Alberta sued for discriminating against children in care by taking their child allowance benefits

Treaty 8 chiefs and representative plaintiffs are leading the charge for Indigenous children living off-reserve and in care of the province who were denied their Children’s Special Allowance (CSA) benefit.

A statement of claim was filed against Alberta and Canada Nov. 24 in Court of King’s Bench in Edmonton alleging Alberta withheld hundreds of millions of dollars from foster children since about 1993 and the federal government did nothing about it.

“Today is a day of accountability for the government,” said Chief Albert Thunder of Whitefish First Lake Nation 459 at a news conference Nov. 27. He was joined by Treaty 8 Grand Chief Arthur Noskey, chiefs Ivan Sawan (Loon River) and Andy Alook (Bigstone Cree), as well as the representative plaintiffs and legal counsel.

“This class action is about thousands of children that will benefit as a result of our Treaty 8 youth… having the courage, with our support as chiefs, to take the challenge on,” said Thunder.

Two of the three representative plaintiffs are from Whitefish Lake First Nation: Kelly Gosal, as litigation guardian to the minor identified by the initials A.G-L, and Octavian Elias Papa Laboucan. Sierra Elisa Clarke, the third representative plaintiff, is from Tall Cree Nation, also a Treaty 8 Nation. Both Laboucan and Clarke are former off-reserve children in care of the province.

The 35-page statement of claim alleges that Alberta “improperly and unlawfully misappropriated” funding dollars from Canada that were meant for specific children in care. It states further that the federal government “had a duty to prevent provincial governments…from misappropriating the CSA benefits…but…failed” to do so.

The legal action is being led by the Winnipeg firm of Cochrane Saxberg, which was successful in a similar action against Manitoba.

In May 2022, the Manitoba court ruled that the province had discriminated against off-reserve children in care by clawing back over $334 million in CSA benefit. Manitoba did not appeal the decision.

In 2019, a year-and-a-half after numerous Indigenous child and family services agencies and the Assembly of Manitoba Chiefs began litigation, Manitoba changed its policy so the CSA benefit went directly to children in care as it was intended.

Negotiations are underway with Manitoba now regarding the back monies owing and the amount of interest to be applied, Kris Saxberg of Cochrane Saxberg, told Windspeaker.com.

Saxberg is hopeful that no further litigation will be required, noting that when Wab Kinew’s NDP were in opposition they were “on side with our lawsuit when we filed” and he expects that position to continue with Kinew now as the new premier.

The principle of disgorgement will be used, says Saxberg, which means analysis will focus on how Manitoba profited over the decades by making use of the CSA benefit instead of looking at each wronged child’s circumstances separately.

“Plus there's also the time value of money. Three hundred and forty-four million dollars in 2005 is worth one thing. Three hundred and forty-four million dollars in 2024 is worth something different, something more than just inflation,” said Saxberg.

The bottom line, he adds, is that “all of the money has been returned to the class and the province hasn't benefited one cent by virtue of its wrongful actions.”

Saxberg expects a formula will be determined based on the number of months a child was in care. In Manitoba that maximum number is 164 months. Anything less than that will be pro-rated.

Some children could receive up to $50,000, a lump sum that could be a concern, says Saxberg, considering many of these young adults could be in vulnerable positions and taken advantage of.

Another issue to be determined is whether other government benefits will be denied because of the CSA award.

“There's a lot of different approaches and different ideas and conflicting interests and, ultimately, I think (the award) will all have to go into a trust. It should be building interest while the administrative details are being worked out,” said Saxberg.

Considering the parties want to settle, Saxberg says he’s hopeful children will start receiving compensation in 2024. However, he is quick to point out that no settlement would have been possible if court action hadn’t been initiated.

Saxberg expects what has happened in Manitoba will influence what happens in Alberta and Saskatchewan. This past June, Cochrane Saxberg began a class action lawsuit in Saskatchewan. Something similar is on the horizon in British Columbia.

Saxberg says they will be looking at the situations in the other provinces and territories. He adds that the information they have received about Ontario indicates that Ontario has been following the federal CSA Act.

“I personally just don't understand how you could have this result in Manitoba with the same act, all the same facts, everything, and have a different treatment in the other provinces. I think it's just a matter of everybody catching up to what's happened,” said Saxberg.

The Alberta government was served earlier this week.

The class action does not have to be certified before negotiations can begin between the plaintiffs and the province, says Saxberg, who adds that negotiating is always preferable to litigating.

Alberta does not contribute financially to First Nations children in care who live on reserve. The province only provides financial contributions to agencies for Indigenous children who come into the care of the Ministry of Children and Family Services and who are not eligible for federal funding.

The exact dollar figure owing to those children will depend on if every child and family services agencies remitted all of their CSA dollars to the province in accordance with Alberta’s CSA policy.

According to figures presented for the fiscal year ending March 31, 2023, Alberta received $33 million in CSA benefits. The money has been used to offset child welfare funding. Under the CSA Act, the benefit is provided to a specific child to be used for that child.

The current monthly amount for a child in care under the age of six is about $620 per month and for a child between six and 17 years of age is about $520 month.

Saxberg says that Canada has made no move to rectify how some provinces use the CSA benefit despite being aware of the decision in Manitoba and calling the provincial action discrimination against Indigenous children in care.

The legal action in Alberta also includes non-Indigenous children in care. However, according to 2014 figures, nine per cent of the child population in Alberta identifies as Indigenous, but accounts for 69 per cent of the children in care.

“Alberta Children Services legislation has the same effects as the residential schools. Our children and families are broken. We, as First Nations, need to develop our child well-being laws and bring our children home so that this doesn't continue to happen,” said Noskey.

He urged other chiefs in Alberta to stand with Treaty 8 chiefs in supporting the representative plaintiffs.

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