Current Reality

The number one issue in Child Welfare is the overrepresentation of Indigenous children in care. The most recent data from a national perspective is from the 2016 Census published by StatsCan. All other issues flow from the following fact:

Progress on reducing the overrepresentation of Indigenous children in care can be viewed through three distinct lenses:

Federal Actions:

  • July 7, 2020 – Government and Assembly of First Nations have signed a Protocol confirming First Nations distinctions-based approach to implementing the Indigenous Child Welfare Act
  • Feb. 12, 2020, The Assembly of First Nations (AFN) has filed a federal class action lawsuit to seek damages and justice for the thousands of First Nations children and families that have been discriminated against by Canada’s child welfare system that incentivized the removal of First Nation children from their families and Nations.
  • June 21, 2019 – “Bill C-92 An Act respecting First Nations, Inuit and Métis children, youth and families received Royal assent. Co-developed with Indigenous partners, Bill C-92 affirms Indigenous peoples’ inherent right to exercise jurisdiction over child and family services.

Provincial Actions

  • July 29, 2020 – As of Oct. 15, 2020 Ontario will no longer issue Birth Alerts to apprehend Indigenous babies along with Manitoba (June 30, 2020) and BC (Sept. 16, 2019). For the first time no provinces will issue Birth Alerts
  • Dec. 19, 2019 – Quebec Government has launched a legal challenge in Quebec Court of Appeal to assess the constitutionality of Bill C-92: An Act Respecting First Nations, Métis and Inuit Children, Youth and Families. The Quebec and Labrador Regional Chief of the Assembly of First Nations, Ghislain Picard, called Quebec’s move “shameful” and “unacceptable.” “Defending its so-called jurisdiction is one thing but doing it on the back of our children is another,” said Picard at the time of Quebec’s announcement.

Canadian Human Rights Tribunal

  • June 1, 2020 – The latest Canadian Human Rights Tribunal (CHRT) ruling provides clarification on the following definitions regarding Jordan’s Principle: essential service, service gap and unreasonable delay.
  • April 16, 2020 – CHRT provides further clarity on compensation for First Nations children unnecessarily apprehended or denied essential Jordan’s Principal services. The Tribunal agreed with the AFN’s – and FNCFCS – submission that:
    • victims should be able to access compensation at the age of territorial or provincial majority;
    • that compensation should be available to children who entered care before January 1, 2006, but remained in care as of that date;
    • and compensation should be paid to estates of deceased individuals who would have been eligible.
  • Nov. 29, 2019 – Federal Government has asked for a judicial review of the CHRT compensation decision
  • Sept. 6, 2019 – Canadian Human Rights Tribunal (CHRT) awarded $2M in damages to First Nations children apprehended by child welfare authorities on or after Jan. 1, 2006 as well as to those denied essential services as per Jordan’s Principle.

Calls to Action

There are five Child Welfare Calls to Action. To find out more about each Call to Action, including government responses and progress to date, visit the links below.

Call to Action #1Commit to reducing the number of Aboriginal children in care
Call to Action #2Publish annual child welfare reports: Indigenous vs non-Indigenous
Call to Action #3Fully implement Jordan’s Principle
Call to Action #4Enact Indigenous Child Welfare legislation
Call to Action #5Develop culturally appropriate parenting program for Indigenous families

Current Problems and Issues in Child Welfare

Failure of Government of Newfoundland and Labrador to respond to Child Advocate report on Inuit children in child welfare

June 15, 2020 – Office of the Child and Youth Advocate Newfoundland and Labrador issued a Statement of Concern – Unacceptable Delay in Establishing Inquiry for Innu Children in the Child Protection System. The Innu are still waiting three years after the Provincial Government made a commitment to establish a formal Inquiry into the treatment of Innu children in the child welfare system.

The report contained 33 recommendations and was entitled ‘A Long Wait for Change.’ The title was carefully chosen and reflected the extraordinary and unacceptable amount of time for changes to be made for these vulnerable children. In part, the report documented decades of work to identify issues and recommendations for Indigenous children and their families and communities, and which included various Inquiries, Commissions, legislation, and reviews. It is troubling that many of my findings were neither new nor unique to this province. However, it put many issues in one place, and in a local context.

Government of Manitoba continues to use Birth Alerts to apprehend Indigenous babies

March 31, 2020: APTN – Government to delay the cancellation of its plan to end birth alerts due to COVID-19. A Manitoba government spokesperson said the supports that were planned to help new moms –including public health nurses – were instead being deployed to help respond to the pandemic. Ninety per cent of the 10,000 to 11,000 children of all ages in the child welfare system in Manitoba are Indigenous.

“From 2005 to 2019, approximately $338 million dollars of the Child Special Allowance (CSA) funds meant for First Nations children in care were stolen by the provincial government. This is an illegal action. We have a government trying to justify their actions, wiping their hands clean from the claw backs of the CSA by protecting themselves from any legal recourse through Bill 34,” stated Chief Karen Batson of Pine Creek First Nation. ”This is a human rights violation and is another example of how the provincial government has neglected children in care in the past, present, and now future,” concluded Chief Batson.

Manitoba Keewatinowi Okimakanak Inc. (MKO), the Manitoba Metis Federation (MMF) and the Southern Chiefs’ Organization (SCO) are particularly concerned by section 8, “which sets out to legally end the ability of current and former children in care to sue the Manitoba government for clawing back their monthly Children’s Special Allowance (CSA).

June 15, 2020 CTV News – The Province of Manitoba has announced it will end the controversial practice of birth alerts on June 30, 2020 and will instead refer vulnerable mothers and their children to social services and programs. Under the new system, Stefanson said Manitoba Child and Family Services (CFS) agencies will now be able to refer more women to programs, which will allow for the shift away from the birth alerts. The province announced it is investing $400,000 to double the capacity of the Mount Carmel Clinic’s Mothering Project (Manito Ikwe Kagiikwe) which helps connect vulnerable mothers with services and programs to support health and wellness for themselves and their children.

Quebec First Nation’s brief to Laurent Commission affirming First Nations right to look after their own children

Feb. 12, 2020 – The Assembly of First Nations Quebec-Labrador (AFNQL) and the First Nations of Quebec and Labrador Health and Social Services Commission (FNQLHSSC) presented a joint brief to the Laurent Commission (Special Commission on the Rights of Children and Youth Protection) aimed in particular at reaffirming the rights of First Nations to decide on the future and education of their children. The two organizations made recommendations that affect Act C-92, Bill 31, which aims to authorize the communication of personal information concerning certain missing or deceased Aboriginal children to their families, and the Youth Protection Act (YPA). The AFNQL and the FNQLHSSC have reiterated their constitutional right to manage family support and youth protection services, according to Act C-92, and are asking the Government of Quebec to withdraw its dispute and negotiate coordination agreements in good faith with First Nations governments and Canada. With regard to the YPA, they are also calling for:

  • Indigenous children to be exempted from the application of the maximum periods of foster care and
  • that the regulation on financial assistance to promote the adoption and tutorship of a child be amended.

More generally, the two organizations recommend that Quebec implement measures that respond appropriately to the calls for justice of the “National Inquiry into Missing and Murdered Indigenous Women and Girls” and the calls to action of the “Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec“.

Manitoba Governments clawback of the federal Child Special Benefit (CSA) from First Nations

April 14, 2020 – Assembly of Manitoba Chiefs are seriously concerned about Manitoba fast tracking Bill 34, “The Budget Implementation and Tax Statutes Amendment Act“. If passed, the Bill will have serious implications on First Nations children in care. On March 19, 2020 the Manitoba government introduced Bill 34. The Bill is currently seeking to legalize Manitoba’s actions of recovering the Child Special Allowance since January 1, 2005, when they started taking the child tax credit away. In 2018, a class action lawsuit was filed on behalf of the off -reserve children who had their CSA’s clawed back. A trial date is set for this September. But if Bill 34 passes by September the Manitoba government would not be held responsible for their actions and the lawsuit would be invalid.

“From 2005 to 2019, approximately $338 million dollars of the Child Special Allowance (CSA) funds meant for First Nations children in care were stolen by the provincial government. This is an illegal action. We have a government trying to justify their actions, wiping their hands clean from the claw backs of the CSA by protecting themselves from any legal recourse through Bill 34,” stated Chief Karen Batson of Pine Creek First Nation. ”This is a human rights violation and is another example of how the provincial government has neglected children in care in the past, present, and now future,” concluded Chief Batson.

Manitoba Keewatinowi Okimakanak Inc. (MKO), the Manitoba Metis Federation (MMF) and the Southern Chiefs’ Organization (SCO) are particularly concerned by section 8, “which sets out to legally end the ability of current and former children in care to sue the Manitoba government for clawing back their monthly Children’s Special Allowance (CSA).

Government of Quebec’s request that the Quebec Court of Appeal rule on the constitutionality of Bill C-92: The Child Welfare Act.

Dec. 20, 2019 – 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.

Feb. 12, 2020 – The Assembly of First Nations Quebec-Labrador (AFNQL) and the First Nations of Quebec and Labrador Health and Social Services Commission (FNQLHSSC) presented a joint brief to the Laurent Commission (Special Commission on the Rights of Children and Youth Protection) aimed in particular at reaffirming the rights of First Nations to decide on the future and education of their children. The two organizations made recommendations that affect Act C-92, Bill 31, which aims to authorize the communication of personal information concerning certain missing or deceased Aboriginal children to their families, and the Youth Protection Act (YPA). The AFNQL and the FNQLHSSC have reiterated their constitutional right to manage family support and youth protection services, according to Act C-92, and are asking the Government of Quebec to withdraw its dispute and negotiate coordination agreements in good faith with First Nations governments and Canada. With regard to the YPA, they are also calling for:

  • Indigenous children to be exempted from the application of the maximum periods of foster care and
  • that the regulation on financial assistance to promote the adoption and tutorship of a child be amended.

More generally, the two organizations recommend that Quebec implement measures that respond appropriately to the calls for justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls and the calls to action of the Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec.

City of Montreal and Batshaw Youth and Family Centre  for chronic “institutional” issues in Indigenous child welfare

Nov. 19, 2019 – (APTN): Release of “One Step Forward, Two Steps Back: Child Welfare Services for indigenous clientele living in Montreal” presents a scathing analysis of Indigenous youth care in the Montreal area. Assembled over three years by stakeholders from the Native Women’s Shelter of Montreal, Concordia University, Rising Sun Daycare, and the Youth Department of the public health network, Centre Integre Universitaire de Sante et de Services Sociaux Ouest de l’ile de Montreal (CIUSSS-ODIM), the goal of the project was to “gain a better understanding of the ways Indigenous children and families are responded to by the child welfare system in Montreal.” Some of the issues identified in the report include:

  • Children from Nunavik were told to stop speaking in Inuktitut
  • all Inuit children were placed with non-Indigenous foster families
  • apprehended children wished to remain in contact with their family but were denied access by social workers or foster families.
  • Children removed from home are not offered any emotional support and siblings are often denied contact or access to each other
  • Foster families lack of knowledge and sensitization has resulted in racist comments and prejudice towards the children’s parents

At the time of the report’s publication, Batshaw “did not employ any Indigenous people.” Of the health network’s estimated 10,000 employees, there are less than 10 Indigenous employees. Even the network’s sole “Indigenous liaison” is non-Indigenous.

The “One Step Forward, Two Steps Back” report identifies 22 Recommendations under the following themes:

  • Education for Non-Indigenous Staff, Leaders and Decision-Makers (3 aligned with 8 Viens Commission Calls for Action)
  • Representations (7 aligned with 4 Viens Commission Calls to Action)
  • Policy Level Changes (12 aligned with 10 Viens Commission Calls to Action)

CIUSSS-ODIM is to deliver an annual progress report with the first report due in Dec 15, 2020

.https://aptnnews.ca/wp-content/uploads/2019/11/One-step-forward-two-steps-back-_FINAL-REPORT-2019.pdf

Federal Government for asking for a Judicial Review of Canadian Human Rights Commission Tribunal damages award

Oct. 6 2019 – The federal government has asked for a judicial review of the Canadian Human Rights Tribunal (CHRT) decision to award $2B in damages to approximately 53,000 Indigenous children and youth wrongly removed or denied essential services. The CHRT panel found that the government racially discriminated against First Nations children in care in a willful and reckless manner. As a result, the CHRT ordered Canada to pay the maximum amount allowable under the Canadian Human Rights Act.

The government could have addressed the broken system and the funding inequalities before, but they didn’t. To appeal this CHRT ruling, which was meant to provide a measure of justice for First Nations children in care, is hurtful and unjust.” AFN National Chief Perry Bellegarde.

The CHRT has issued eight compliance orders against Canada since its original ruling in January 2016. The CHRT has extended the date for the parties to determine how to deliver payments to Feb. 21, 2020.

Sept. 6, 2019 – Canadian Human Rights Tribunal Citation: 2019 CHRT39, File No.: T1340/7008  We believe that the Creator has entrusted us with the sacred responsibility to raise our families…for we realize healthy families are the foundation of strong and healthy communities. The future of our communities lies with our children, who need to be nurtured within their families and communities. (see 1996 report of the Royal Commission on Aboriginal Peoples (RCAP), Gathering strength, vol. 3, p. 10 part of the Tribunal’s evidence record). Children hold a special place in Aboriginal cultures (…) They must be protected from harm (…). They bring a purity of vision to the world that can teach their elders. They carry within them the gifts that manifest themselves as they become teachers, mothers, hunters, councillors, artisans and visionaries. They renew the strength of the family, clan and village and make the elders young again with their joyful presence. Failure to care for these gifts bestowed on the family, and to protect children from the betrayal of others, is perhaps the greatest shame that can befall an Aboriginal family. It is a shame that countless Aboriginal families have experienced, some of them repeatedly over generations. (see RCAP, Gathering strength vol. 3. p. 21

Federal Government and Government of Ontario – Deaths of Indigenous children in care

Sept. 25, 2019 – 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:

  •  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: 

  • 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. 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. 
  • 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. 
  • 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: 

Use of birth alerts in Manitoba to apprehend babies where approximately 90% of child welfare apprehensions are Indigenous

Mar. 28, 2020 – Manitoba Families Minister Heather Stephanson announced that there will be a delay in ending the controversial Birth Alert practice due to COVID-19. On Jan. 31, 2020, the government had announced that child welfare and public health systems in Manitoba will no longer issue birth alerts for high-risk expectant mothers as of April 1, 2020. In Manitoba, 282 infants under four days old were taken into care in 2017-2018. Roughly 90 per cent of children in care in Manitoba are Indigenous.

The Southern Chiefs’ Organization (SCO) Grand Chief Jerry Daniels stated: ”Today, I stand with our southern First Nation CFS service providers as we turn the page and begin to implement a culturally-appropriate alternative to Manitoba’s Birth Alert practice, beginning on April 1, 2020.” In September of 2019, the SCO Chiefs-in-Summit issued a Directive to the Southern First Nations Network of Care (SFNNC) to develop a culturally-appropriate and safe alternative to Manitoba’s Birth Alert practice.

Feb. 4, 2020 – Saskatchewan still issues birth alerts but the practice is under review. (CBC)

Government of Manitoba for refusing to meet indigenous Leadership Council to review Child Welfare Block Funding changes

Feb. 22, 2019 – The government of Manitoba met with the Indigenous Leadership Council (Manitoba Metis Federation, Southern Chiefs’ Organization and Manitoba Keewatinowi Okimakanak) for first time in over two years despite a previous commitment to meet every quarter. The heads of the Indigenous Leadership Council met again with Minister of Families Heather Stefanson on Apr. 3, 2019 over concerns with the province’s block funding for child welfare that is still based on the old funding formula that rewards removing children from homes. There is no room in this block funding for prevention, no support to keep our families together. Right now, the proposed changes amount to $41.66 a month or a $1.39 per day for each child. Manitoba Metis Federation President David Chartrand

By relying on the federal Children’s Special Allowance (CSA) program to offset maintenance costs, the province is forcing our children to pay for their own care.” Under the federal government, the Children’s Special Allowance program is administered on a per-child basis and is equivalent to the combined maximum of the Canada Child Benefit (CBA) and Child Disability Benefit (CDB). These payments are meant for children in care. However, Manitoba is reducing child maintenance against the CSA funding. The Indigenous Leadership Council stands united in the fight for our children and families.”

Quebec Government, Ministry of Health and Social Services and Ministry Delegate for Health and Social Services for lack of progress on recommendations on child and youth protection services in Nunavik

Mar. 25, 2019 – The Commission des droits de la personne et des droits de la jeunesse raised concerns about the lack of progress on the implementation of recommendations from their 2007 report on child and youth protection services in Nunavik, a follow-up report in 2010, in 2014 and again in 2016. In March 2018, the Commission presented these findings to the “Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec: listening, reconciliation and progress“. (The Viens Commission)

“The Commission reiterates the urgency to act in order to create favourable conditions for these communities so they can finally ensure real protection for their rights through the implementation of concrete support measures, in particular by allocating sufficient resources to solve urgent problems related to housing, education, drug addiction and access to health and social services in the field of youth protection.”
Philippe-André Tessier, President, The Commission des droits de la personne et des droits de la jeunesse

Federal Government – Issues with “Bill C-92, An Act respecting First Nations, Métis and Inuit children, youth and families

March 21, 2019 – “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 (See also

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. 

Call to Action Status Updates

For an updated summary of the TRC Calls to Action, including all Child Welfare Calls to Action, click here (PDF 205 KB).