File mama THE BENCH Winnipeg Centre BETWEEN: PEGUIS CHILD AND FAMILY SERVICES, ANIMIKII OZOSON CHILD AND FAMILY SERVICES, SOUTHEAST CHILD AND FAMILY SERVICES, SANDY BAY CHILD AND FAMILY SERVICES, MICHIF CHILD AND FAMILY SERVICES and METIS CHILD, FAMILY AND COMMUNITY SERVICES Applicants, -and? THE GOVERNMENT OF MANITOBA Respondent. NOTICE OF APPLICATION UNCONTESTED CIVIL MOTIONS LIST HEARING DATE: Tuesday, the 15th day of May, 2018, at 10:00 a.m. COCHRANE SAXBERG Barristers and Solicitors .- 2200 One Lombard Place APR 2 6 Winnipeg, Manitoba R33 0X7 HAROLD C. SCARCELLO Telephone: 204-594-6688 Facsimile: 204-808-0987 File NGH5 THE BENCH Winnigeg Centre BETWEEN: PEGUIS CHILD AND FAMILY SERVICES, ANIMIKII OZOSON CHILD AND FAMILY SERVICES, SOUTHEAST CHILD AND FAMILY SERVICES, SANDY BAY CHILD AND FAMILY SERVICES, MICHIF CHILD AND FAMILY SERVICES and METIS CHILD, FAMILY AND COMMUNITY SERVICES Applicants, -and- THE GOVERNMENT OF MANITOBA Respondent. NOTICE OF APPLEATION TO THE RESPONDENT AN APPLICATION HAS BEEN COMMENCED by the Applicant. The claim made by the Applicant appears on the following page. THIS APPLICATION will come on for a hearing before the presiding judge on Tuesday, May 15, 2018, at 10:00 am, at the Law Courts Complex, 408 York Avenue, in the City of Winnipeg, in Manitoba. IF YOU WISH TO OPPOSE THIS APPLICATION, you or a Manitoba lawyer acting for you must appear at the hearing. IF YOU WISH TO PRESENT AFFIDAVIT OR OTHER DOCUMENTARY EVIDENCE TO THE COURT OR TO EXAMINE OR CROSS-EXAMINE WITNESSES -2- ON THE APPLICATION, you or your lawyer must serve a copy of the evidence on the Applicant's lawyer or, where the Applicant does not have a lawyer, serve it on the Applicant, and file it, with proof of service, in the Court office where the application is to be heard as soon as possible, but not later than 4 days before the hearing. IF YOU FAIL TO APPEAR AT THE HEARING, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOP: SUNSTRUM DEPUTY REGISTRAR COURT OF QUEENS BENCH April 26, 2018 Issued by . Deputy Registrar 204 - 408 York Avenue Winnipeg, MB R3C 0P9 TO: The Government of Manitoba Manitoba Justice Civil Legal Services 730?405 Broadway Winnipeg MB R30 3L6 1) -3- APPLICATION THE APPLICANT MAKES APPLICATION for: a) b) d) A declaration that the Respondent, Government of Manitoba (?Manitoba") is and was not entitled to make use of, convert to its own use, or apply a set off with respect to funds received by the Applicants pursuant to the Children?s Special Allowance Act 8. C. 1992, c. 48 (the Act?) and the regulations thereunder. A declaration that the Applicants are solely entitled to maintain and make proper use of the CSA Act funds that the Applicants and those Agencies successfully apply for and receive from the Government of Canada through the Minister of National Revenue or his or her designate. A declaration that Manitoba has misused the CSA funds by failing and/or refusing to apply those funds exclusively toward the care, maintenance, education, training or advancement of the child in respect of whom the funds were paid to the Applicants in the first instance. A declaration that Manitoba is not entitled to deposit CSA funds into its general treasury or to exercise any dominion or control over the CSA funds. A declaration that Manitoba has acted in excess of or without jurisdiction, dishonestly and in bad faith by: i. Unilaterally determining and deciding that the specific children in respect of whom CSA funds have been paid to the Applicants depend on Manitoba for their care, maintenance, education, training and advancement to a greater extent than they do the Applicants. who successfully applied for and received the CSA funds from the Government of Canada. ii. Overturning and/or knowingly and wilfully disregarding the Government of Canada's decision that the specific children in respect of whom CSA funds have been paid to the Applicants are maintained by the Applicants in accordance with s. 9 of the Children?s Special Allowance Regulations in that 2) f) g) h) -4- those children depend on the Applicants for their care, maintenance, education, training and advancement to a greater extent than on any other department, agency or institution or on any person, including Manitoba. A declaration that Manitoba has breached its duties. including fiduciary duties, to the Applicants by reason of both the events described in this Application and based on the honour of the Crown. A declaration that Manitoba?s actions, policies and procedures as described in this Application are discriminatory. Solicitor and client costs. Such further and other relief as this Honourable Court may order. THE GROUNDS FOR THE APPLICATION are: a) b) d) Manitoba has forcibly and illegally obtained and misused $266 million and counting in CSA funds from First Nation and Metis child and family services agencies in Manitoba, including from the Applicants, since 2010. Manitoba continues to forcibly and illegally obtain and misuse over $25 million in CSA funds from First Nation and Metis child and family services agencies in Manitoba, including from the Applicants. The Applicants are each corporations without share capital mandated as child and family services agencies whose purpose is to provide child and family services under The Child and Family Services Act C.C.S.M. c. C80 and/or The Adoption Act C.C.S.M. c. A2. The Applicants are each considered to be First Nation and/or Metis child and family services agencies and are delegated by Child and Family Services Authorities to f) 9) h) -5- provide culturally appropriate child protection and prevention services in accordance with The Child and Family Services Act. The Applicants each have duties imposed upon them by 3. 7(1) of The Child and Family Services Act, which duties include, but are not limited, to: a. Protecting children; b. Providing care for children in their care; c. Developing permanency plans for all children in their care with a view to establishing normal family life for these children; and d. Developing and maintaining child care resources. In carrying out their statutory duties, the Applicants must, at times, apprehend children who are in need of protection and place those children into agency care on either a temporary or sometimes permanent basis. The Applicants are legally responsible for the care, maintenance, education and well being of the children they have apprehended for the time period for which they are under apprehension and/or for the time period that each Applicant is appointed as the legal guardian of any such children on a temporary or permanent basis pursuant to sections 25(1) and 48 of The Child and Family Services Act. The Applicants have two main sources of funding, those sources being the Government of Canada (the "Federal Funding?) and Manitoba (the ?Provincial Funding?). Federal Funding is paid and payable to First Nation and Metis agencies in Manitoba by both the Government of Canada?s Indigenous and Northern Affairs Canada governmental department and also by the Canada Revenue Agency through what are referred to as 'Children?s Special Allowances? pursuant to the CSA Act (collectively referred to as the "Federal Funding Framework?). Manitoba provides funding to both First Nation and Metis agencies and to non-First Nation and non-Metis child and family services agencies (?non-First Nation/Metis agencies?) through the Child and Family Services Division of Manitoba?s Department of Family Services. k) p) q) -6- Manitoba allows the non-First Nation/Metis agencies that it funds to run deficits in any given fiscal year. Manitoba provides funding for those deficits. Manitoba does not fund for or allow First Nation or Metis agencies in Manitoba, which includes the Applicants, to have a deficit in any fiscal year. Manitoba does not provide any funding to the Applicants with respect to children who are in the care of, and who are thereby maintained by, the Applicants, who are and were residents of a First Nation ?reserve? as that term is defined in section 2(1) of the Indian Act, R.S.C., 1985, c. 1-5. The Applicants only receive Federal Funding with respect to children who are and were residents of a First Nation reserve and who have come into the care of and are thereby maintained by the Applicants. As part of the Federal Funding Framework, and pursuant to the CSA Act, Children?s Special Allowances funds?) are non-taxable amounts paid to agencies that maintain children in care who are under 18 years of age and who reside in Canada. CSA funds are payable out of the Government of Canada?s Consolidated Revenue Fund. CSA funds are not automatically paid for each child who comes into the care of a child and family services agency. Pursuant to section 3 of the Children?s Special Allowance Regulations Regulations?), applications for CSA funds must be made to and approved by the Government of Canada?s Minister of National Revenue. Pursuant to sections 3 and 4 of the CSA Regulations, applications for CSA funding can only be approved when they are made in the prescribed manner by the department, agency or institution that ?maintains? the child. Pursuant to section 3(1) of the CSA Act, and section 9 of the CSA Regulations, a child is considered to be 'maintained? by an agency if, at the end of a given month, the child is dependant on the agency for his or her care, maintenance, education, training, and advancement to a greater extent than any other agency or individual. In order to approve an application for CSA funding, the Minister of National Revenue?s office must determine and decide that the applicant maintains the t) aa) -7- specific child with resPect to whom the application is made to a greater extent than any other department, agency or institution or any person in accordance with sections 3(1) of the CSA Act, and section 9 of the CSA Regulations. Once approval for the CSA funding application is granted by the Minister of National Revenue?s office, CSA funding payments begin to be made by the Canada Revenue Agency the month after the initial month that the child at issue started to be maintained by the applicant agency and all of the eligibility conditions have been met. The monetary value of the CSA funds paid by the Canada Revenue Agency to successful applicant agencies with respect to a given child amounts to the equivalent of the Canada Child Tax Benefit, the National Child Benefit Supplement, the Universal Child Care Benefit and the Disability Benefit for which the subject child is eligible. Pursuant to section 3(2) of the CSA Act, CSA funds must only be applied exclusively toward the care, maintenance, education, training or advancement of the specific child in respect of whom they are paid. The Applicants ?maintain? each child that is brought into their care in accordance with the definition of the term ?maintenance' as is set out in section 9 of the CSA Regulation. The Applicants have applied for, and do apply to, the Minister of National Revenue?s office for CSA funding for each child that is brought into their care. The Minister of National Revenue?s office has granted each and every application for CSA funding that has been filed by the Applicants. CSA funding payments have thereafter been made by the Canada Revenue Agency to the Applicants for each of the successful CSA funding applications made by the Applicants. Those payments all began in or around the month after any given CSA funding application was approved by the Minister of National Revenue's office. In or around the years of 2006-2007, Manitoba took the position and thereafter demanded from all child and family services agencies in Manitoba, including the Applicants, that all CSA funds received by the child and family services agencies bb) cc) dd) ee) ff) 99) hh) -3- with respect to provincially funded children in their care must be remitted to Manitoba. The Applicants, along with all other First Nation agencies in Manitoba, refused to remit to Manitoba the CSA funds that they had successfully applied for and received from the Government of Canada. Beginning in 2010, Manitoba began a process of unilaterally holding back 20% of funding from First Nation and Metis child and family services agencies in Manitoba, including from the Applicants, as a means of forcibly and wrongfully applying a set- off as against the Applicants for their refusal to remit the CSA funds to Manitoba since Manitoba's initial illegal demand in 2006-2007 (the "Illegal Clawback?). Manitoba also, at this time, required and demanded that all First Nation and Metis child and family services agencies in Manitoba, including the Applicants, remit any current and future CSA funds they received as a 'flow?through? to them (the ?Forced Remittance?) at the threat of Manitoba unilaterally imposing a second illegal Clawback against any agencies, including the Applicants, as a set-off. All First Nation and Metis child and family services agencies in Manitoba, including the Applicants, continue to apply for CSA funds with respect to each child that comes into their care. The previous, current and future CSA funds successfully applied for and received by the Applicants are the legal property of the Applicants to be used in accordance with the CSA Act. Manitoba has deposited all of the CSA funds it has received, including those CSA funds received from the Applicants, into Manitoba's General Treasury. Manitoba has not applied the CSA funds that it has received and continues to receive from the Applicants and/or other child and family services agencies through the Illegal Clawbacks and Forced Remittances exclusively towards the care, maintenance, education, training or advancement of the specific children for whom those funds were paid. Manitoba?s actions were and are illegal. jl) kk) H) mm) nn) 00) pp) .9. Manitoba knows that its actions were and are illegal. Manitoba wrongfully identifies CSA funds as a source of ?revenue?. Manitoba does not have the legal or jurisdictional authority to require the Applicant's CSA funds, that have been successfully applied for and paid to the plaintiff by the Canada Revenue Agency through the approval of the Federal Minister of National Revenue, to be diverted, payable, or remitted to Manitoba by the Applicants or to be used as a set-off as against the Applicants for a debt that does not exist at law. It is only the office of the Federal Minister of National Revenue, and thereafter the Federal Court of Canada by way of judicial review, who has the jurisdictional authority to determine which agency or governmental department is entitled to be paid and make use of the CSA funds. The Government of Canada does not require any clawbacks or remittances from First Nations agencies, including the Applicants, with respect to children who are in their care and with respect of whom the First Nations agencies, including the Applicants, are provided with solely Federal Funding. As such, Manitoba?s interrelated actions, policies and procedures with respect to the illegal Clawbacks and Forced Remittances have resulted in the Applicants maintaining the ownership and beneficial use of CSA funds they have received and continue to receive for children in their care who have solely Federal Funding due to their ancestry and/or national and ethnic origin in that they are both First Nations and were apprehended from the care of their biological family or legal guardians while resident on a First Nation Reserve, but the Applicants are not allowed to maintain and use those same CSA funds with respect to affected First Nations children who are or were apprehended by the Applicants ?off?reserve'. Furthermore, the Clawbacks and Remittances have and continue to result in greater financial hardships to First Nation and Metis agencies, including the Applicants, as compared to the financial hardships felt by non-First Nations and non-Metis agencies in the same regard, in that First Nation and Metis agencies have limited funding and are not able to run deficits, while Manitoba does allow and provide funding for non-First Nation and non-Metis agencies to run a deficit in any given fiscal year. -10- qq) These interrelated actions, policies and procedures amount to discrimination, including discrimination on its face, adverse affect discrimination and systemic discrimination. in accordance with both the common law and sections 9(2) and 9(3) of The Human Rights Code, C.C.S.M. 0. H175. rr) Manitoba?s actions and conduct described herein are arbitrary, deliberate, callous, highhanded and reckless. The Children?s Special Allowance Act and Regulations. tt) Section 10 of The Proceedings Against the Crown Act, C.C.S.M. c. P140. uu) Rule of the Queen?s Bench Rules; and W) Such other and further grounds as the Applicant may advise and this Honourable Court may accept. 3) THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the Application: a) The Affidavits of Clemene Hornbrook, Richard De La Ronde, Bonnie Kocsis, Rhonda Kelly, Greg Besant and Margaret Marin, to be sworn; b) Such further and other material as the Applicant may adduce and this Honourable Court may accept. April 26, 2018 COCHRANE SAXBERG Barristers and Solicitors 2200 - One Lombard Place Winnipeg, Manitoba R33 0X7 HAROLD COCHRANEI SHAWN C. SCARCELLO Telephone: 204-594-6688 Facsimile: 204-808-0987