A ReconciliACTION YEG Long Read
Tansi Nîtôtemtik,
What happens to Indigenous children and youth who “age out” of the child welfare system? In Alberta, the Support Financial Assistance (SFA) program provides guidance and financial support to young adults who grew up in the child welfare system to assist in their transition into adulthood.[1] In 2019, the government suddenly and unexpectedly reduced the program’s maximum age from 24 to 22 years of age, which eliminated life-altering supports for hundreds of young adults, including Indigenous people. This article will explore why this sudden change is so devastating to one particular Indigenous young woman, and explain how this unexpected and arbitrary decision could lead to significant changes in both Charter and Aboriginal law.
Artwork: “Fire Within” by Simone McLeod
Indigenous Youth in the Child Welfare System
There is a clear correlation between Indigenous youth who grow up in the child welfare system and “high rates of suicide, homelessness, substance misuse, incarceration … and low levels of educational attainment.”[2] In fact, the Saskatchewan Children’s Advocate Officer found that “[t]he effects of long stays in foster care are not dissimilar to those of residential school stays.”[3] The effects of growing up in the child welfare system are so stark that some have called for child welfare to be recognized as a social determinant of health for Indigenous children.[4]
Understandably, the transition from the child welfare system into adulthood can be fraught for any youth, regardless of their cultural identity. However, the Indigenous children are especially vulnerable to falling into difficult paths as they struggle to find their identity and sense of belonging,[5] which can re-start the cycle of inter-generational trauma.
Alberta’s Support, Financial Assistance (SFA) Program
To help ease this transition, the Government of Alberta created the SFA program in 2004, which provides support and financial assistance to Indigenous and non-Indigenous youth who “age out” of child services in order to help them become self-sufficient in adulthood.[6] Since 2013, the maximum age for eligibility remained 24 years of age.
However, in November 2019 the government suddenly announced that the maximum age would be reduced to 22 years of age effective March 31, 2020. This sudden change came as a shock to many vulnerable youths whose futures depend on this program.
A.C. is one such youth.
A.C.’s Legal Challenge Against the Decision to Reduce the SFA’s Maximum Age
A.C., a young Indigenous woman, was raised in and out of the child welfare system from the age of 12 as a result of her father being incarcerated for murder and a physically abusive mother. At the age of 13 she entered into child sex trafficking. At 14, she attempted suicide for the first time. By 17, she had become reliant on drugs and alcohol and had returned to sex work.[7]
When she was 19, A.C. entered into the SFA program and established a positive relationship with her social worker. AC credits her social worker with “help[ing] her escape a cycle of violence and addiction, reconnecting her and her daughter with their Cree heritage,” and for assisting her in pursuing university-level studies in social work.[8] When the Government of Alberta announced that she would no longer have access to the program when she turned 22, A.C. saw her future plans disappear.[9]
A.C.’s mental health suffered because of this news. She worried that the condensed timeline, from two and a half years to six months, would be impossible to achieve her goals. She worried that she would fall back into substance abuse, return to sex work to provide for her family, and that suicidal ideation would re-emerge.[10] Presumably, she also worried that the emotional support from her case worker would disappear on her 22nd birthday and she would be left all alone.
A.C., with the help of Avnish Nanda, a local lawyer and social justice activist, is taking legal action against the Government of Alberta for its abrupt and arbitrary decision to cut this social service program. Specifically, they claim that the decision breaches the following rights:
Section 7 Charter[11] right to security of the person
As a particularly vulnerable person, the sudden and unexpected removal of SFA programming caused A.C. severe psychological suffering and puts her at risk of suicide.[12]
Section 7 Charter right to liberty
The decision to remove SFA support will deprive A.C. of the right “to make fundamental personal life choices”.[13]
Section 12 Charter right not to be subjected to cruel and unusual treatment
The way in which the decision was made and the government’s refusal to grandfather current participants is cruel and unusual treatment.[14]
Procedural fairness
The decision infringed A.C.’s Charter rights in a way that is contrary to the principles of fundamental justice. Specifically, decisions affecting individual rights should not be arbitrary, and individuals affected by a legal decision should be allowed to participate in the decision-making process.[15]
Breach of fiduciary duty
The government took A.C. into its care through the child welfare system and continued to provide public support through the SFA program, which gives rise to a fiduciary duty.[16] A “fiduciary” is a legal relationship where one party (A.C.) is effectively at the mercy of another (the government), which gives rise to certain legal obligations.
A.C. was unsuccessful in enjoining the Government of Alberta, which is a legal procedure to delay the effects of the government's decision until after the courts render a decision on the merits of the case. The Alberta Court of Appeal found that the strength of A.C.’s case and the potential harm that the decision could cause did not outweigh the public interest in upholding the government’s decision.[17] The Supreme Court of Canada dismissed A.C.’s leave to appeal to the highest court.[18] Although the government’s decision still stands, legal action is proceeding to determine whether the Government of Alberta infringed A.C.’s rights.[19]
A Revolution in Charter Rights and the Crown’s Obligations to Indigenous Youth in Care
This case is important to all young adults in Alberta who are transitioning from the child welfare system into adulthood. The courts will be asked to determine whether section 7 of the Charter can give rise to economic rights and/or positive rights (rights that oblige governments to take action to protect).[20] This would be a new application of Charter rights and would be revolutionary in Charter jurisprudence.
But this case is uniquely important to Indigenous young adults who grew up in the child welfare system. In light of the recent Act respecting First Nations, Inuit and Métis children, youth and families, which recognizes an Aboriginal right to exercise jurisdiction over child welfare and family services,[21] the courts may be asked to revisit old jurisprudence about the relationship between the Crown and Indigenous children under its care.[22] It is possible that the Crown’s action, taking Indigenous children under its care, infringes this newly-recognized Aboriginal right and gives rise to a fiduciary relationship. If so, this fiduciary relationship would engage the honour of the Crown and oblige the government “to treat [A]boriginal peoples fairly and honourably, and to protect them from exploitation,”[23] which in turn could give rise to a positive obligation to provide social services to Indigenous young adults transitioning out of the child welfare system.
As these legal proceedings unfold, dear readers, we encourage you to watch this space.
The honour of the Crown may be at stake.
Until next time,
ReconciliACTION YEG
[1] Child, Youth and Family Enhancement Act, RSA 2000 c 12 at s 57.3; and Child, Youth and Family Enhancement Regulation, Alta Reg 160/2004. [2] Cindy Blackstock, Ivan Brown & Marlyn Bennett, “Reconciliation: Rebuilding the Canadian Child Welfare System to Better Serve Aboriginal Children and Youth” in S. McKay, & S. Thomas Prokop (eds), Putting a human face on child welfare: Voices from the Prairies(Regina: Prairie Child Welfare Consortium, 2007) 59, online: Canadian Child Welfare Research Portal<https://cwrp.ca/sites/default/files/publications/prairiebook/Putting_a_Human_Face_on_Child_Welfare.pdf> at 63. See also Caroline L. Tait, Robert Henry & Rachel L. Walker, “Child Welfare: A Social Determinant of Health for Canadian First Nations and Métis Children” (2013) 11:1 Pimatisiwin: A J Aboriginal & Indigenous Community Health 39 online: Pimatisiwin <http://pimatisiwin.com/online/wp-content/uploads/2013/07/04Tait.pdf> at 47. [3] Tait et al, supra note 2 at 46. [4] Ibid at 43-44. [5] Ibid at 48. [6] Supra note 1. [7] AC and JF v Alberta, 2021 ABCA 24 (CanLII) at para 9 [A.C.]. [8] Andrea Huncar, “Appeal dismissal puts Alberta young adults transitioning out of government care in limbo”, CBC News (8 July 2021) online: CBC News https://www.cbc.ca/news/canada/edmonton/sfaa-government-care-benefits-cut-off-1.6094200>. [9] A.C., supra note 7 at paras 9-10. [10] Ibid at paras 10 – 11. [11] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. [12] Ibid at paras 40-41. [13] Ibid at para 41. [14] Ibid at para 42. [15] Ibid at para 41. [16] Ibid at paras 42 and 95. [17] A.C., supra note 7 at para 70. [18] A.C., et al. v Her Majesty the Queen in Right of Alberta, 2021 CanLII 54465 (SCC). [19] Huncar, supra note 8. [20] A.C., supra note 7 at paras 47-49. [21] Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24. [22] See e.g. Brown v Canada (Attorney General), 2017 ONSC 251 (CanLII) at paras 66 and 68 (the Court narrowly defined “fiduciary duty” as arising from “a communal [A]boriginal interest in land”, not from taking Indigenous children into care); and Wewaykum Indian Band v Canada, 2002 SCC 79 (CanLII) at paras 80 and 85 (a fiduciary relationship may arise when the Crown assumes discretionary control over a specific Aboriginal interest). [23] Mitchell v MNR, 2001 SCC 33 (CanLII) at para 9.