When Indigenous parents feel they’ve been discriminated against by child protection workers, where should they seek justice?
This question forms the heart of a dispute that has worked its way up from the B.C. Human Rights Tribunal to the province’s highest court, where it was heard last week.
When the Court of Appeal releases its decision, it could have significant implications for Indigenous families and social workers.
“Either we’re going to limit or restrict human rights remedies to Indigenous parents, or we’re not,” said Métis lawyer Frances Rosner.
The case, heard over three days last week, follows years of various court actions involving the Vancouver Aboriginal Child and Family Services Society (VACFSS) and an Afro-Indigenous mother whom IndigiNews is identifying by the pseudonym Justine to protect the identities of her children.
After removing Justine’s daughters from her care in August 2016, VACFSS child protection workers discriminated against her, the B.C. Human Rights Tribunal ruled in 2022 — using stereotypes to justify keeping them apart.
The tribunal ordered VACFSS to pay her $150,000 — the tribunal’s second-highest award ever — as compensation “for injury to her dignity, feelings, and self-respect.”
But VACFSS appealed, and the B.C. Supreme Court Justice who reviewed the decision ruled the tribunal had made legal errors and failed to give VACFSS a fair shake. In January, he sent the case back to the tribunal for “further consideration.”
Justine then appealed that decision, leading the case to be rehashed by a panel of appellate judges — including the province’s Chief Justice — from Dec. 11 to 13.
“I’m really hoping for a Gladue-type analysis,” Rosner told IndigiNews on Dec. 19, referring to analysis courts can apply to take Indigenous people’s unique experiences into consideration. Rosner acted as co-counsel for Justine at the tribunal hearing but was not involved in her current appeal.
“Some sort of recognition that the over-representation crisis of Indigenous children in care and the over-involvement with Indigenous families is in fact rooted in systemic racism and discrimination against Indigenous Peoples.”
‘Lots of people would cave and just give up’
When Justine filed her complaint with the B.C. Human Rights Tribunal in August 2017, her four daughters were still in “care.”
The baby and the teenager were living in two separate foster homes, while the middle children were living together in a “staffed residence” after their foster placement broke down, where they endured “serious harm” including: “self-harm, inter-sibling violence, violence with staff, and the application of physical restraints,” according to the tribunal’s decision.
In 2018, VACFSS told the B.C. Provincial Court that social workers concerns included “alcohol misuse, inappropriate caregivers, physical and emotional abuse, extreme and excessive discipline, significant conflict between the children and their mother, relational problems, parentification … and very unrealistic expectations of the children.”
“You’re going to hear evidence from the social workers of hostility, lack of cooperation and often belligerent behaviour of the mother who projects all responsibility onto others,” VACFSS’s lawyer told the court.
While her children were in care, Justine had some access to them through supervised visits, but during the period covered by her human rights complaint, VACFSS reduced their length and duration. And for a period of about seven months, VACFSS totally cut off Justine’s access to the middle children, who were eight and six at the time.
In the summer of 2019, the girls were returned to Justine’s care, following an unconventional case conference at the end of a brutally long and emotionally-charged provincial court hearing.
Justine’s eldest daughter, May — not her real name — was 13 when she was taken into “care” by VACFSS. Now she’s 21.
On Dec. 13, she sat beside her mom in the appellate court.
“We have a very, very good relationship, very healthy,” May told IndigiNews outside the courthouse. “We talk almost every day. She’s become my best friend.”
May told IndigiNews a “lot of issues” between her and her mother stemmed from social workers separating them.
“Lots of people would cave and just give up; my mom stayed strong and true to herself, even when everyone was against her,” she said.
“Instead of separating families, they should try and push us together … and work with us to try and build stronger relationships with each other.”
Does the tribunal have jurisdiction in child protection cases?
At this case’s latest hearing, Chief Justice Leonard Marchand, Justice Peter Edelmann, and Justice Harvey Groberman heard arguments from Justine, VACFSS, B.C.’s Attorney General, the B.C. Human Rights Tribunal, and three intervenors.
Lawyer Claire Hunter acted for VACFSS. She said the tribunal had no business reviewing Justine’s complaint because the period under review was “bookended” by two provincial court orders — first a 2017 interim custody order Justine consented to, and second a 2019 temporary custody order drawn up by the court, which laid out a plan to gradually return the children to Justine’s full-time care.
Whatever happened between those two court orders, Hunter argued, was the court’s business — not the tribunal’s.
“The tribunal is not entitled to review what happens pursuant to a court order,” she said.
It’s ultimately in a parent’s best interest to bring discrimination complaints about child protection social workers to the provincial court, she told the panel of judges.
Justice Edelmann, freshly appointed to the Court of Appeal in October, asked Hunter what kind of remedies the provincial court can provide.
“There’s not the same remedy in terms of financial compensation,” Hunter said.
“The remedies that the provincial court could have offered during that time … are the most important and most immediate types of remedies in a case of this nature: Increased access, changes to access, they might have ordered that a different director be involved.”
Edelmann later attempted to clarify Hunter’s submission.
“Your position is that [Justine] had to choose either monetary damages for discrimination or relief in the provincial court — one or the other, you can’t have both?” he said.
Hunter responded, “These issues need to be raised at the earliest opportunity before the provincial court, in the child protection proceedings, where the most important remedies can be obtained.”
But this suggestion is “completely impractical,” countered Jonathan Blair, co-counsel for Justine alongside Danielle Sabelli.
“This human rights matter took 21 days, involved multiple interim decisions on expert evidence, disclosure, had multiple witnesses,” Blair said. “The provincial court is not set up to hear this, especially in proceedings under the [Child, Family and Community Service Act] which … need to be done in a timely manner.”
He said it would be a “disaster” for the court system if “every parent started filing a human rights complaint with the court during the proceeding.”
Both the tribunal and the provincial court have jurisdiction over child welfare, and they’re empowered to decide distinct legal issues, argued Maria Sokolova.
She acted for the B.C.’s Human Rights Commissioner, another intervenor.
“The tribunal, acting under the [Human Rights Code], may consider whether there has been discrimination in the provision of child welfare services,” she told the court. “It cannot make any child welfare orders for the apprehension or the return of children.”
On the other hand, Sokolova argued, a provincial court may decide issues of “custody and access” under the Child, Family and Community Service Act.
“It cannot make findings of discrimination or grant remedies under the Code,” she said.
Emma Ronsley, acting for West Coast LEAF, another intervenor, said it’s wrong to prohibit parents from seeking redress through the tribunal just because a court order is in play.
This would give social workers immunity, she warned, and cover “virtually all decision-making by child protection workers about custody and access because the director cannot take custody of the child without a court order.”
The court needs to “consider the UN Declaration on the Rights of Indigenous Peoples, which affirms the rights of Indigenous Peoples to be free from discrimination,” she said.
Did the tribunal give VACFSS a fair shot?
VACFSS’s lawyer told the court that the tribunal did not give it fair notice before it expanded the timeframe and the substance of the scope of Justine’s complaint.
They pointed to multiple times the tribunal said it wasn’t going to touch child protection matters under the provincial court’s purview, but then did, in their view.
For example, after the hearing concluded and before releasing its decision, the tribunal asked to see court orders from the period preceding Justine’s complaint. This wasn’t fair, VACFSS argued.
“There’s a defined complaint period, but you can’t look at that in a vacuum,” Marchand said. “She has to look at the context in which the children came to be in care, doesn’t she?”
Chantelle van Wiltenburg, co-counsel for VACFSS, countered, “But she shouldn’t be looking behind the court order that is responsive to that period of time.”
Edelmann tried to sum up VACFSS’s position.
“You’re saying that … the [tribunal] member is misleading [VACFSS] in saying, ‘I’m not going to go behind the court orders and anything that flows from them’ — and you understood that that included that she’s not going to look into any discretion that we exercised under the court order?”
Van Wiltenburg replied, “I think it was unclear what the case to meet was.”
Later, during closing submissions, Hunter reiterated that “It was not clear [to VACFSS] what it was about.”
Edelmann interjected.
“How do you go through a 21-day hearing not knowing what it’s about?” he asked. “Being misled, or thinking it’s about something else, sure.
“But like just, ‘We were confused and had no idea what it was about the entire time’? I just don’t understand how counsel does that.”
Hunter, who wasn’t representing VACFSS at the tribunal, cleared her throat.
“I wouldn’t put it quite that way,” she said. “I can’t tell you what was in counsel’s head. But what we see in the materials is a shift in the scope.”
Katherine Hardie insisted that the tribunal was clear about the scope of the complaint.
She acted for the Human Rights Tribunal at the Court of Appeal.
Justine’s complaint, she said, was about “VACFSS’s assessment of [Justine’s] ability to parent, which informed its decisions to continue to deny her custody and to place limits on her access to her children from April 2018 through December 2018.”
The tribunal reiterated this scope multiple times, she said — when it rejected VACFSS’s application to dismiss Justine’s complaint before hearing it, at the start of the hearing, and in its final decision.
Colonial context — to what extent is it relevant?
The Supreme Court found that the tribunal also erred by undermining the law governing social workers in “B.C.”
For example, in her decision, tribunal member Cousineau wrote, “The system created and regulated by the CFCSA – which VACFSS is bound to implement – is rooted in a Eurocentric approach to child welfare, heavily focused on a narrow assessment of risk.”
Hunter argued for VACFSS that the tribunal’s “attack on valid legislation, a valid legislative scheme and social workers acting pursuant to it” cannot be “countenanced.”
“There’s been lots of attacks on child protection legislation across the country from all kinds of angles,” said Marchand, who is syilx and a member of the Okanagan Indian Band.
“The Wrapping Our Ways report and the report of the Truth and Reconciliation Commission, and other academic writings. These aren’t new ideas … She’s writing about things that are in the public domain.”
Ronsley, intervening on behalf of West Coast LEAF, also pushed back against the idea that the tribunal went too far in its critique of the CFCSA.
“Neither the attorney general nor the [Supreme Court] judge has pointed to a single provision of the CFCSA that the tribunal’s decision purports to invalidate or question the validity of,” she said.
“The tribunal’s acknowledgement of the colonial roots of the child welfare system and the potential for systemic discrimination against Indigenous families in that system does not question the primacy of the objective of protecting children’s safety under the CFCSA.”
Lauren Witten, acting for “B.C.’s” attorney general, said that while systemic context is relevant and important, it matters what you do with it.
“There is a problem with starting the [discrimination] analysis from a view that the legislation is inherently problematic,” she said. “The member of a tribunal is required to give effect to valid legislative objectives.”
“What the member cannot do … is transform an individual complaint into a systemic one,” she said. “There may be a systemic complaint that can be brought, but that is, in our submission, a different complaint.”
VACFSS spending ‘an outstanding amount of money’ on this case
When the court broke for lunch on Dec. 12, Justine grabbed pizza with Flora Raynes.
Raynes is Secwépemc from the Bonaparte Band in Cache Creek. She told IndigiNews that she was removed from her mother’s care when she was nine, and she stayed in “care” until she “aged out.”
“I’ve been having contact with [Justine] throughout the whole process, periodically, from the time the children were apprehended, to the time that she was refused access, to the time when she fought to get access again,” said Raynes, a member of the Indigenous Women Rise Society.
“I came to honour [Justine’s] strength and to encourage other women who have similar challenges to keep it together and to put in supports around themselves, so that they can rise above the system and embrace their children once again in their home.”
Justine was also in “care” as a child. She told IndigiNews on Dec. 17 that while “there’s still a lot of hurt,” she’s heartened “to see the justice that’s taking place.”
She said it was important to her to attend the hearing because she wanted the judges “to put a face to the names and the people.”
Two thirds of all children and Youth in “care” in the province are Indigenous, according to the most recent provincial data — despite the fact that Indigenous people account for just 6 per cent of the province’s total population.
In “Canada,” Indigenous kids represent more than half of all children in care, despite accounting for just 7.7 per cent of the total population of kids under 14.
The Truth and Reconciliation Commission concluded in its final report that this overrepresentation is rooted in the “intractable legacies of residential schools, including poverty, addictions, and domestic and sexual violence” — as well as “racist attitudes that considered Aboriginal families as being frequently unfit to care for their children.”
Residential “school” and Sixties Scoop experiences “adversely affected parenting skills and the success of many Aboriginal families,” wrote the commission in its 2015 report.
“These factors, combined with prejudicial attitudes towards Aboriginal parenting skills and a tendency to see Aboriginal poverty as a symptom of neglect, rather than as a consequence of failed government policies, have resulted in grossly disproportionate rates of child apprehension among Aboriginal people.”
Outside the Court of Appeal, May said she feels like “this doesn’t happen” to her friends “with happy parents and normal families.”
“They don’t get separated and picked on. I feel like it’s very weak families and families that have been through a lot, which is mostly Indigenous families … It’s not right.”
Blair, one of Justine’s lawyers, said this case “fundamentally is about redress to an Indigenous mother who suffered discriminatory mistreatment at the hands of specific child protection workers.”
“The [tribunal’s] decision was groundbreaking in the sense of how it recognized that. But in the end it’s about redress for the complainant for what she suffered,” he told IndigiNews on Dec. 16.
Sabelli added that if VACFSS’s position succeeds, that would be “completely incompatible with the efforts made by the legal system toward reconciliation.”
The two lawyers would be “very willing” to assist Justine in appealing to the Supreme Court of Canada if they don’t win, Blair said.
He added that he wonders whether VACFSS would appeal if it lost.
“It is an outstanding amount of money they are spending on this case. Their lawyers are very, very good … I don’t know how it’s being paid for, but that’s not cheap.”
IndigiNews reached out to VACFSS and the B.C. Attorney General to ask where the money for their legal representation is coming from, and how much has been spent to date on this case.
“Any information about litigation costs is subject to solicitor-client privilege and will not be disclosed,” replied a spokesperson for the attorney general, via email on Dec. 17.
“We are unable to comment on this matter as it is currently before the court.”
IndigiNews asked the attorney general whether the office could at least confirm whether VACFSS’s legal costs are coming out of the public purse.
“Unfortunately, we can provide no further comment,” the office wrote. “Contact VACFSS directly and you may be able to get what you’re looking for that way.”
IndigiNews asked VACFSS multiple times to comment about the money — or anything else. It declined.
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