Child Welfare (1-5): Current Problems

Canadian Human Rights Tribunal


January 26, 2016


Fed. Govt.

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


Fed. Govt.

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


Fed. Govt.

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


April 4, 2022


External review of Indigenous Services Canada’s discriminatory policies against First Nations children

Regina Leader-Post: The work will happen as part of a $40-billion agreement-in-principle reached last December between the federal Liberal government and groups including the Assembly of First Nations, Chiefs of Ontario and lawyers for two related class-action lawsuits. The arrangement will see Ottawa pay $20 billion in compensation to First Nations children who were harmed by chronic underfunding of child and family services on-reserve. Another $20 billion has been earmarked to reform the system over the next five years, with some measures set to take effect as of Friday.

A public notice on the federal government’s procurement website says it has chosen the University of Ottawa to conduct the internal review…which will cost $750,000.

A spokeswoman says this is the first time a review will be done of the federal department since its creation in 2017 when Indigenous and Northern Affairs Canada was split into two departments: Indigenous Services Canada and Crown-Indigenous Relations.

“An expert advisory committee will guide the evaluation process and develop a work plan that will include actions to identify and redress internal departmental processes, procedures and practices to prevent any recurrence of discriminatory policies and procedures against First Nations children,” Jennifer Cooper wrote in a statement.

As for whether findings would be made public, she declined to say.

But Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada, which is among parties in discussions about long-term reforms, believes it must. “This is part of reconciliation,” she said. “It’s part of understanding why governments haven’t been able to implement the (Truth and Reconciliation Commission) calls to action, even though they adopted them on behalf of all Canadians. So I think it should be a public process. It should allow for public input.”

Indigenous Services Canada is responsible for servicing programs and infrastructure for those living on-reserve, as well as providing funding for health care and education.


October 29, 2021


Fed. Govt.

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.

April 6, 2022


Two Agreements-in Principle: Long-Term Reform to First Nations Child and Family Services Program and Jordan’s Principle

Assembly of First Nations: While the important work toward long-term reform of the FNCFS Program and proper implementation of Jordan’s Principle continues at the negotiation table, the AFN has also advocated for critical, immediate reforms implemented on April 1, 2022.

Beginning April 1, 2022, First Nations young adults reaching the age of majority while in care and those who aged out of care will be eligible to continue to access services until their 26th birthday. These services range from mental health supports to financial literacy, to nutrition and cooking classes. Funding for these services is designed to meet the individual needs of First Nations young adults and will be reimbursed at actual costs to First Nations and FNCFS providers.

Additionally, the Government of Canada has committed to assessing the resources required to support families and for young adults to navigate and access services for high-needs Jordan’s Principle recipients beyond the age of majority. This is to support youth who are transitioning into adulthood.

Also effective April 1, 2022 is enhanced funding for prevention activities and services to First Nations and delegated agencies based on a rate of $2,500 per person on-reserve. This new funding amount was determined through First Nations-led research as the total figure needed to provide prevention services and activities in a First Nation. This means that prevention funding will cover necessary programs for every individual living in First Nations communities, not just children and families identified as at-risk or already involved with FNCFS.

The Government of Canada will also fund ongoing research into a First Nations-led funding framework for FNCFS that emphasizes wholistic wellbeing. The funding framework is designed to support First Nations control over community wellness priorities. The results of this research will support First Nations in using their own data in order to make meaningful funding decisions. The Government of Canada will also fund research, data and needs assessments for First Nations not served by a FNCFS Agency, as well as Jordan’s Principle.

On March 24, 2022, the Canadian Human Rights Tribunal issued an order on consent of the Parties that outlines and affirms these immediate measures (2022 CHRT 8).

The AFN will be supporting engagement sessions on long-term reform at national and regional levels throughout 2022. These engagement sessions will provide First Nations with the opportunity to hear about long-term reform of the FNCFS Program and implementation of Jordan’s Principle and provide a venue to have their ideas, feedback and experiences heard.

The AFN will continue to advocate for a final settlement that reflects First Nations’ priorities and is based on First Nations-led research that addresses systemic discrimination, and supports First Nations children, families and communities to thrive.


January 4, 2022


Fed. Govt.

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.