Alberta government wins legal bid, but urged to take care when cutting benefits to young adults

The Alberta Court of Appeal has overturned an injunction that temporarily suspended legislation that stopped hundreds of young adults from losing benefits as they transition from care

Lower court judge 'failed to give adequate weight to the public interest'

The Alberta Court of Appeal overturned an injunction that had been granted last spring. (Trevor Wilson/CBC)

Hundreds of young adults transitioning out of the child welfare system will be cut off from their government benefits for now, after Alberta's highest court on Wednesday overturned an injunction granted last spring.

However in upholding the Alberta government's position, the court also had strong words about ensuring these vulnerable members of society are treated carefully. 

The injunction, granted in March by the Court of Queen's Bench, halted a government measure to reduce the age eligibility of the Support and Financial Assistance Agreements (SFAA) program, with participants aging-out at 22 years instead of 24.

On Wednesday, the Alberta Court of Appeal disagreed with the lower court's decision to temporarily suspend the legislation until a constitutional case can be heard.

"Put simply, the relative strength of the respondent's case, considered in combination with the nature and extent of potential harm, does not outweigh the public interest in the enforcement of legislation in this case. An interlocutory injunction was unwarranted in these circumstances," the decision stated.

The court decision also offered some moral guidance to the government.

"Any transition of these vulnerable individuals to a new program should be done with careful consideration to its impact on them, and with an eye to minimizing harm," it wrote.

"The need for thoughtful transition is particularly acute during a time of social and physical isolation, as we are experiencing in this pandemic. I encourage Alberta to be responsive to this transitional need."

On Wednesday, the province said it would heed that advice. 

"Given the court's decision, children's services will work with each young adult older than age 22 over an extended period of time to successfully transition them to independence or other government programs as appropriate," wrote Becca Polak, press secretary to Children's Services Minister Rebecca Schulz, in an email to CBC News.

"We will continue to serve former youth in care through the SFAA program four years after they reach the age of majority (18) and much longer through programs such as Advancing Futures to ensure they have the skills needed to successfully transition into adulthood."

Fight continues

The appeal was the latest legal skirmish in a constitutional challenge brought forth by a young single mother who sued the province.

The woman, who turned 22 last August, argued that the abrupt end to services that included the emotional support of her social worker — in effect, an individual who took on the role of a parent — amounted to cruel and unusual punishment. 

Identified as A.C. in court documents, she said the change could force her to abandon her six-year educational path to employment and return to sex work to support herself and her daughter.

"It still weighs heavily on my mind," A.C. told CBC News Wednesday after learning about the decision. "Especially right now, with the pandemic, there's not a lot of work out there … It's something I don't want to have to do."

But A.C. said she is determined to stay in school and keep fighting for justice "not only myself."

Her lawyer Avnish Nanda questioned how the harm to A.C. and other participants outweighed the "minimal cost the government would incur by continuing to provide benefits."

Nanda said the decision puts A.C. and thousands of others at risk of harm such as sex work, drug use and suicidal ideation.

"If you asked the layperson as to which party is most likely to be negatively impacted, I think that many would side with A.C. and other children in care," Nanda said. 

"The cost to the government is peanuts, especially in the broader context of what this government has spent money on," said Nanda, referring to the $1.5 billion investment in Keystone XL.

Lawyer Avnish Nanda says the Court of Appeal has raised questions that need to be decided by the Supreme Court of Canada. (Peter Evans/CBC)

But he said the story isn't over. 

"The Court of Appeal raised questions of law that need to be decided by the Supreme Court of Canada," he said.

Consider public interest

The Court of Appeal's focus was on whether the lower court correctly assessed the legal pillars necessary to grant the injunction and temporarily suspend the legislation.

It found the judge incorrectly concluded that maintaining the status quo for a relatively small number of Albertans was in the public interest. The number of people affected and the extent of the impact were important considerations; but instead, the judge relied heavily on the testimony of A.C., the decision stated.

"The chambers judge failed to put a number of important factors on the scale, and failed to give adequate weight to the public interest in weighing the balance of convenience,"  wrote Justice Marina Paperny.

However, the appeal court made clear the merits of an ongoing charter application are not part of this decision.

"The issue on appeal is not whether the respondent's claim should or will ultimately succeed, but whether the interlocutory injunction should have been issued."

With files from Therese Kehler