Legislation buried in Manitoba’s budget bill aims to cut the legs out from under lawsuits over its collection of “baby bonus” cash for kids in care, and is “positively Orwellian” says a lawyer who specializes in Indigenous rights law.
Corey Shefman, who practices in Manitoba and Ontario, said legislation in the budget tabled Mar. 19, that retroactively changes the law is a slippery slope and offers this analogy.
“Say you’re driving were driving down a street doing 40 kilometres an hour and two weeks later the government changes the speed limit on that street to 20 kilometers and hour, then sends you a ticket for doing 40. That’s what this (bill) is,” Shefman said.
“In 2020 they’re retroactively trying to change the reality of something that started in 2010.”
In 2010 the then-NDP government in Manitoba forced all child and family services (CFS) agencies to give them a 20 per cent cut of the monthly child benefit money they receive from the federal government as the guardians of children who are in care.
At the time, the Progressive Conservatives, who were the official opposition, accused the NDP of stealing from foster kids.
Yet when elected to power in 2016, the Conservatives continued the claw-back.
It amounts to about $40-million a year in baby bonus the province takes, while it spends $400 million a year on the CFS system.
In 2018, eight child welfare agencies sued the Manitoba government saying the $266 million the province took in child benefit cash should be returned to the agencies and spent on kids in care .
Those lawsuits remain before the courts but the proposed legislation wrapped up in the budget would essentially nullify them.
Last week, the Manitoba Metis Federation (MMF), Southern Chiefs Organization (SCO), and Manitoba Keewatinowi Okimakanak (MKO), which represents northern Manitoba communities, called it “shameful” that the government would try to sneak this into budget legislation.
“This removes the right to sue Manitoba over their illegal claw-back of $250 million from Indigenous children and removes accountability of Manitoba’s illegal actions including the removal of judicial oversight and judgement,” said a joint statement from the organizations.
There are 10,000 to 11,000 children in care in Manitoba each year and 90 per cent are Indigenous.
A section of Bill 34, Manitoba’s budget bill, changes how it hands out money for the province’s child and family services agencies. Clauses within Division 8 outline the legal limitations of anyone looking to sue the government.
“No costs, compensation or damages are owing or payable to any person and no remedy, including but not limited to a remedy in contract, restitution, tort, misfeasance, bad faith or trust or for a breach of fiduciary duty, is available to any person in connection with the application of this section,” the clause said.
The province says the lawsuits are moot because as of April 2019, they stopped the claw-back and agencies now keep all the baby bonus for children in their care.
The change was made as part of an overhaul of how CFS agencies are funded.
“Agencies and authorities are keeping the Children’s Special Allowance (baby bonus) for themselves and getting a single envelope of funding from the province. Single envelope funding will provide over $400 million to the authorities and their agencies in 2020/21– that is a $15 million increase compared to what they received before single envelope funding was introduced,” said Manitoba Families Minister Heather Stefanson.
The old funding model gave agencies money based on how many children were in care and the move to single envelope funding, or block funding was meant to de-incentivize apprehensions. Critics have long argued that the system was taking in children to generate money from the province and create jobs.
The funding change was met with harsh criticism from agencies and Indigenous organizations who say the government is now short-changing the system. Stefanson shrugs off the criticism and says what matters is 18 per cent fewer kids are being taken into care now..
MMF, SCO and MKO say while the claw-back of baby bonus cash may have stopped a year ago, the money taken over the nine years previously, is owed and the lawsuits should continue.
Budget legislation, including Bill 34 that would kill those lawsuits, is currently stalled because of the COVID-19 pandemic.