Proposed lawsuit alleges Alberta government wrongfully kept money meant for kids in care

A group of current and former foster children is attempting to bring a class-action lawsuit that would force the Alberta government to repay benefit money they allege the province has been wrongfully pocketing for two decades.

The group is arguing it's entitled to money known as children's special allowances (CSA), which is meant to match the benefits afforded to kids whose parents receive the Canada Child Benefit, a tax-free monthly payment made to eligible families.

"The province of Alberta by its actions was essentially using children in care as a source of revenue, to offset its funding obligations of child welfare. And that is just wrong,"  Harold Cochrane, one of the lawyers representing the foster children, said at a news conference Monday.

According to federal legislation, CSA funding is meant to be used for care, education, training, and advancement of foster children. It is different than the maintenance funding that helps pay for foster children's basic needs. 

Indigenous foster children who live on reserve in Alberta have been receiving the CSA benefit, as the federal government distributes it to foster parents of child welfare organizations.

The care of Indigenous children in foster care who live off reserve and non-Indigenous foster children is managed by Alberta's Ministry of Children's Services.

A statement of claim filed in Edmonton's Court of King's Bench on Friday alleges that Alberta has been using CSA payments meant for the children in its care to offset the cost of maintenance payments since 1993, depositing the money into the province's general revenue fund.

The proposed lawsuit, which hasn't been certified, alleges what Alberta is doing is a misappropriation of funds, describing the practice as "reprehensible" and showing a "callous disregard" for the well-being of vulnerable children.

"The conduct of Alberta was deliberate, lasted for decades, and represents a marked departure from ordinary standards of reasonable and decent behaviour," the claim alleges.

The federal government is also named as a defendant in the case. The plaintiffs allege the federal government had a duty to prevent the provincial government from misappropriating the CSA payments.

None of the allegations have been proven in court. The federal government did not respond to a request for comment Monday, and a spokesperson for Alberta's Children Services minister declined to comment, saying the matter is before the courts. 

The statement of claim alleges that failure to get the funding to the foster kids amounts to discrimination because a disproportionate number of children in care in Alberta are Indigenous, and the government's actions are denying them the same benefits afforded to kids who aren't in care.

Several Treaty 8 chiefs attended and spoke at the news conference, including Grand Chief Arthur Noskey who said the situation is the result of Alberta Children's Services creating laws that continue to harm Indigenous children and families in the same way that residential schools once did.

"They talk about reconciliation or 'reconcili-action', but the court system or lawsuits has been the only way to bring the governments to the table," Noskey said, adding that the Treaty 8 chiefs are supporting the court action.   

'They need extra love and care'

Sierra Elise Clarke said the province's withholding of CSA payments meant that they missed out on the ability to participate in sports, travel to visit family members or take singing lessons when they were growing up in foster care.

Clarke, a Red Deer Polytechnic student from Tall Cree Nation, is one of three proposed representatives for the class-action lawsuit. The others are Octavian Laboucan who has also aged out of care, and an unnamed foster child, whose foster parent Kelly Gosal is acting as a litigation guardian. 

Gosal said she can't afford extracurricular activities for her foster kids, and that receiving the CSA would make a difference.

"These children go through so much trauma, they need extra love and care. The last thing they should worry about is finances," Gosal said.

The statement of claim says that while the precise amount of  CSA money taken by Alberta is unknown, Alberta Children's Services received over $33 million in federal transfer payments last fiscal year.

The group is seeking both compensation and punitive damages from the Alberta and federal governments.

In order to proceed, class-action lawsuits must be certified by a judge who agrees that it makes sense for the case to proceed as a group action.

Lawyers for the plaintiffs say they don't know how many people will qualify as class members should the lawsuit proceed, but that it would include both Indigenous and non-Indigenous foster children. 

Alberta is the latest Canadian jurisdiction to have a lawsuit filed over CSA  benefits. Foster children in Manitoba won a similar case there. A statement of claim by Saskatchewan foster children has also been filed, and lawyer Kris Saxberg who has worked on all of the different claims said they also expect to file a claim in British Columbia.