R.R. v Vancouver Aboriginal Child and Family Services Society [2020]

Status: Completed

13/02/2020Family well-being Case

Case Summary

This case is being brought under judicial review after the BC Human Rights Tribunal ruled that Vancouver Aboriginal Child and Family Services Society (VACFSS) discriminated against R.R., when R.R.’s children were in VACFSS’ care.

R.R., an Indigenous mother, brought a complaint against VACFSS under the Human Rights Code for discrimination on the grounds of race, colour, ancestry, and mental disability.

In 2016, VACFSS apprehended R.R.’s four children and denied R.R. custody and restricted her access to her children. R.R.’s complaint concerned VACFSS’s decisions to deny and restrict access from April 2017 to December 2018, which R.R. says have been made based on prejudicial assumptions about her as an Indigenous mother and her ability to parent while living with a mental health disability. R.R. says VACFSS relied on stereotypes about intergenerational residential school trauma, rather than assessing her ability to parent on her own merits. The Tribunal also considered whether VACFSS has failed to accommodate R.R.’s cultural and disability-related needs with appropriate support.

Indigenous children are taken into government care at devastatingly high rates, continuing colonial practices of apprehension. R.R.’s complaint is an important examination of how the family policing system, also known as the child welfare system, interacts with Indigenous caregivers in the context of human rights.

BC Human Rights Tribunal [2020] – R.R. v VACFSS

West Coast LEAF was granted intervenor status to assist the Tribunal’s understanding of the social context of this complaint. West Coast LEAF argued that R.R.’s complaint must be understood within the broader colonial context in which interactions between Indigenous mothers and the child welfare system occur.

On November 22, 2022, the BC Human Rights Tribunal ruled that VACFSS discriminated against R.R., while R.R.’s children were in VACFSS’s care. The Tribunal found that VACFSS discriminated against R.R. in two ways. First, prejudice and stereotypes about R.R. informed VACFSS’s decisions to retain custody of and restrict R.R.’s access to her children. Second, VACFSS did not adequately support R.R. or meet her specific needs as an Indigenous mother who was dealing with the impacts of trauma. VACFSS has filed a petition with the Supreme Court of BC to appeal the Tribunal’s decision.

BC Supreme Court – Judicial Review [2023] – VACFSS v R.R.

West Coast LEAF was once again granted intervenor status, this time in the BC Supreme Court’s review of the Tribunal’s decision. We are arguing for the continued consideration of R.R.’s case alongside understandings of ongoing colonialism and the power imbalance inherent in the relationship between parents and VACFSS.

The judicial review centers around the power of the Tribunal to consider discriminatory practices by child welfare agencies. This decision will impact the ability of parents and caregivers engaged in the family policing system to seek redress under the Human Rights Code. West Coast LEAF is intervening in this case to ensure that the Court takes into consideration the historical and social context of the child welfare system, including colonization, systemic discrimination, racism, and misogyny. We are asking the Court to consider the overlapping systems of discrimination that operate to disadvantage Indigenous families when it determines the scope of the Tribunal’s role in matters concerning the child welfare system.

Decision

On January 22, 2024, the BC Supreme Court ruled that the Human Rights Tribunal does have the jurisdiction to consider allegations of discrimination from families engaged with child welfare agencies. However, the BC Supreme Court found legal errors and procedural unfairness in the original Tribunal decision that required setting aside the decision and sending it back to the Tribunal for reconsideration.

While we are encouraged that the BCSC confirmed the Tribunal’s role in matters that involve the family policing system, we are concerned that the decision downplays the negative impact that discrimination against parents can have on their children. We are also disappointed about the impact of this decision on R.R. and her family, who will now have to navigate another Tribunal case or appeal the BCSC decision.