Brielle Morgan, Local Journalism Initiative Reporter, IndigiNews

An Afro-Indigenous mother who’s been going head-to-head with the child welfare agency that took her kids away says she feels heard after the province’s highest court sided with her.

The B.C. Court of Appeal delivered a ruling in the case last week, declaring that there’s no place for stereotypes in child protection work and social workers don’t have license to discriminate.

Justine — whom IndigiNews is identifying with a pseudonym to protect her children’s privacy — is an intergenerational survivor of residential “school” and the child welfare system. In 2016, social workers with Vancouver Aboriginal Child and Family Services Society (VACFSS) seized Justine’s children. (After a lengthy legal battle, the children were returned to her care in 2019). 

When Justine received news of the May 8 ruling from her lawyer, she said she got goosebumps.

“For me to be not believed for so long, and then to be able to bring my story to light is huge,” she told IndigiNews. “The world gets to see how some of these workers are behind closed doors.”

She said she believes this ruling will “definitely help other families.”

‘An unprecedented complaint’

Last week’s decision marks the latest development in a years-long legal battle between VACFSS and Justine. The case could impact future decisions impacting Indigenous families involved with the child welfare system. 

“Discrimination, whether obvious or insidious, cannot justify the decision to deprive a parent of their child,” Chief Justice Leonard Marchand wrote on behalf of a three-judge panel.

In 2022, after a lengthy hearing, the B.C. Human Rights Tribunal found VACFSS had discriminated against Justine, using racial stereotypes to justify decisions that kept the family apart. 

“This is an unprecedented complaint,” wrote tribunal member Devyn Cousineau. “It exposes systemic forces of discrimination and their profound impacts on an Indigenous mother.”

The tribunal ordered the Indigenous-led agency to pay Justine $150,000 as compensation for her suffering. 

VACFSS appealed that order, and in January 2024, Justice Geoffrey Gomery of the B.C. Supreme Court overturned the tribunal’s decision, citing legal and procedural errors. 

Justine then appealed, and after hearing the case in December 2024, the B.C. Court of Appeal restored the tribunal’s decision. 

This latest decision acknowledges the harmful, intergenerational impacts of the child “welfare” system in “Canada” — which has disproportionately affected Indigenous children and families.

Social workers can “save a child’s life, but they can also wreak havoc in that child’s life, in their parent’s life, in their communities and, for some, in their nations,” Marchand wrote.

“By inserting itself into the intimate relationship between parent and child, the state takes on the responsibility of doing so without discrimination … Relying on stereotypes in such decisions, far from being in the best interests of the child, is in the best interests of no one.”  

‘The ability to vindicate their rights’ 

In successive courtrooms, VACFSS argued that the tribunal shouldn’t have heard Justine’s complaint in the first place, because the provincial court was already attending to concerns about her children’s safety. 

The charity, a provincially delegated agency, argued the tribunal undermined the court’s authority by getting involved in child protection matters.

But Marchand found the provincial court and tribunal have overlapping jurisdiction when it comes to child protection. 

Under the province’s Child, Family and Community Service Act (CFCSA), the provincial court has jurisdiction to decide whether a person’s child is or was in need of protection, he explained. Meanwhile, the tribunal has authority to decide whether the person’s right to be free of discrimination — as per the Human Rights Code — is or was protected in the process.

“The CFCSA and the Code play distinct, complementary and harmonious roles in the context of child protection proceedings,” wrote Marchand. 

“The tribunal therefore had jurisdiction to address [Justine’s] complaint. Finding otherwise would leave [Justine], and other parents in a similar situation, without the ability to vindicate their rights under the Code.”

“B.C.’s” Office of the Human Rights Commissioner was one of several organizations to intervene in this case, presenting context for the court’s consideration. 

“This decision is really important,” commissioner Kasari Govender told IndigiNews, “because it shows that Indigenous families have a place to go when they experience discrimination in this context and actually can seek resolutions to those claims.” 

Justine’s remedy or award is still pending, according to a statement published by VACFSS on May 8.

“VACFSS is consulting with its legal counsel and reviewing the B.C. Court of Appeal decision,” the organization stated, “and will release to the complainant a 2022 Tribunal award of $150,000 that has been held in trust pending the results of that decision.”

Both VACFSS and the B.C. Human Rights Tribunal declined IndigiNews’ interview requests.  

VACFSS could still appeal to the Supreme Court of Canada, but Justine’s lawyers — Danielle Sabelli and Jonathan Blair of the Community Legal Assistance Society — say they’d be “surprised” if it did, given the “problematic” optics and considerable costs.

‘Good intentions’ don’t justify discrimination

A Métis lawyer involved with the case, Frances Rosner, said she couldn’t sleep when she heard the decision was coming out.

When she finally read it, she described herself as falling off her chair “in tears of joy.”

“I have invested a lot in this case,” Rosner said. 

Rosner acted as co-counsel for Justine at the tribunal hearing. And while she didn’t represent her at the appeal stage, she was “still researching and trying to assist.”

“My goal in this hearing was to create accountability and prove that the social workers on this file were acting on bias and stereotype,” she said, “and importantly to show how that is harmful to Indigenous children.”

When the B.C. Supreme Court overturned the tribunal’s decision, Justice Gomery wrote that a child protection worker’s risk assessment, when “made in good faith, cannot be discriminatory, even if it engages stereotypical reasoning.”

But the higher Court of Appeal challenged this analysis.

“Good intentions … are not enough to justify discriminatory impact,” Marchand wrote. 

Rosner said she’s hoping lawyers representing parents like Justine will “start familiarizing themselves with the Human Rights Code” and applying a critical lens to social workers’ assessments. 

“Systemic racism and discrimination are so omnipresent in this system that the decision makers aren’t even attuned to it,” Rosner said. 

“It’s not malicious; it’s not done in bad faith. But it’s done inadvertently, every single day, by every decision maker all along the way.”

Bety Tesfay, staff lawyer with West Coast LEAF, uses the phrase “family policing system” to describe the child protection system. Her organization was an intervenor in this case.

“The system can be very punitive,” she explained. “It is very surveillance-oriented, it can be inflexible, so we think policing more accurately describes what it does.”

But it isn’t exempt from human rights oversight, she said, “especially considering the colonial history of the system.”

“It’s not the intentions of the state or even its workers that are consequential — but rather the impact.” 

A colonial system

In her decision, tribunal member Devyn Cousineau stressed the effects of anti-Indigenous and anti-Black racism, quoting a 2018 report by the Ontario Human Rights Commission about the overrepresentation of Indigenous and Black families in “Ontario’s” child welfare system. 

“Child welfare workers, who are often white, may be less likely to relate to Indigenous or racialized clients, see their situations as nuanced, or give them the benefit of the doubt,” the report found. 

“They may hold negative stereotypes about Indigenous and Black families. They may privilege White, middle-class communication patterns, hold racialized families to changing expectations, and be more likely to negatively interpret the frustration and anger of these families as ‘a lack of compliance.’”

Cousineau pointed out that VACFSS is funded entirely by the province and constrained by the fact that its operations are governed by the provincial CFCSA. 

This law was “developed and imposed without the input or approval of Indigenous people,” she wrote, citing testimony from Mary Ellen Turpel-Lafond, who served as the province’s Representative for Children and Youth from 2006 to 2016. 

When B.C. Supreme Court Justice Gomery reviewed Cousineau’s decision, he found that her “deep scepticism” of the CFCSA’s legal framework “distracted [her] from the question at hand.” 

But the B.C. Court of Appeal found she had “had good reason to consider this context.”

“The contextual evidence did not distract [Cousineau]. Rather, it helped her to identify interventions where prejudice was a factor,” Marchand wrote.

“It also helped her understand how [Justine’s] distrust of the child welfare system, and her particular needs in relation to that system, stemmed from her and her community’s traumatic history with both residential schools and the child welfare system.”

This is an important finding, said Sabelli. 

“Discrimination is subtle. Oftentimes because of its subtleties, you do have to consider the larger context.”

Rosner said she’s hoping people will read this decision and “not be defensive about it.” 

“Systemic racism and discrimination has been a factor for hundreds of years now, and we are now trying to undo or decolonize the system,” she said. “And that’s going to take all of us to do it — not just Indigenous people.” 

Two days after the appeal court’s ruling came down, Justine attended a Mother’s Day powwow in “Vancouver” with her four daughters — and a baby on the way. 

“I hope maybe this child will learn the fight that I fought,” she said.

She held her youngest’s hand as they walked past vendor stands bursting with Indigenous designs — t-shirts emblazoned with “Every child matters” and “No more stolen sisters.” 

“My hope for this baby is never to have to suffer like these kids had to suffer … to be breastfed and ripped away from your mother at three months old,” she said. 

“I hope this child … doesn’t have to experience stereotypes because they’re Indigenous.”

This story was produced as part of Spotlight: Child Welfare, a collaborative journalism project that aims to improve reporting on the child “welfare” system. Tell us what you think about the story here.

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