Human rights tribunal fines Indigenous child-care agency $150K for discriminating against mother

The B.C. Human Rights Tribunal has awarded $150,000 to an Indigenous mother who lost access to all four of her children, in a scathing and "unprecedented" ruling against Canada's longest-serving Indigenous child-care agency.

In a decision released Wednesday, tribunal member Devyn Cousineau found the Vancouver Aboriginal Child and Family Services Society (VACFSS) based decisions about the woman's right to custody on "stereotypes about her as an Indigenous mother with mental health issues."

The award is the second-highest in the tribunal's history.

"This is an unprecedented complaint. It exposes systemic forces of discrimination and their profound impacts on an Indigenous mother," Cousineau wrote.

"In my view, it is a complaint that warrants an award at the highest end of human rights damages."

A cascade of conflict

The 151-page ruling details the involvement of the woman — known as RR — with both B.C.'s Child and Family Services Ministry and VACFSS, which only became involved in RR's case in April 2016, 13 years after the birth of her first child.

According to the decision, RR identifies as Afro-Indigenous, and was raised in the Pacific Northwest by a parents who were both multi-generational survivors of the residential school system.

She had her first child in 2003, when she was 20. The ministry became involved six days later, prompted — in part — by concerns about her history with drugs and alcohol.

The woman lost access to three of her children in 2013 but regained custody later that year. In 2014, she gave birth to a son who died of viral infections at the age of five months.

RR was absolved of any blame in the boy's death, but Cousineau noted that "lingering suspicion cast a shadow on her records with child welfare authorities" in the events that led to the complaint.

Activism seen as 'a direct threat'

According to the ruling, the incident that triggered a cascade of conflicts with VACFSS was a 2016 complaint from RR's oldest child, who claimed that RR "had physically assaulted her."

The teenager later retracted the allegation, but the resulting investigation led to the children being removed from her care and placed into foster homes.

In the years that followed, Cousineau said RR saw her visits with her children restricted and ultimately cut off as she tried to "understand and complete the steps that VACFSS wanted her to take to return the children."

The decision says the agency raised concerns about RR's decisions to speak on a radio show about child welfare and her plans to stage a rally, seeing her "activism as a direct threat to its operations and the safety of people accessing its services."

She was banned from the agency's office and lost access to her children altogether for six months in 2018, during which time she became homeless, police became involved, and RR took her case to the courts.

The woman was only reunited with her children in 2019 after an Indigenous court decision that saw the parties agree to temporary custody on conditions RR secure housing and that the family's file be transferred back to the Ministry of Child and Family Services.

'A lens of stereotype'

In reaching her decision, Cousineau said the evidence showed VACFSS did not have reasonable grounds to believe RR's children faced a likelihood of physical or emotional harm.

"Rather, the heart of this purported child protection concern was RR's conflict with VACFSS," the decision says.

Cousineau says the case highlights the impacts of colonialization on the child welfare system and "the profound power imbalance between caregivers, on the one hand, and the many people and professionals empowered to make or influence decisions about their children, on the other."

"This is what happened to RR. As I have said, VACFSS's records, and its evidence in this hearing, included numerous comments about RR that were derogatory and judgmental," Cousineau writes.

"In sum, I am satisfied that VACFSS did view RR through a lens of stereotype throughout the relevant period. This prevented VACFSS from assessing the actual needs of her children and led it to view RR as an adversary and threat."

The decision finds that RR's race and disabilities were a factor in the agency's decisions to continue custody.

"VACFSS relied on stereotypical assumptions to view RR's trauma, substance use, conflict with the child welfare system, and the intergenerational impacts of residential school, as risk factors for the children," the ruling says.

"RR's fears and distrust she harboured toward the child welfare system were based on her life experience as an Indigenous woman. This distrust was at the root of her conflict with VACFSS, and required a human rights response."

'Precedent ... will reverberate across the country'

Aleem Bharmal, who was co-counsel for RR, said the case "exposes the systemic forces of discrimination impacting Indigenous mothers."

"The decision is a victory for RR as an individual," Bharmal said. "But the precedent it sets will reverberate across the country."

VACFSS released a written statement Wednesday saying that it "recognizes the pain" RR has gone through and "the challenges her children faced due to their circumstances and history."

The statement says VACFSS is currently reviewing the decision, "but note[s] that 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 goes on to say that VACFSS already prioritizes policies and training for how best to serve Indigenous families, "but we will explore other learnings and continue to enhance and expand on our collaborative efforts and processes, including ongoing partnerships with First Nations communities across Canada."

According to the decision, VACFSS was founded by First Nations leaders to "stem the flow of Aboriginal children coming into government care" and offer an alternative to colonial child welfare.

"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 writes.

"At the same time, it remains bound to apply provincial child welfare legislation."

Bharmal says the agency was still operating under what he described as a "command and control system with its roots evolving from the residential care system."

"So, even when you have an agency that's supposed to be more attuned and aware of these issues, it can still fall subject to the same discriminatory and biased attitudes."