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B.C. Indigenous mom separated from kids awarded $150K in human rights decision

"It's a very stark and disturbing examination of what Indigenous mothers face in the child welfare system."
An Indigenous woman had her four children apprehended in August 2016 by the Vancouver Aboriginal Child and Family Services Society.

A woman separated from her children for three years by an Indigenous child welfare services has been awarded $150,000 by B.C.'s Human Rights Tribunal — the second-highest award ever, lawyers say.

According to the tribunal decision, the mother, identified as RR, had her four children apprehended in August 2016 by the Vancouver Aboriginal Child and Family Services Society (VACFSS).

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

"What this case highlights is a very serious double standard," said Aleem Bharmal, a lawyer at the Community Legal Assistance Society, who worked as co-counsel for the mother.

"It's a very stark and disturbing examination of what Indigenous mothers face in the child welfare system," he said. "The precedent it sets will reverberate across the country."

RR argued that 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.

"They had blinders on and weren't looking at who the mother really was and relied on stereotypes," said Bharmal.

He said that the children were put in dangerous foster care situations where one was abused and another attempted suicide. They were only eight years old.

"She told her foster parent and doctor that she thought it would bring her back to her mother faster," tribunal member Devyn Cousineau said in the decision.

A Nov. 23 statement by VACFSS executive director Bernadette Spence and board chair Linda Stiller said the tribunal decision is being reviewed.

They said "the focus of the decision was on the rights of the mother, while from VACFSS’ perspective, parental rights must be balanced with the well-being of children and our responsibility to care for and honour each child as a 'sacred bundle.'"

It called the tribunal situation a difficult process.

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

And, in finding 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.

Bharmal argued that VACFSS "seemed to be on a path from the get-go of keeping her children away from her."

Cousineau said RR was emotional but calm during the long and difficult hearing, which included disturbing things she had not known about her children's lives in government care.

"This stood in stark contrast to the claim by some of VACFSS's witnesses that RR was incapable of self-regulation for 'more than a few minutes,'" Cousineau said. "My own observation was to the contrary. On the whole, I have found RR's evidence to be trustworthy and have relied on it."

Cousineau called some of VACFSS's witnesses unreliable, saying one testified confidently about things that didn't happen. That testimony, Cousineau said, was "driven to paint RR in a negative light."

That same witness said RR "had been drinking a fair bit."

"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."

VACFSS response

The VACFSS statement said its mandate is closely tied to the social and historical context in which the complaint arose.

"VACFSS is an Indigenous-led response to the systemic failures of the child welfare system, which are part of the larger and ongoing story of colonialism in British Columbia," the statement said. "VACFSS recognizes the significant impact of child protection intervention on Indigenous families, including the family affected by this case. Every family that has received services from VACFSS has been impacted by the ongoing, intergenerational impacts of colonialism on Indigenous peoples."

It further said VACFSS prioritizes the least intrusive measures and alternatives to care to keep children safe and has implemented its own policies to change the trajectory for Indigenous children, youth and families to ensure their rights, safety, well-being and spirit are protected, honoured and upheld.

"Where children are required to be cared for outside of their home, our policies ensure that children remain connected with their parents, family members, community and culture," the statement said.

The organization noted the tribunal recognized VACFSS and its employees are dedicated to doing child protection work in a way that recognizes, and does not perpetuate, the discriminatory impacts of child welfare on Indigenous people. 

"VACFSS staff undertake immersive training and deliberately design policies to better understand and avoid the discriminatory failings of colonial child welfare," the statement said.

Governments interfered with Indigenous families

Cousineau said for generations, Canadian governments have interfered with the relationship between Indigenous caregivers and their children.

"Beginning in the 19th century, Indigenous children were forcibly removed from their communities and forced to attend residential 'schools,'" Cousineau said. "As residential schools closed, child welfare authorities took over, removing Indigenous children at disproportionate rates in the Sixties and Millennium Scoops. Today, Indigenous children remain over-represented and underserved in government care."

Those practices continue to the present day, she said.

"These patterns are reflected in the data about child and youth in government care. Between 2019 and 2021, Indigenous children comprised 66-67% of the children in care in B.C., despite representing less than 10% of B.C.'s child population," Cousineau said.

One witness in the case was Dr. Mary-Ellen Turpel-Lafond, B.C.'s first representative for children and youth. She was qualified as an expert to testify about the social and historical background of First Nations people interacting with the child welfare system.

"I was struck in this hearing by how closely the facts of this case replicated the broader trends explained by Dr. Turpel-Lafond as features of a child welfare system that is in many ways inherently harmful to Indigenous families, children, and communities because of their Indigeneity," Cousineau said.

Cousineau said VACFSS was created to fight for children in the face of colonial oppression, the first such organization in Canada.

"Its roots in Vancouver's urban Indigenous community, and significant efforts to mitigate or eliminate the discriminatory impacts of child welfare, are important and recognized," Cousineau said. "At the same time, it remains bound to apply provincial child welfare legislation."

The decision echoes recent comments in a recent 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.

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