Case summary

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 (what West Coast LEAF calls the family policing system).

In a judicial review before the BC Supreme Court, “T.L.” said 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. disagreed with the director’s assessment and sought the return of her children.

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. sought to prevent the director from relying on these records in its future decision-making or in court.

This case was heard June 2021. In a decision dated November 12, 2021, Justice Brongers found that s. 96 was constitutional and dismissed T.L.’s judicial review. T.L. appealed the decision and the BC Court of Appeal heard the appeal in early 2023.

 

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 family policing system that 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.

West Coast LEAF was granted intervenor status in the appeal before the BC Court of Appeal. We made submissions about the significance and relevance of the social context of the family policing system to the constitutionality of s. 96.

This intervention built on West Coast LEAF’s work across our program areas to support families engaged in the family policing system and advocate for reform. We are focused on supporting a shift from the current 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 was an intervenor in a hearing before the BC Human Rights Tribunal, R.R. v. Vancouver Aboriginal Child and Family Services Society. R.R. alleged 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 is nearing completion of our three-year Child Welfare Advocacy Communities of Practice Project, which aims to build community capacity to support families engaged in the family policing. The project is structured around working groups of lawyers, front-line child welfare advocates, and Indigenous family and community members, as well as a steering committee that 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 project. This work culminated in a 2019 report, Pathways in a Forest: Indigenous guidance on prevention-based child welfare, which was developed collaboratively with Indigenous Elders, caregivers, and organizations to highlight ways in which the family policing system can shift to a prevention-based model.
  • In September 2014, West Coast LEAF published a law reform report, Able mothers: The intersection of parenting, disability and the law, exploring systemic discrimination against mothers with disabilities in BC, including in their interactions with the family policing.

West Coast LEAF was granted intervenor status in the appeal before the BC Court of Appeal. The case was heard on January 16 and 17, 2023.

 

Decision

On April 24, 2023, the BC Court of Appeal overturned the BC Supreme Court decision, improving protections for T.L., and all parents engaged in the family policing system. With this victory, constitutional safeguards can be put into place to provide parents with agency over their personal information and medical records during interactions with MCFD.

 

Case documents

Application for Leave to Intervene – BC Supreme Court

Decision – BC Supreme Court

Application for Leave to Intervene – BC Court of Appeal

Decision – BC Court of Appeal

 

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Press release – A huge win for parents’ right to privacy at BC Court of Appeal