Child welfare agency tells court that tribunal ‘exceeded its jurisdiction’ in landmark ruling, which found VACFSS social workers relied on racist stereotypes
Content warning: This story deals with child apprehension and discrimination against an Indigenous mother. Please look after your spirit and read with care.
First Peoples Law Report: An Afro-Indigenous mother sat quietly in a “Vancouver” courtroom last week as 14 lawyers argued about whether a tribunal decision that found social workers discriminated against her should be upheld.
About this same time last year, “Justine” was celebrating a landmark B.C. Human Rights Tribunal ruling, which ordered the agency that took her daughters and put them in “care” to pay her $150,000 “as compensation for injury to her dignity, feelings, and self-respect.”
Now, the Vancouver Aboriginal Child and Family Services Society (VACFSS) is asking B.C. Supreme Court Justice Geoffrey Gomery to toss that decision out. The tribunal’s decision “jeopardizes the safety of Indigenous children by undermining the provincial court’s jurisdiction over child protection matters,” VACFSS told the court during a five-day judicial review between Oct. 30 and Nov. 3. The tribunal’s process wasn’t fair and its decision will have a “chilling effect” on social workers, the agency said.
This hearing marked the latest development in a years-long battle between Justine and the child “welfare” system that’s consumed a staggering amount of energy and public resources.
Outside the courtroom on Nov. 2, Justine — whose real name is being protected by a publication ban — told IndigiNews she never expected her complaint to go this far. “It’s bringing up a lot of really good questions about how much power social workers have,” she said.
The case is being watched with interest by Indigenous leaders because of the far-reaching effects it could have on social work practice and Indigenous families. The Union of BC Indian Chiefs was one of several high-profile interveners in last week’s review.
“UBCIC sees this judicial review as part of a decades-long battle for accountability of child apprehension authorities, principally [the Ministry of Children and Family Development], that are responsible for decades of racialized inequity,” UBCIC submitted.
‘VACFSS relied on stereotypical assumptions’
Justine’s four daughters were placed in three different foster homes in 2016 by VACFSS social workers who said they were concerned about the children’s physical and emotional safety after receiving a report from Justine’s teenager and interviewing her younger girls.
She spent nearly three years fighting to get them back through the Provincial Court of British Columbia — which has a mandate under the Child, Family and Community Services Act (CFCSA) to deal with child protection cases.
In 2017, while her girls were still in “care,” Justine launched a discrimination complaint against VACFSS. The tribunal agreed to hear her case, and five years later, after a 21-day hearing, it ruled in Justine’s favour. If the decision is upheld, the payout ordered from VACFSS will be the second-highest award in the tribunal’s history.
Tribunal member Devyn Cousineau found that “VACFSS relied on stereotypical assumptions to view [Justine’s] trauma, substance use, conflict with the child welfare system, and the intergenerational impacts of residential school, as risk factors for the children.”
“I am satisfied that [Justine’s] Indigeneity and disabilities were a factor in the adverse impacts she experienced, including VACFSS’s decisions to continue custody over her children, reduce and suspend her access to them, and exclude her from important parts of their lives,” Cousineau wrote.
Ultimately, she concluded that “VACFSS did not have reasonable grounds to continue custody.”
The tribunal introduced a ‘parallel proceeding’
However, VACFSS told the supreme court that the tribunal should never have agreed to hear Justine’s case. Justine’s concerns about the social workers should have been dealt with in provincial court, where she was already fighting for custody and access to her kids, VACFSS argued.
The provincial court has a “clear and exclusive grant of jurisdiction” over child protection matters under the CFCSA, the agency submitted — while the tribunal “has no institutional expertise in child protection.”
“There is only one appropriate forum. There was only one right answer,” VACFSS’s lawyer Claire Hunter told the court on Nov. 30. Instead of respecting its jurisdiction, VACFSS argued, the tribunal introduced a “parallel proceeding” — and this is apparently what prompted the attorney general’s participation in this review.
The attorney general said they wanted “to assist the court in clarifying the proper boundaries between the tribunal and the courts … to avoid confusion about the appropriate avenues for challenging child protection decisions and to ensure that vulnerable children are protected from harm in accordance with the CFCSA.”
“The tribunal does not have jurisdiction to decide substantive child protection issues as part of a human rights complaint,” the attorney general submitted. “Those matters are appropriately determined under the CFCSA through provincial court processes.”
‘Cards are stacked against the parents’
Justine was represented at the judicial review by Jonathan Blair and Danielle Sabelli. They work for the nonprofit law firm CLAS. In a phone interview with IndigiNews on Nov. 6, Blair said they couldn’t find “a single case in all of B.C. history of the provincial court addressing a human rights code complaint in the midst of a child welfare proceeding under the CFCSA.”
It’s hard to imagine how the court would deal with both issues at the same time, he said. “The director in a family matter has to prove their case… and [Justine] would get the opportunity to respond. But in a human rights complaint, [Justine] would have to prove discrimination and the director would get the opportunity to respond.”
The process is “very not clear and goes to show why it’s never been done,” he said.
The provincial court also isn’t “equipped to provide an injury to dignity award,” Sabelli told the B.C. Supreme Court. “The remedy that [Justine] was seeking from the [B.C. Human Rights Code] is very unique to the code.” “Access to those remedies is of critical importance,” said Lindsay Waddell, who intervened on behalf of B.C.’s Office of the Human Rights Commissioner. “The tribunal is an expert in making that determination.”
VACFSS argued that while “the provincial court cannot order financial compensation … it can issue remedies that are more effective and timely, such as ordering the return of the children where the court finds a removal to be discriminatory.”
For example, parents can challenge an apprehension at a presentation hearing (which is supposed to happen within seven days of the apprehension) or appeal a custody determination,” VACFSS wrote. “That’s sort of nonsense,” said Frances Rosner, a Métis family law lawyer who acted as co-counsel for Justine during the tribunal proceedings. She attended some of last week’s judicial review.
“The cards are stacked against the parents,” she told IndigiNews. “The threshold at removal is extremely low … and any conflict in the evidence must be decided in favour of the director.”
If someone disputes, it could also mean being separated from their kids for a much longer time, she added, because it could take months for the court to hear the case. And when it comes to appealing custody decisions, she asked, who’s going to pay for that?
“I’m speaking on behalf of the Indigenous families that I’ve acted for — very vulnerable, marginalized, sometimes [they] have disabilities. Therefore [they’re] not well suited to self-represent in a judicial review. It’s absurd to even suggest that,” she said.
Indigenous families are grossly overrepresented in child “welfare” systems across the country, continuing the harmful colonial tradition of removing Indigenous children from their families. In “B.C.,” Indigenous children represent just over two-thirds of all kids in care, despite the fact that just 10 per cent of the total population of kids under 14 in the province are Indigenous.
This systemic context is “fundamentally relevant to both the analysis of the facts … and to the way in which the Code and the CFCSA are interpreted and applied,” said Robin Gage. Gage intervened on behalf of West Coast LEAF, a non-profit organization that uses legal strategies to address gender-based discrimination and inequities.
Rosner said she’s tried to raise broader concerns about racism and discrimination when she represents Indigenous parents in provincial court — to little effect. “I don’t find that much attention gets paid to these issues because the court’s primary task under the CFCSA is to determine whether the children are in need of protection,” Rosner said. But if social workers’ decisions are informed by racist assumptions “it’s going to lead to harmful outcomes for children.”
Jason Gratl echoed something similar to the court on Nov. 3, when he intervened on behalf of the Union of BC Indian Chiefs. If social workers rely on stereotypes to assess risk, “not only do they harm the parent, but they harm the child by unnecessarily alienating the child from the parent.”
‘Impossible situations for social workers’
In the attorney general’s submissions, they argued that “human rights and child protection proceedings employ different standards.” This tension “may create impossible situations for social workers.”
According to the attorney general, the tribunal’s decision imposes a new third-party substantiation requirement that will interfere with the preventative and time-sensitive nature of their work.” Social workers will have “to choose between liability in negligence (for failure to remove) or liability under the Code (for failure to ensure ‘substantiation’ before acting),” the attorney general wrote.
But Justine’s lawyers called this framing “a diversion.”
“VACFSS’s approach is to portray this matter as a conflict of competing interests: parental interests versus the best interests of the child,” they submitted. “Acting in a non-discriminatory manner and prioritizing the best interests of the child are not irreconcilable duties.” “The function of the code is to create that pause in social workers to think about, ‘Why am I making this decision? What am I basing this decision on?’” Sabelli told the court on Nov. 2.
“It causes them to be more reflective of their own internal biases and stereotypes and … then it also holds them accountable for when they do discriminate.”
This check against social workers’ discretionary power is critical, said Gage, who represented West Coast LEAF. “The exercise of discretion with respect to custody and access is precisely the area that needs protection the most. It is the most prevalent of the kinds of discrimination experienced in this context, and it is the most harmful.”
Attorney general is bringing the ‘administration of justice into disrepute’: lawyers
Jurisdictional overstep and a chilling effect weren’t the only concerns raised in this judicial review. VACFSS also argued, for example, that the tribunal didn’t facilitate a fair proceeding, failing to clarify the timeframe at issue and impeding VACFSS’s ability to prepare its case.
Justice Gomery had to schedule more time on Nov. 24 to finish hearing the case. “This is a very complicated judicial review,” Blair said over the phone. “I don’t think I’ve ever even heard of a judicial review that’s gone for more than five days before.”
Given the “ginormous amount of material,” he said he wouldn’t be surprised if it takes eight months to get a decision. “I do think it’s not over … if we are successful, both the [attorney general] and VACFSS will have their own independent rights of appeal.”
Justine’s lawyers took issue with the attorney general’s decision to get involved in this case.
The attorney general’s participation “brings the administration of justice into disrepute by calling into question their supposedly neutral role as guardians of the public interest, which includes protecting vulnerable groups against discrimination and working toward reconciliation,” they told the court.
IndigiNews asked the attorney general for an interview. In an email on Nov. 6, a spokesperson wrote, “It would be inappropriate to provide comment as the matter remains before the courts.”
VACFSS’s executive director Bernadette Spence also declined to comment.
Outside the court, Justine told IndigiNews that if she isn’t successful, she plans to appeal. She said she’s pushing “to make changes within the system… so [social workers] work better with the parents, and they’re not just policing us, they’re supporting us.”
Brielle is a white, cisgender woman, a mama and a journalist who’s passionate about sharing power and working with community members to report on the so-called child-welfare system. She lives on the unceded lands of the xʷməθkwəy̓əm, Skwxwú7mesh, and Səl̓ílwətaɬ nations.