Child Welfare (1-5): Current Problems

Fed. Govt.


January 26, 2016


Canadian Human Rights Tribunal

Canadian Human Rights Tribunal

The Canadian Human Rights Tribunal (CHRT) released a ruling (2016 CHRT 2) that found Canada discriminates against First Nations children by providing less child welfare funding to help keep them safe and by not implementing Jordan’s Principle to give them the services they need, when they need them. The CHRT ordered Canada to immediately stop the discrimination and to fully implement Jordan’s Principle. Since the initial ruling, the CHRT has had to issue 20 additional non-compliance and procedural orders to Canada.
What follows is from the First Nations Child and Familly Services of Canada website:


January 26, 2022


Canadian Human Rights Tribunal

CHRT Judicial Reviews

First Judicial Review: Ruling on immediate relief concerning Jordan’s Principle, cited as 2017 CHRT 14 (“the May 26th Orders”).

On June 23, 2017, Canada filed an application for judicial review of certain aspects of the May 26th Orders, seeking to quash paragraphs thereof prohibiting Canada from engaging in case conferencing and requiring Canada to complete the initial evaluation and determination of requests within 12-48 hours of receipt

Tribunal Decision

The Tribunal noted that the manner in which Canada limits funding for prevention services is not an acceptable fiscal or social policy and is harming First Nations children as a result. Canada is taking an overly narrow approach to honouring Jordan’s Principle that applies to all First Nations children in need of care, regardless of where they reside. The ruling sets out a number of directives and timelines for Canada to comply with Jordan’s Principle.

Second Judicial Review: Decision to award $2B in damages to approximately 53,000 Indigenous children and youth wrongly removed or denied essential services.

Tribunal Decision:

On September 29th, 2021, Justice Favel of the Federal Court released his decision on two matters put forward by Canada for Judicial Review, in cases T-1559-20 and T-1621-19.

The Federal Court has dismissed Ottawa’s appeals of two human rights tribunal rulings concerning First Nations child welfare compensation and protection. The court upheld a 2019 ruling of the Canadian Human Rights Tribunal that ordered Ottawa to pay $40,000 — the maximum amount permitted under the Canadian Human Rights Act — to thousands of First Nations children and their families.

T-1559-20 and T-1621-19 Judgment and Reasons

Third Judicial Review: Capital Costs award decision

On September 24, 2021, Canada filed for Judicial Review on the Letter Decision issued by the Canadian Human Rights Tribunal on August 26, 2021.

Notice of Application for Judicial Review
Jan. 26, 2022: Federal Government has withdrawn its application for judicial review of a CHRT (Tribunal) ruling on capital assets funding for First Nations child and family services and Jordan’s Principle. The government decision will ensure that First Nations have access to funding for the purchase and construction of capital assets in accordance with the Tribunal’s order


August 26, 2021


Canadian Human Rights Tribunal

Compliance and Procedural Orders

On August 26, 2021, the Canadian Human Rights Tribunal issued a letter-decision to clarify and reinforce previous rulings for the purpose of ongoing negotiations and communication between all the parties. The CHRT confirms that funding of buildings and additional capital assets that support the delivery of FNCFS and Jordan’s Principle programs and prevention services must be provided to FNCFS agencies, including small agencies and First Nations. This letter-decision serves as a precursor to a larger order accompanied by reasons.

2021 CHRT 12 March 17, 2021. Tribunal approves a consent order regarding non-Agency Communities providing child and family services.

2021 CHRT 7 February 12, 2021. Tribunal releases ruling 2021 CHRT 7 “Framework for the Payment of Compensation under 2019 CHRT 39

2021 CHRT 6 February 11, 2021. Tribunal releases ruling 2021 CHRT 6 “Compensation Process Ruling on Four Outstanding Issues in Order to Finalize the Draft Compensation Framework“

2020 CHRT 15 May 28, 2020. The Tribunal rules the compensation process on outstanding issues in order to finalize the Draft Compensation Framework.

2020 CHRT 36 November 25, 2020. Order regarding criteria on the groups of children eligible to receive services through Jordan’s Principle.

2020 CHRT 24 August 11, 2020. Order regarding the Band Representative Services for Ontario First Nations, Tribal Councils and First Nations Child and Family Service Agencies.

2020 CHRT 20 July 17, 2020. Order on the groups of children eligible to receive services through Jordan’s Principle.

2020 CHRT 17 June 12, 2020. Order on a disclosure issue.

2020 CHRT 7 April 16, 2020. The Tribunal rules on three questions where the Caring Society, Assembly of First Nations and Canada did not reach a consensus and required further guidance from the Tribunal with regard to the draft “Framework for the Payment of Compensation under 2019 CHRT 39.”

2019 CHRT 11 March 4, 2019. CHRT grants the Congress of Aboriginal Peoples (CAP) limited interested party status with conditions.

2019 CHRT 39 September 6, 2019. Order for Canada to pay maximum compensation ($40,000) for First Nations children and their families who were negatively impacted by Canada’s discriminatory practices.

2019 CHRT 7 February 21, 2019. Order for non-status First Nations children recognized by their Nation in urgent situations to be covered under Jordan’s Principle until the evidence has been heard regarding the definition of a First Nations child.

2019 CHRT 1 January 7, 2019. Order for Canada to pay the complainants and the Chiefs of Ontario for compensation for knowingly failing to disclose 90,000 highly-relevant documents to the complaint and for failing to advise the CHRT and the parties at the earliest opportunity.

2018 CHRT 4 February 1, 2018. Order for Canada to undertake a cost analysis First Nations Child and Family Services Program and 1965 Agreement; and, Canada to fund prevention/least disruptive measures on actuals.

2017 CHRT 35 November 2, 2017. Order to amend 2017 CHRT 14 following Canada’s judicial review of certain aspects.

2017 CHRT 14 May 26, 2017. Order regarding immediate relief for Jordan’s Principle.

2017 CHRT 7 March 29, 2017. Order moving forward Nishnawbe Aski Nation’s motion for immediate relief including the Choose Life initiative.

2016 CHRT 16 September 14, 2016. Order for Canada to update its policies, procedures and agreements to comply with the findings in 2016 CHRT 2 with regard to the First Nations Child and Family Services Program, 1965 Agreement and Jordan’s Principle.

2016 CHRT 10 April 26, 2016. Order for Canada to fully implement Jordan’s Principle within two weeks (May 10, 2016).

2016 CHRT 2 Kids win! In a landmark ruling, the Canadian Human Rights Tribunal finds the Canadian government is racially discriminating against 165,000 First Nations children.
https://fncaringsociety.com/i-am-witness-tribunal-timeline-and-documents


September 25, 2019


Government and Institution Issues

Deaths of Indigenous Children in Child Welfare

72 Indigenous children connected to child welfare died in northern Ontario, where three Indigenous agencies covering most of the territory were underfunded approximately $400 million over a five-year period. The number of deaths jumps to 102 Indigenous children when looking at the entire province between 2013 to 2017. Almost half of the deaths, 48 in total, happened in the two years it took Prime Minister Justin Trudeau to respond to multiple orders made by the Canadian Human Rights Tribunal that first found Canada guilty of purposely underfunding on-reserve child welfare in its historic decision on Jan. 26, 2016.

Suicide = 38; Accident = 24; Undetermined = 22; Natural = 17; Homicide = 1 (APTN)

But while the federal government may be the bagman, funding at least 93 per cent of on-reserve child welfare, the Ontario government created the system where these children died and provides the law within which the child welfare agencies operate. It’s a system that has been found to be a complete failure over and over up until just last year when the chief coroner of Ontario released a special report into the deaths of 12 children who died in care, eight of whom were Indigenous. During the five-year period between 2013 and 2017 the coroner lists 541 deaths involving child welfare and 102 were Indigenous. Indigenous people represent less than three per cent of Ontario’s population.
https://aptnnews.ca/2019/09/25/inside-a-child-welfare-system-where-102-indigenous-kids-died-over-5-years/

Safe with Intervention” – Report of the Expert Panel on the deaths of Children and Youth in residential Placements September 2018. Office of the Chief Coroner

To the Government of Canada and the Government of Ontario:

  1. Immediately provide equitable, culturally and spiritually safe and relevant services to Indigenous young people, families and communities in Ontario.

To the Ministries of Children, Community and Social Services, Education, Health and Long-Term Care, and Indigenous Affairs:

  1. Identify and provide a set of core services and support an integrated system of care for young people and their families across a wholistic continuum to every child in Ontario.
  2. Services must include health, mental health and wellbeing, education, recreation, child care, children’s mental health, early intervention services, prevention services and developmental services. Service provision should be geared to the needs and intensity of needs, of each young person and family.
  3. Develop a wholistic approach to the identification of, service planning for and service provision to high-risk young people (with or without child welfare involvement) that supports continuity of care to age 21 years.
  4. Strengthen accountability and opportunities for continuous improvement of the systems of care through measurement, evaluation and public reporting.

To the Ministry of Children, Community and Social Services:

  1. Immediately enhance the quality and availability of placements for young people in care.

https://www.mcscs.jus.gov.on.ca/sites/default/files/content/mcscs/docs/Safe%20With%20Intervention%20Report%20Final.pdf


October 29, 2021


Canadian Human Rights Tribunal

Federal Government’s Protective Appeal

Toronto Star – The federal government has launched a “protective appeal” of the Federal Court’s Sept. 29, 2021 decision dismissing Ottawa’s appeals of two human rights tribunal rulings concerning First Nations child welfare compensation and protection. The court upheld a 2019 ruling of the Canadian Human Rights Tribunal that ordered Ottawa to pay $40,000 — the maximum amount permitted under the Canadian Human Rights Act — to thousands of First Nations children and their families and that expanded the eligibility criteria for Jordan’s Principle. The government’s actions put a pause on litigation to try and negotiate an out-of-court settlement with the First Nations Child and Family Caring Society and the Assembly of First Nations.

Ottawa has now agreed to work toward a “global resolution” by December 2021 on several issues that have been subject to litigation:

  • Providing fair compensation to affected First Nations children who were removed from their homes and affected by the “narrow” scope of Jordan’s Principle;
  • achieving long-term reform of the First Nations Child and Family Service program; and
  • funding that would support Jordan’s Principle and the delivery of relevant services on reserve.

November 5, 2020


Jordan's Principle

Jordan’s Principle Expenses

Oakville Beaver – This past June, Jordan’s Principle abruptly cut funding for his daughter’s treatment, saying it was “too expensive,” said the girl’s father, Stephen Paquette, Indigenous Knowledge Guide for the Halton District School Board. Despite repeated requests, Indigenous Services Canada has so far refused to provide any budgetary guidance so he can find less expensive alternatives for her complex medical treatment currently delivered through Indigenous Child Services Management whose services are comprehensive, holistic and preventative and most important – Indigenous.

“There are lots of services and supports out there (but) I find the struggle, the challenge, is that they don’t understand or appreciate the Indigenous world view and lived experience.” Time is of the essence for his daughter, but the judicial review he has instigated could take months, said Paquette. A judicial review is a court process which looks at administrative body decisions to ensure they are fair and lawful. Recently, however, Paquette’s lawyer was able to negotiate interim funding from Jordan’s Principle for four weeks of treatment with ISCM, but not for the number of hours his daughter requires, said Paquette.


February 11, 2022


Bill C-92

Québec Constitution Challenge to Bill C-92

CBC – The Quebec Court of Appeal issued a decision yesterday finding the law constitutional apart from two key sections that relate to Aboriginal self-government and child and family services that it ruled are unconstitutional. The court took issue with the section of the law that allows Indigenous child welfare laws to supersede provincial laws when they conflict. “It’s quite a devastating decision,” said Mary Ellen Turpel-Lafond, professor of law at the Peter Allard School of Law at the University of British Columbia. “The only kind of law that would be allowed under this decision is one that’s clearly subordinate to the provincial law.”

Turpel-Lafond, who was involved in consultations on developing the legislation, called the decision a setback for Indigenous children, families and self-government. She said the work First Nations, Métis and Inuit governments are doing to introduce new laws and policies to reunite families is now in doubt. She said the Quebec court’s decision should be reviewed by Supreme Court of Canada — a process that could take two years. “This is a bit of a slam dunk for the Indian Act,” she said.

“If you happen to be a kid that’s not living in the province that’s particularly friendly to Indigenous peoples having rights, you may not get any rights. That’s not what we want.
https://courdappelduquebec.ca/en/judgments/details/reference-to-the-court-of-appeal-of-quebec-in-relation-with-the-act-respecting-first-nations-inuit/


December 20, 2019


Bill C-92

Québec Constitution Challenge to Bill C-92

Assembly of First Nations (AFN) National Chief Perry Bellegarde says the Government of Quebec’s decision to request that the Quebec Court of Appeal rule on the constitutionality of Bill C-92, the Indigenous child welfare act, is a setback that will further harm First Nations children and families.

This move could lead to delay and conflict, further harming our children and families. The AFN will look to intervene in this case and we expect the federal government to stand with us in upholding First Nations jurisdiction. We need urgent action to address the discrimination and the legacy of our children taken from their families and Nations. Bill C-92 affirms First Nations jurisdiction over child welfare.


March 17, 2022


Bill C-92

Québec Constitution Challenge to Bill C-92: AFN supports appeal to Supreme Court

The Assembly of First Nations (AFN) announced today that it stands with First Nations in Quebec and all First Nations’ jurisdiction over child and family law.

“Taking the Act to the Supreme Court presents an opportunity for the full recognition and affirmation of First Nations Inherent rights, as well as the exercise of this jurisdiction, at the highest judicial levels of Canada,” said AFN Manitoba Regional Chief Cindy Woodhouse, who leads the portfolio on child and family services for the AFN Executive Committee. “The Act is the positive result of decades of advocacy to respect First Nations systems that support the best interests of our families. The decision from the Quebec Court of Appeal affirmed the First Nations Generic Inherent Right in Child and Family Services and to make laws that are protected under section 35 of the Constitution. The province of Quebec’s challenge undermines all of that progress.”


February 10, 2022


Bill C-92

Quebec Court of Appeal rules against two sections of Bill C-92

The Court of Appeal of Québec ruled on Feb. 10, 2022 that Bill C-92 “is constitutional, except for ss. 21 and 22(3), which are not”. These sections deal with the right of Aboriginal self-government and the regulation of Child and Family Services. As Mary Ellen Turpel-Lafond, professor of law at the Peter Allard School of Law at the University of British Columbia says,” “The only kind of law that would be allowed under this decision is one that’s clearly subordinate to the provincial law…It’s a bit of a slam dunk for The Indian Act.”


January 4, 2022


Canadian Human Rights Tribunal

Two Agreements-in-Principle

Federal Government – In a total settlement package valued at $40 billion, the AFN, the Government of Canada and other parties signed two Agreements-in-Principle on December 31, 2021.

  • First Agreements-in-Principle proposes a total settlement of $20 billion in compensation to First Nations children and families impacted by discrimination through the FNCFS program and the improper implementation of Jordan’s Principle. The compensation acknowledges that First Nations children were unnecessarily apprehended from their parents and communities and suffered harms that include abuse, the loss of language, loss of culture and loss of connection to their families and homelands. Compensation will also be made available to certain individuals who were subjected to a delay, denial or disruption of services, supports, treatment and products as a result of the federal government’s narrow application of Jordan’s Principle.
  • Second Agreement-in-Principle commits the Government of Canada to $19.807 billion to reform the current FNCFS program and includes a framework to correct the many discriminatory aspects of the FNCFS program and the implementation of Jordan’s Principle.

The parties to the Agreement-in-Principle – Canada, the Assembly of First Nations, the First Nations Child and Family Caring Society, the Chiefs of Ontario, the Nishnawbe Aski Nation, and counsel for the Moushoom and Trout class actions – will now negotiate a Final Settlement Agreement

“The Canadian Human Rights Tribunal ruled almost six years ago now that the current program provides incentive for child welfare agencies to apprehend children,” said AFN Regional Chief Woodhouse. “Before the Tribunal’s involvement, a child welfare agency was not reimbursed for expenses incurred to provide services unless the child is removed from their home and placed into state care. Meanwhile, the federal government’s narrow implementation of Jordan’s Principle has resulted in First Nations children being denied medical and other services which, in some cases, forced parents to place their children into care. The AIP on reform is aimed at eliminating these structural problems.”

More than 200,000 First Nations children and youth who were removed from their homes and nations or denied services under Jordan’s Principle could be eligible for compensation.


March 21, 2019


Bill C-92

Yellowhead Institue Critique of Bill C-92

“Bill C-92, An Act respecting First Nations, Métis and Inuit children, youth and families” was graded as follows by the Yellowhead Institute of Ryerson University based on analysis by five Indigenous legal scholars. (See also First Nations Child and Family Caring Society Information Brief in C2A # 4)

GRADES:
National Standards: …………………… C
Funding: ……………………………………..F
Accountability: ……………………………D
Jurisdiction: ……………………………….D
Data Collection and Reporting: …..D

Yellowhead Institute Recommendations

National Standards

  • Ensure that standards exist in law so that Indigenous children do not automatically become government wards without significant efforts are made to maintain familial and community care.
  • Require ongoing legal relationships, or at the least, access to children’s family of origin.
    Include strong, mandatory language around BIOC to address judicial bias and overtake any binding precedents in this area.
  • Include “active efforts” or “maximum contact” clauses in relation to Indigenous child welfare with First Nations have not taken over full jurisdiction.
  • A requirement of written documentation of active efforts to find placements according to the priority set out or affidavit evidence from the Indigenous group that there is no available placement.
  • And/or a presumption that an access order with some family or community member and a long-term funding commitment for regular travel back to the community is included as a term of any permanency order.

Funding

  • Attach clear federal funding commitments for First Nations pursuing child welfare jurisdiction.
  • Ensure funding reflects the principle of substantive equality and which also meets the needs and circumstances of children on reserve
  • Ensure off-reserve, Métis, non-status and Inuit children and families are included in budgets, distinct from non-Indigenous children and families.
  • Compel coordination between federal and provincial governments regarding incentives to cooperate and adequately fund Indigenous governing bodies to implement Jordan’s Principle.

Accountability

  • Establish a dispute resolution mechanism to deal with situations where Indigenous groups experience challenges in entering collaboration agreements with Canada and the provinces, in the cases they are required.
  • Create an independent body to hear disputes and make binding decisions on all parties.

Jurisdiction

  • Recognize jurisdiction as a right to self- determination under UNDRIP rather than a s. 35 right.
    Set a clear path out of the existing jurisdictional squabbling between the provincial and federal governments.
  • Revise paramountcy rules so they are clear enough for, and accessible to community members, so that can understand in time sensitive or emergency circumstances.
  • Contain clear conflict of laws principles and processes that give real weight to Indigenous law-making authority and jurisdiction.
  • Address the long-standing issue of services to First Nations children who are residing off-reserve, as well as non-status, Métis and Inuit children.
  • Provide clarity and direction on how the “Best Interests Of the Child” (BIOC) standard will be defined regarding the applicability of laws. At minimum this should clarify a standard for best interests of the Indigenous child— determined by Indigenous legal and community standards—and dictate the application of federal and provincial laws to Indigenous children.
  • Clearly and openly resolve the lack of funding for Indigenous law-making, administration and enforcement as well as funding for the preventative of child and family health.

Data Collecting and Reporting

  • Mandate collection and publication of data along the lines of TRC Call to Action #2
  • Address privacy issues by anonymized and displaying data in aggregate.