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B.C. Indigenous child agency appeals mom's $150K separation award

The Vancouver Aboriginal Child and Family Services Society says the B.C. Human Rights Tribunal overstepped its jurisdiction.
An Indigenous woman had her four children apprehended in August 2016 by the Vancouver Aboriginal Child and Family Services Society.

Vancouver Aboriginal Child and Family Services Society (VACFSS) is appealing a B.C. Human Rights Tribunal (BCHRT) ruling that awarded $150,000 to an Indigenous woman separated from her children.

“It is essential to request a judicial review because the BCHRT overstepped its jurisdiction in this decision,” VACFSS chair Linda Stiller said. “VACFSS regrets having to file a judicial appeal on this case, particularly as an Indigenous-led agency committed to restorative practice and the advancement of provisions in the Act respecting First Nations, Inuit and Métis children, youth and families.”

Tribunal member Devyn Cousineau’s Nov. 22 decision said the mother, identified as RR, had her four children apprehended in August 2016 by VACFSS.

The children, including one still breastfed, were taken to foster homes outside of Vancouver.

RR argued VACFSS based its decisions about her ability to parent on stereotypes about Indigenous single mothers and assumptions about her mental health and addictions. 

RR was raised by her mother and stepfather, both multi-generational survivors of the residential school system. Her first interaction with the child welfare system came when she was apprehended at five years old.

VACFSS executive director Bernadette Spence and Stiller said the tribunal decision would be reviewed.

Now, it has filed a judicial review petition in B.C. Supreme Court.

"We understand that this step is very difficult, but it is necessary to ensure Indigenous children are protected as intended by the legislation and our decision in no way reflects on the individual who filed the HRT complaint," Stiller said. “While we recognize the pain the complainant identified during the hearing, our duty is to ensure that children’s rights are also protected.”

The claims

RR, an Afro-Indigenous woman, claimed that, instead of supporting her and accommodating her needs, VACFSS separated and disconnected her from her children.

In her human rights complaint, RR alleged VACFSS's conduct was discrimination based on her race, ancestry, colour and mental disability, violating B.C.'s Human Rights Code.

Cousineau found that VACFSS did not have reasonable grounds to keep RR's children in its custody and that no discriminatory conduct could be justified as reasonably necessary to protect the children.

Failures of the system

In finding that VACFSS discriminated against RR, Cousineau said it failed in multiple ways to assist the mother and her children.

"VACFSS's decisions to retain custody and restrict RR's access to her children were informed by stereotypes about her as an Indigenous mother with mental health issues, including trauma, and her conflict with the child welfare system," Cousineau said. "Because of RR's Indigeneity and trauma, she had a heightened need to be empowered and included in decisions respecting her children and to have complete, ongoing, and accurate information about their well-being."

That didn't happen, Cousineau said.

"Instead, VACFSS responded to her with escalating assertions of power and control, reducing and suspending her access to the children, limiting her communication with their caregivers, and ultimately prolonging their time in care," she said.

"This is simply not true," Cousineau said. "In over 200 pages of supervised visit reports, there is no report of RR being intoxicated or impaired in a visit."

Grounds for review

VACFSS' application advances several grounds for judicial review:

  • that the matter was beyond the tribunal’s jurisdiction;
  • that it moved into provincial court territory;
  • the validity of legislation was impugned and not in the tribunal’s jurisdiction; and,
  • that the tribunal expanded the scope of the case without providing proper notice for the VACFSS in order to fully respond.

The tribunal decision echoed recent comments in a B.C. provincial court decision that suggested Canada's child welfare system is "the new residential schools."

In that ruling, Port Alberni provincial court Judge Alexander Wolf said a four-year-old Indigenous girl who had gone into care the day she was born should live with her Indigenous grandparents.