This case is about the constitutionality of s. 96 of BC’s child welfare legislation, the Child, Family, and Community Service Act. Under s. 96, a director (i.e., a representative of the Minister of Children and Family Development) has the right to collect any third-party information deemed necessary to enable the director to carry out their role and responsibilities. In practical terms, this provision gives the director nearly unfettered access to information held by third parties—such as health care providers, counsellors, other service providers, and the police—about caregivers and children who are involved in the child welfare system.
In a judicial review before the BC Supreme Court, “T.L.” says that s. 96 unjustifiably infringes ss. 7 and 8 of the Charter, which protect people from unreasonable state intrusions on their privacy. T.L. is a mother who has a mental health disability. The director removed T.L.’s children from her care because of a concern about the effects of T.L.’s mental health disability on her ability to safely parent her children. T.L. disagrees with the director’s assessment and will be seeking the return of her children in an upcoming court hearing.
When deciding whether to apprehend T.L.’s children, the director used s. 96 to request and receive years of T.L.’s health and psychiatric records from several of her health care providers. In addition to challenging the constitutionality of s. 96, T.L. is seeking orders to prevent the director from relying on these records in its future decision-making or in court.
WEST COAST LEAF’S INVOLVEMENT
West Coast LEAF was granted intervenor status in the judicial review to argue that the constitutionality of s. 96 must be assessed in the context of a colonial child welfare system which disproportionately affects Indigenous families and other families who experience inequality along one or more axes of marginalization. In particular, where the director requests a parent’s health information, the director’s request could be informed by bias and stereotypes about the ability of parents with disabilities to take care of their children. Parents who experience overlapping inequalities—such as Indigenous parents with disabilities—are particularly susceptible to such discriminatory beliefs. In this context, meaningful limits on the director’s powers under s. 96 are necessary to prevent the discriminatory collection of what is often highly personal and sensitive information.
This intervention builds on West Coast LEAF’s work across its program areas to support families engaged in the child welfare system and advocate for child welfare reform, with a focus on shifting the child welfare system from what is currently a colonial and apprehension-based system to a system in which Indigenous children, families, and communities will thrive. Examples of this work include:
- West Coast LEAF is an intervenor in an ongoing hearing before the BC Human Rights Tribunal, R. v. Vancouver Aboriginal Child and Family Services Society. R.R. alleges that Vancouver Aboriginal Child and Family Services Society—a delegated Aboriginal agency of the Ministry of Children and Family Development—denied her custody of and access to her children because of discriminatory assumptions about her ability to parent as an Indigenous mother with mental health disabilities. West Coast LEAF was granted intervenor status to make submissions about the social context underlying the complaint, including systemic discrimination against Indigenous families.
- West Coast LEAF has completed one year of a three-year project, entitled the Child Welfare Advocacy Communities of Practice Project, which aims to build community capacity to support families engaged in the child welfare system. The project is currently structured around working groups of lawyers, front-line child welfare advocates, and Indigenous family and community members, as well as a steering committee which provides strategic guidance to the working groups.
- The Child Welfare Advocacy Communities of Practice Project arose out of learnings from West Coast LEAF’s Shifting the Child Protection System This project culminated in a 2019 report entitled Pathways in a Forest: Indigenous guidance on prevention-based child welfare, which was developed collaboratively with Indigenous elders, caregivers, and organizations and highlighted ways in which the child welfare system can shift from an apprehension-based model to a prevention-based model.
- In September 2014, West Coast LEAF published a law reform report titled Able mothers: The intersection of parenting, disability and the law. This report explored systemic discrimination against mothers with disabilities in British Columbia, including in their interactions with the child welfare system.
The judicial review will be heard by the BC Supreme Court over 3 days, starting on June 21, 2021.