcomes and be overrepresented in the criminal justice system.

“I am very pleased that the Court found the CSA policy implemented by Manitoba infringes section 15 of the Charter. Going forward from this ruling, I want to see equitable funding provided for our children and youth in care so that they get the resources needed to assist them in life moving forward. First Nations children deserve a fair chance as other youth,” stated Chief Sheldon Kent.

“This ruling has been a long time coming. It is one step toward holding Manitoba accountable for its actions that specifically target First Nations children. Our children are sacred, and we will continue to advocate and continue challenging these systems that have failed our families and children,” stated Chief David Monias, Pimicikamak Cree Nation.

As part of the conclusion of the decision, the Court stated that “it [was] a violation of s. 15(1) [of the Charter] by Manitoba to preclude children in care from receiving the CSA Benefits and then enacting s. 231 of BITSA to make the CSA Policy law in Manitoba.”

Acting Grand Chief McLean concluded, “It is clear that the provincial system does not serve the best interest of our children, and as a result, our families and Nations. The AMC has been consistent and clear since its inception and the Aboriginal Justice Inquiry – Child Welfare Initiative: the provincial system must go and be replaced by one under First Nations’ jurisdiction. It is clear that both the former NDP government that instituted the CSA policy and the current Conservative government that tried to legislate it and prevent any recourse were acting contrary to the Charter. The government and its policies have manipulated the approach and intent of devolution of the provincial CFS system. I urge the current Conservative government to honour the decision and immediately settle the outstanding remedies, and not appeal the decision. We also call on all provincial parties to declare they will work with the AMC and First Nations in Manitoba to finally complete devolution in order to create a system under First Nations jurisdiction and laws.”


October 6, 2019


MB

Federal Government asks for Judicial Review of CHRT decision

The federal government has asked for a judicial review of the Canadian Human Rights Tribunal (CHRT) decision to award $2B in damages to approximately 53,000 Indigenous children and youth wrongly removed or denied essential services. The CHRT panel found that the government racially discriminated against First Nations children in care in a willful and reckless manner. As a result, the CHRT ordered Canada to pay the maximum amount allowable under the Canadian Human Rights Act.

The government could have addressed the broken system and the funding inequalities before, but they didn’t. To appeal this CHRT ruling, which was meant to provide a measure of justice for First Nations children in care, is hurtful and unjust.” AFN National Chief Perry Bellegarde.

The CHRT has issued eight compliance orders against Canada since its original ruling in January 2016. The CHRT has extended the date for the parties to determine how to deliver payments to Feb. 21, 2020.


September 6, 2019


MB

Federal Government asks for Judicial Review of CHRT decision

Canadian Human Rights Tribunal Citation: 2019 CHRT39, File No.: T1340/7008 

We believe that the Creator has entrusted us with the sacred responsibility to raise our families…for we realize healthy families are the foundation of strong and healthy communities. The future of our communities lies with our children, who need to be nurtured within their families and communities. (see 1996 report of the Royal Commission on Aboriginal Peoples (RCAP), Gathering strength, vol. 3, p. 10 part of the Tribunal’s evidence record). Children hold a special place in Aboriginal cultures (…) They must be protected from harm (…). They bring a purity of vision to the world that can teach their elders. They carry within them the gifts that manifest themselves as they become teachers, mothers, hunters, councillors, artisans and visionaries. They renew the strength of the family, clan and village and make the elders young again with their joyful presence. 

Failure to care for these gifts bestowed on the family, and to protect children from the betrayal of others, is perhaps the greatest shame that can befall an Aboriginal family. It is a shame that countless Aboriginal families have experienced, some of them repeatedly over generations. (see RCAP, Gathering strength vol. 3. p. 21)


February 22, 2019


MB

First Meeting with Indigenous Leadership Council in two years

The government of Manitoba met with the Indigenous Leadership Council (Manitoba Metis Federation, Southern Chiefs’ Organization and Manitoba Keewatinowi Okimakanak) for first time in over two years despite a previous commitment to meet every quarter. The heads of the Indigenous Leadership Council met again with Minister of Families Heather Stefanson on Apr. 3, 2019 over concerns with the province’s block funding for child welfare that is still based on the old funding formula that rewards removing children from homes. There is no room in this block funding for prevention, no support to keep our families together. Right now, the proposed changes amount to $41.66 a month or a $1.39 per day for each child. Manitoba Metis Federation President David Chartrand

By relying on the federal Children’s Special Allowance (CSA) program to offset maintenance costs, the province is forcing our children to pay for their own care.” Under the federal government, the Children’s Special Allowance program is administered on a per-child basis and is equivalent to the combined maximum of the Canada Child Benefit (CBA) and Child Disability Benefit (CDB). These payments are meant for children in care. However, Manitoba is reducing child maintenance against the CSA funding. The Indigenous Leadership Council stands united in the fight for our children and families.”


December 15, 2020


MB

First Nations challenge “Bill 2”

They filed a constitutional legal challenge against Manitoba’s “Bill 2″. “Bill 2” is Manitoba’s attempt to legalize the theft of CSA money from Indigenous children, the most vulnerable group in Manitoba. It is also Manitoba’s attempt to escape legal accountability for the theft. This is wrong,” said Harold Cochrane, legal counsel, Cochrane Saxberg LLP.


November 9, 2020


MB

First Nations challenge “Bill 2”

The Southern Chiefs Organization and the Manitoba Métis Federation along with a group of 19 Indigenous child and family Agencies and Authorities announced their intent to file a challenge to BIll 2 “the Budget Implementation and Tax Statutes Amendment Act” that was passed on November 6, 2020.


April 14, 2020


MB

First Nations challenge “Bill 2”

Assembly of Manitoba Chiefs – are seriously concerned about Manitoba fast tracking Bill 2, The Budget Implementation and Tax Statutes Amendment Act. If passed, the Bill will have serious implications on First Nations children in care. On March 19, 2020 the Manitoba government introduced Bill 2. The Bill is currently seeking to legalize Manitoba’s actions of recovering the Child Special Allowance since January 1, 2005, when they started taking the child tax credit away. In 2018, a class action lawsuit was filed on behalf of the off -reserve children who had their CSA’s clawed back. A trial date is set for this September. But if Bill 2 passes by September the Manitoba government would not be held responsible for their actions and the lawsuit would be invalid.

“From 2005 to 2019, approximately $338 million dollars of the Child Special Allowance (CSA) funds meant for First Nations children in care were stolen by the provincial government. This is an illegal action. We have a government trying to justify their actions, wiping their hands clean from the claw backs of the CSA by protecting themselves from any legal recourse through Bill 34,” stated Chief Karen Batson of Pine Creek First Nation. ”This is a human rights violation and is another example of how the provincial government has neglected children in care in the past, present, and now future,” concluded Chief Batson.

Manitoba Keewatinowi Okimakanak Inc. (MKO), the Manitoba Metis Federation (MMF) and the Southern Chiefs’ Organization (SCO) are particularly concerned by section 8, “which sets out to legally end the ability of current and former children in care to sue the Manitoba government for clawing back their monthly Children’s Special Allowance (CSA).


October 7, 2022


MB

First Nations Challenge Bill 2

Oct. 7, 2020 – The Assembly of Manitoba Chiefs, the Official Opposition Manitoba NDP and the Manitoba Liberal Party, denounce and reject Bill 2 and stand in opposition against the Provincial government’s approach to denying First Nations families and children access to justice. Section 84 of the Budget Implementation and Tax Statutes Amendment Act will retroactively legalize Manitoba’s actions since January 1, 2005, as well as take away the right to any reparations for the children and families affected by the practice of clawing back the Children’s Special Allowance.

A class action lawsuit in the amount of $338 million dollars was filed against the Provincial government on behalf of First Nation children in care who are victims of the government’s actions of capturing the Children’s Special Allowance. If Bill 2 passes, the class action lawsuit will be void and First Nation families and children will not receive compensation for the injustice they went through.


September 8, 2021


MB

First Nations Challenge Bill 2

The Assembly of Manitoba Chiefs filed its written submissions in its challenge of the provincial Budget Implementation and Tax Statutes Amendment Act. The submissions of the AMC argue that through the BITSA, Manitoba:

  • infringes the core jurisdiction of the superior courts and breaches section 96 of the Constitution Act, 1867 by having the province of Manitoba absolving itself from any liability and denying First Nations children in care the right to access the courts;
  • denies First Nations children substantive equality and equal benefit of the law on the grounds of age, race, aboriginality-residence and family status, in which the BITSA is contrary to section 15 of the Canadian Charter of Rights and Freedoms;
  • denies First Nations the rights, benefits and opportunities promised to First Nations children in care by Canada pursuant to s. 91(24) of the Constitution Act, 1867 and is therefore beyond the province’s constitutional authority; and
  • violates the honour of the Crown and breaches its fiduciary duty owed to First Nations children in care

November 6, 2020


MB

First Nations Challenge Bill 2

Bill 2, the “Budget Implementation and Tax Statutes Amendment Act“, is passed.


June 21, 2022


Fed. Govt.

Off-reserve Indigenous children’s class-action approved

Toronto Star: The Federal Court of Canada has certified a class-action lawsuit against the federal government on behalf of off-reserve Indigenous children who were taken from their families and placed in non-Indigenous care.

In a decision released online Monday, Federal Court Judge Michael Phelan ruled the class period will cover from Jan. 1, 1992 to Dec. 31, 2019, a time frame referred to in court arguments as the “Millennium Scoop.”

The decision says those affected include status and non-status Indians, Inuit and Métis youngsters and their families who were not living on reserves. The class seeks various damages, restitution and recovery of specific costs on behalf of the affected children and families.

Phelan’s decision says granting certification for a single class-action would avoid the prospect of 13 provincial and territorial separate actions “being pursued by one of Canada’s most disadvantaged groups.” “The Court is not convinced that the issues are only theoretically common. Individual provincial/ territorial welfare practices would need to be considered, whether the claim is in this court or in several courts,” the decision says.

The federal government argued in court that the provinces and territories should be involved in the legal process, but the judge says the Crown didn’t address how it could be done for a national class-action lawsuit. Phelan says for “judicial economy,” a single national proceeding is more efficient.

The plaintiff’s lawyers allege the federal government’s actions breached the Charter of Rights and Freedoms.