'Unprecedented': B.C. Human Rights Tribunal awards Indigenous mom $150K in discrimination case

A B.C. Human Rights Tribunal hearing room is shown in this file image from March 29, 2010. (THE CANADIAN PRESS/Darryl Dyck)

An Indigenous mother whose children were wrongfully taken from her and placed in care has been awarded $150,000 in damages in a decision described as "unprecedented" by the B.C. Human Rights Tribunal.

The tribunal found the apprehension of the woman's children and the subsequent limits on her access to them – which included months-long periods of no contact whatsoever -- was discriminatory, rooted in stereotypes about and prejudice against her as an Indigenous mom who had experienced mental health issues.

"This is an unprecedented complaint. It exposes systemic forces of discrimination and their profound impacts on an Indigenous mother. It is a complaint that warrants an award at the highest end of human rights damages "tribunal member Devin Cousineau wrote.

"The discrimination in this case is the effect of a wider web of laws, policies, and practices which interact to create a system stacked against Indigenous families, especially single mothers living in poverty, with disabilities, and with children with disabilities."

'WHAT MANY INDIGENOUS PARENTS FACE'

The woman, identified by the initials R.R. filed her first complaint against Vancouver Aboriginal Family and Social Services Society in 2017 while her four children were still in the child protection agency's custody. The 155-page decision in her case was released Wednesday detailing what the tribunal heard during a hearing that spanned 21 days over 17 months.

Lawyer Aleem Bharmal, with the Community Legal Assistance Society, served as R.R.'s co-counsel and notes the amount awarded to R.R. for the injury to her dignity is the second-highest ever seen in the province.

"I don't think anyone reading the facts could come away without recognizing the absolute bias and stark double standard our client was treated with," he told CTV News.

"The decision highlights what many Indigenous parents face in the current child welfare system, this system that has evolved from the residential school system."

As the tribunal decision notes note, 66 per cent of children in care in British Columbia are Indigenous, even though Indigenous children make up only 10 per cent of the province's child population.

In R.R.'s case, the tribunal found "VACFSS did not have a reasonable basis to conclude that R.R.’s children were in need of protection."

HISTORY WITH CHILD PROTECTION AGENCIES

R.R. is an intergenerational survivor of residential school. Her first interaction with the child welfare system came when she herself was only five years old. In 2003, when R.R. was 20, she gave birth to her first child. Child protection workers were called six days later.

"The social worker talked to R.R.’s doctor who said he had 'no concerns.' Nevertheless, this began RR’s interactions with the child welfare system as a parent," the decision reads.

When the baby was only five months old he died in his sleep of multiple viral infections, the decision says. Bharmal says the way R.R. was treated in the immediate aftermath of this tragedy foreshadowed the way she would be treated by child protection authorities in the future.

"The very first reaction of the social worker was to suspect her of drinking and smothering her baby," he said, adding that a coroner's report found the baby was well nourished and had died of natural causes.

This unfounded suspicion that R.R. abused alcohol and was responsible for her bay's death, Bharmal said, would crop up in social workers' reports for years to come and shape the way she was treated by child protection authorities. Her sobriety would be questioned without merit and the idea that she was a danger to her children would persist.

"This is what indigenous families face in today's society – in the health-care system and in the child welfare system," Bharmal said.

CHILDREN APPREHENDED

In 2016, R.R. had four children – a teenager, two "middle children" who were primary school-aged, and an infant. When they were removed from her care she was still breastfeeding the youngest. The tribunal notes they were placed in three separate homes, with only the two middle children remaining together and within the city of Vancouver where R.R. lived. She was only allowed to see her children for eight hours on Saturday, eight hours on Sunday, and two hours at Tuesday night Powwows.

All her time with them was supervised.

Bharmal says another example of the discrimination his client experienced can be seen in the way VCAFSS interpreted reports of the supervised visits that R.R. had with her children.

"They wrote glowing reports about the mother and the connection she had with her children, how loving she was. Yet those were picked apart," he told CTV News, saying one example found that taking the children to the grocery store was not a sufficiently "child-centred" activity.

"That's the type of hypercritical lens they were putting her through, micromanaging her. At the same time, these kids were coming to various serious harm in foster care."

HARM IN FOSTER CARE

Bharmal points to two specific instances of this harm, each concerning the middle children.

In 2017, R.R.'s eight-year-old daughter attempted suicide.

"She told her foster parent and doctor that she thought it would bring her back to her mother faster," the tribunal's decision says.

Despite this, Cousineau noted that the suicide attempt was used to justify the child's continued placement in foster care – even though it occurred nine months after the child's removal.

"VACFSS interpreted the incident as evidence that (the child) was not safe with R.R. I am not satisfied that (the child's) self-harm is evidence that she was emotionally harmed by RR rather than her situation of being in government care, without mental health supports," Cousineau wrote.

The second incident of harm concerned the other middle child, a six-year-old girl. The tribunal's decision says that R.R. was told by her daughter that she and her sister were sometimes sent to bed without dinner and that they were being physically restrained at night by workers in the staffed facility they were living in.

When R.R. saw bruises on her child, including what looked like adult handprints, she called the social workers and police to report the suspected abuse. The tribunal says a subsequent medical examination found the bruises were "consistent with the application of physical restraints." Because "there was no other option," the girls were sent back to the facility.

"The agency consistently downplayed the serious harm the children were coming to in foster care, and yet we're highly critical of any small incidents involving the mother," Bharmal said.

When R.R. raised concerns about her children's treatment in care she was accused of "playing the abuse card," according to the tribunal's decision. Further, when her children complained or spoke up, R.R. was accused of coaching them to fabricate the allegations.

'EXCLUDED FROM KEY PARTS OF CHILDREN'S YOUNG LIVES'

In addition to outright abuse, the tribunal described the harm to R.R. and her children as continuous and a direct effect of the discriminatory decision to apprehend the children and keep them in care for more than two years.

"R.R. was excluded from key parts of her children’s young lives, including their education. She did not see any report cards, she did not get them dressed for picture day, or see a class photo. She was alienated from their school, whose administrators were told at various points to phone the police if she was seen at the school. She was given little information about their lives, which stoked her worst fears," Cousineau wrote. "Very significantly, RR was impeded from transmitting cultural values and practices to her children."

No court ever ruled that R.R.'s children were in need of protection. Interim orders to keep the children in care were simply renewed repeatedly, based on the judgment and recommendation of VACFSS workers.

FAILURE TO SUPPORT R.R.

The tribunal found that the failure of VACFSS to support the family to stay together was another aspect of its discrimination. Given the harmful legacy of the residential school system and the over-representation of Indigenous children and youth in care, apprehension of Indigenous children is supposed to be a last resort. Keeping children connected to their families, communities and cultures is supposed to be prioritized and facilitated.

"Because of R.R.’s Indigeneity and trauma, she had a heightened need to be empowered and included in decisions respecting her children and to have complete, ongoing, and accurate information about their wellbeing. Instead, VACFSS responded to her with escalating assertions of power and control," the tribunal found.

"The power that VACFSS exercises as a child protection agency is almost unparalleled in Canadian society: the power to take a person’s children based on an allegation. With such power comes a grave responsibility to exercise its duties free of discrimination. As this case demonstrates, the consequences for failing in that responsibility could not be more severe – for the parent and for the child."

THRIVING, CONNECTED TO CULTURE

In 2019, after a mediation process, R.R.'s children were returned to her care. The tribunal and Bharmal both described the family as thriving since being reunified.

"When she eventually fought and got full custody of her children back, one of the first things they did was lead the march for Missing Indigenous Women and Girls. She consistently connects them to their cultural roots," Bharmal said.

"I think she is an inspirational example of an Indigenous woman showing great strength and persevering against bias, mistreatment and oppression."