Canadian Human Rights Tribunal Tribunal canadien des droits de la

Canadian Human

Rights Tribunal

Tribunal canadien

des droits de la personne

Citation: 2016 CHRT 2

Date: January 26, 2016

File No.: T1340/7008

Between:

First Nations Child and Family Caring Society of Canada

- and -

Assembly of First Nations

Complainants

- and -

Canadian Human Rights Commission

Commission

- and -

Attorney General of Canada

(Representing the Minister of Indian Affairs and Northern Development Canada)

Respondent

- and -

Chiefs of Ontario

- and -

Amnesty International

Interested Parties

Decision

Members: Sophie Marchildon and Edward Lustig

Table of Contents

I. Acknowledgement............................................................................................................. 1

II. Complaint and background .............................................................................................. 1

III. Parties................................................................................................................................. 3

IV. The hearing, disclosure and admissibility of documents .............................................. 4

V. Analysis .............................................................................................................................. 6

A. AANDC is involved in the provision of child and family services to

First Nations on reserves and in the Yukon ....................................................... 8

i. Meaning of “service” under section 5 of the CHRA............................... 8

ii. Evidence indicating AANDC provides a “service” ................................. 9

a. Jurisdiction of the CHRA over the activities of AANDC .......... 10

b. Funding can constitute a service ............................................... 11

c. The “assistance” or “benefit” provided by AANDC .................. 13

d. First Nations children and families are extended the

“assistance” or “benefit” by AANDC .......................................... 18

e. Section 91(24) of the Constitution Act, 1867 ........................... 24

f. The Crown’s fiduciary relationship with Aboriginal

peoples ......................................................................................... 28

iii. Summary of findings ............................................................................... 35

B. First Nations are adversely impacted by the services provided by

AANDC and, in some cases, denied services as a result of AANDC’s

involvement .......................................................................................................... 37

i. General child welfare principles............................................................. 37

ii. The allocation of funding for First Nations child and family

services .................................................................................................... 39

a. The FNCFS Program.................................................................. 39

b. Reports on the FNCFS Program ............................................... 48

c. 1965 Agreement in Ontario ........................................................ 76

d. Other provincial/territorial agreements...................................... 85

iii. AANDC’s position on the evidence ....................................................... 87

a. The relevance and reliability of the studies on the

FNCFS Program ......................................................................... 87

b. The choices of FNCFS Agencies and additional funding

provided......................................................................................107

c. Comparator evidence ...............................................................112

iv. Best interest of the child and Jordan’s Principle ................................122

v. Summary of findings .............................................................................138

C. Race and/or national or ethnic origin is a factor in the adverse

impacts or denials .............................................................................................142

i. Substantive equality ..............................................................................143

ii. Impact of the Residential Schools system .........................................145

a. History of Residential Schools .................................................145

b. Transformation of Residential Schools into an aspect of

the child welfare system ...........................................................148

c. Intergenerational trauma of Residential Schools...................148

iii. Canada’s international commitments to children and

Indigenous peoples ...............................................................................152

VI. Complaint substantiated ...............................................................................................160

VII. Order...............................................................................................................................164

A. Findings of discrimination .................................................................................165

B. Cease the discriminatory practice and take measures to redress and

prevent it.............................................................................................................166

iii

C. Compensation ...................................................................................................168

D. Costs for obstruction of process ......................................................................170

E. Retention of jurisdiction ....................................................................................170

VIII. Annex: exhibit references.............................................................................................172

À la douce mémoire de Réjean Bélanger

In loving memory of Réjean Bélanger

I. Acknowledgement

[1] This decision concerns children. More precisely, it is about how the past and

current child welfare practices in First Nations communities on reserves, across Canada,

have impacted and continue to impact First Nations children, their families and their

communities.

[2] These proceedings included extensive evidence on the history of Indian Residential

Schools and the experiences of those who attended or were affected by them. The

Tribunal also heard heartfelt testimony from someone who attended and was directly

impacted by attending a residential school. At the outset of these reasons, the Panel

Members (the Panel) believe it important to acknowledge the suffering of all residential

school survivors, their families and communities. We recognize the courage of those who

have spoken about their experiences over the years and before this Tribunal. We also

wish to honour the memory and lives of the many children who died, and all who were

harmed, while attending these schools, along with their families and communities. We

wish healing and recognition for all Aboriginal peoples across Canada for the individual

and collective trauma endured as a result of the Indian Residential Schools system.

II. Complaint and background

[3] Child welfare services, or child and family services, are services designed to protect

children and encourage family stability. The main aim of these services is to safeguard

children from abuse and neglect (see Annex, ex. 1 s.v. “child welfare”). Hence the best

interest of the child is a paramount principle in the provision of these services and is a

principle recognized in international and Canadian law. This principle is meant to guide

and inform decisions that impact all children, including First Nations children.

[4] Each province and territory has its own child and family services legislation and

standards and provides those services within its jurisdiction. However, the provision of

child and family services to First Nations on reserves and in the Yukon is unique and is the

subject of this decision.

[5] At issue are the activities of Indian and Northern Affairs Canada (INAC), known at

the time of the hearing as Aboriginal Affairs and Northern Development Canada (AANDC),

in managing the First Nations Child and Family Services Program (the FNCFS Program),

its corresponding funding formulas and a handful of other related provincial and territorial

agreements that provide for child and family services to First Nations living on reserve and

in the Yukon Territory. Pursuant to the FNCFS Program and other agreements, child and

family services are provided to First Nations on-reserve and in the Yukon by First Nations

Child and Family Services Agencies (FNCFS Agencies) or by the province/territory in

which the community is located. In either situation, the child and family services legislation

of the province/territory in which the First Nation is located applies. AANDC funds the child

and family services provided to First Nations by FNCFS Agencies or the province/territory.

[6] Pursuant to section 5 of the Canadian Human Rights Act (the CHRA), the

Complainants, the First Nations Child and Family Caring Society of Canada (the Caring

Society) and the Assembly of First Nations (the AFN), allege AANDC discriminates in

providing child and family services to First Nations on reserve and in the Yukon, on the

basis of race and/or national or ethnic origin, by providing inequitable and insufficient

funding for those services (the Complaint). On October 14, 2008, the Canadian Human

Rights Commission (the Commission) referred the Complaint to this Tribunal for an

inquiry.

[7] In a decision dated March 14, 2011 (2011 CHRT 4), the Tribunal granted a motion

brought by AANDC for the dismissal of the Complaint on the ground that the issues raised

were beyond the Tribunal’s jurisdiction (the jurisdictional motion). That decision was

subsequently the subject of an application for judicial review before the Federal Court of

Canada.

[8] On April 18, 2012, the Federal Court rendered its decision, Canada (Human Rights

Commission) v. Canada (Attorney General), 2012 FC 445 (Caring Society FC), setting

aside the Tribunal’s decision on the jurisdictional motion. The Federal Court remitted the

matter to a differently constituted panel of the Tribunal for redetermination in accordance

with its reasons. The Respondent’s appeal of that decision was dismissed by the Federal

Court of Appeal in Canada (Attorney General) v. Canadian Human Rights Commission,

2013 FCA 75 (Caring Society FCA).

[9] A new panel, composed of Sophie Marchildon, as Panel Chairperson, and

members Réjean Bélanger and Edward Lustig, was appointed to re-determine this matter

(see 2012 CHRT 16). It dismissed the Respondent’s motion to have the jurisdictional

motion re-heard, and ruled the Complaint would be dealt with on its merits (see 2012

CHRT 17).

[10] The Complaint was subsequently amended to add allegations of retaliation (see

2012 CHRT 24). In early June 2015, the Panel found the allegations of retaliation to be

substantiated in part (see 2015 CHRT 14).

[11] The present decision deals with the merits of the Complaint. During deliberations

our friend and colleague, Tribunal Member Réjean Bélanger, passed away. Despite his

valued contributions to the hearing and consideration of this matter, he sadly was not able

to see the final result of his work. While this decision is signed on behalf of the remaining

Members of the Panel, we dedicate it in his honour and memory.

III. Parties

[12] The Caring Society is a non-profit organization committed to research, policy

development and advocacy on behalf of First Nations agencies that serve the well-being of

children, youth and families. The AFN is a national advocacy organization that works on

behalf of over 600 First Nations on issues such as Treaty and Aboriginal rights, education,

housing, health, child welfare and social development. The Commission, in appearing

before the Tribunal at a hearing, represents the public interest (see section 51 of the

CHRA). AANDC is the federal government department primarily responsible for meeting

the Government of Canada’s obligations and commitments to Aboriginal peoples.

[13] Additionally, two organizations were granted “Interested Party” status for these

proceedings: Amnesty International and the Chiefs of Ontario (COO). Amnesty

International is an international non-governmental organization committed to the

advancement of human rights across the globe. It was granted interested party status to

assist the Tribunal in understanding the relevance of Canada’s international human rights

obligations to the Complaint. The COO is a non-profit organization representing the 133

First Nations in the Province of Ontario. It was granted interested party status to speak to

the particularities of on-reserve child welfare services in Ontario.

IV. The hearing, disclosure and admissibility of documents

[14] The hearing of the Complaint spanned 72 days from February 2013 to October

2014. Throughout the hearing, documentary disclosure and the admissibility of certain

documents as evidence became an issue.

[15] All arguably relevant documents were not disclosed prior to the commencement of

the hearing. Despite agreeing to complete its disclosure prior to the start of the hearing,

and subsequently confirming that it had, AANDC knew of the existence of a number of

arguably relevant documents in the summer of 2012 and yet failed to disclose them prior

to the hearing. Only after the completion of an Access to Information Act request made by

the Caring Society, and shortly before the third week of hearings, did AANDC inform the

parties and the Tribunal of the existence of over 50,000 additional documents and an

unspecified number of emails, which were potentially relevant to the Complaint, but had

yet to be disclosed. As a result, the Tribunal vacated hearing dates in June 2013, re-

arranged the proceedings to hear the allegations of retaliation in July and August 2013,

and, following a deadline for AANDC to complete its disclosure by August 31, 2013,

resumed the hearing on the merits on dates from August 2013 to January 2014 (see 2013

CHRT 16).

[16] Following the disclosure of over 100,000 additional documents by AANDC, the

hearing resumed. However, AANDC did not complete the disclosure of all arguably

relevant documents until August 2014 due to an objection under section 37(1) of the

Canada Evidence Act. Specifically, certain documents were characterized as being

subject to Cabinet confidence privilege. All the parties agreed to have the Clerk of the

Privy Council review the documents to determine if the privilege applied. This review

process was completed fairly quickly once the Clerk was provided with the documents.

[17] An issue arose as to how the 100,000 additional documents could be admitted into

evidence. The Caring Society requested an order that any additionally disclosed

documents upon which it wished to rely be admitted as evidence for the truth of their

contents, regardless of whether or not the author or recipient of the document was called

as a witness, and whether or not they were put to any other witness. For reasons outlined

in 2014 CHRT 2, the Panel ruled as follows:

a. Rule 9(4) of the Tribunal’s Rules of Procedure will continue to apply. As

such, documents will continue to be admitted into evidence, on a case-by

case basis, once they are introduced during the hearing and accepted by

the Panel;

b. There will be no need to call witnesses for the sole purpose of

authenticating documentary evidence. Any issues raised relating to

authentication will be considered by the Panel at the weighing stage;

c. For the purposes of Rule 9(4), a document has not been fully “introduced”

at the hearing until counsel or a witness for the party tendering it has

indicated:

i. which portions of the document are being relied upon; and

ii. how these portions of the document relate to an issue in the case.

d. Should a party wish to rely on evidence during its final argument that was

not introduced according to the procedure above (either prior to or

subsequent to this order), appropriate curative measures may be taken by

the Panel, and in particular, the opposing party may be allotted additional

time to adequately prepare a response, including calling additional

witnesses and bringing forward additional documentary evidence, in

accordance with the principles of procedural fairness. This may result in

an adjournment of the proceedings.

[18] Following the completion of the hearing, further issues arose as to which

documents ought to form part of the record before the Tribunal. AANDC raised concerns

regarding the admissibility of documents relied on by counsel for the Complainants and

Commission, but not referred to orally during the hearing. In 2015 CHRT 1, the Panel

ordered:

Documents listed in Appendix B of the Commission’s December 1, 2014

letter (including Documents Referred to Only in Final Written Submissions

(which were Adopted Orally) found at page 9) will be considered as forming

part of the evidentiary record. The Respondent will be granted an

opportunity to respond to the Complainant’s documents listed in Appendix B

and supporting submissions with the exception of tab-66. Should the

Respondent decide to benefit from this opportunity, the Respondent is to

advise the parties and the Tribunal of its intention and form of response by

no later than January 21, 2015, following which the Respondent will have

until February 4, 2015 to file its response.

[19] In response to the Panel’s order, AANDC provided written representations with

respect to the documents at issue. According to AANDC, the Panel should place little, if

any, weight on those documents in determining the merits of the Complaint. It also

provided a chart summarizing its position on each of the documents.

[20] AANDC’s submissions on the documents subject to the Panel’s order in 2015

CHRT 1, along with its other submissions regarding the weight to ascribe to the evidence

in this matter, have been taken into consideration by the Panel, together with the

submissions of the other parties, in making the findings that follow.

V. Analysis

[21] As mentioned above, the present Complaint alleges the provision of child and

family services in on-reserve First Nations communities and in the Yukon is discriminatory.

Namely that there is inequitable and insufficient funding for those services by AANDC. In

this regard, the Complainants have the burden of proof of establishing a prima facie case

of discrimination. A prima facie case is “...one which covers the allegations made and

which, if they are believed, is complete and sufficient to justify a verdict in the

complainant’s favour in the absence of an answer from the respondent” (see Ont. Human

Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC) at para. 28).

[22] In the context of this Complaint, under section 5 of the CHRA, the Complainants

must demonstrate (1) that First Nations have a characteristic or characteristics protected

from discrimination; (2) that they are denied services, or adversely impacted by the

provision of services, by AANDC; and, (3) that the protected characteristic or

characteristics are a factor in the adverse impact or denial (see Moore v. British Columbia

(Education), 2012 SCC 61 at para. 33 [Moore]).

[23] The first element is relatively simple in this case: race and national or ethnic origin

are prohibited grounds of discrimination under section 3 of the CHRA. There was no

dispute that First Nations possess these characteristics.

[24] The second element requires the Complainants to establish that AANDC is actually

involved in the provision of a “service” as contemplated by section 5 of the CHRA; and, if

so, to demonstrate that First Nations are denied services or adversely impacted by

AANDC’s involvement in the provision of those services.

[25] For the third element, the Complainants have to establish a connection between

elements one and two. A “causal connection” is not required as there may be many

different reasons for a respondent’s acts. That is, it is not necessary that a prohibited

ground or grounds be the sole reason for the actions in issue for a complaint to succeed. It

is sufficient that a prohibited ground or grounds be one of the factors in the actions in issue

(see Holden v. Canadian National Railway Co., (1991) 14 C.H.R.R. D/12 (F.C.A.) at para.

7; and, Quebec (Commission des droits de la personne et des droits de la jeunesse) v.

Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at paras. 44-52

[Bombardier]).

[26] In this regard, it should be kept in mind that discrimination is not usually practiced

overtly or even intentionally. Consequently, direct evidence of discrimination or proof of

intent is not required to establish a discriminatory practice under the CHRA (see Basi v.

Canadian National Railway, 1988 CanLII 108 (CHRT); and; Bombardier at paras. 40-41).

[27] In response to the Complaint, AANDC led its own evidence and arguments to

refute the Complainants’ claim of discrimination. It did not raise a statutory exception under

sections 15 or 16 of the CHRA. Therefore, the Tribunal’s task is to consider all the

evidence and argument presented by the parties to determine if the Complainants have

proven the three elements of a discriminatory practice on a balance of probabilities (see

Bombardier at paras. 56 and 64; see also Peel Law Association v. Pieters, 2013 ONCA

396 at paras. 80-90).

[28] It is through this lens, and with these principles in mind, that the Panel examined

the evidence and arguments advanced by the parties in this case. For the reasons that

follow, the Panel finds AANDC is involved in the provision of child and family services to

First Nations on reserves and in the Yukon; that First Nations are adversely impacted by

the provision of those services by AANDC, and, in some cases, denied those services as

a result of AANDC’s involvement; and; that race and/or national or ethnic origin are a

factor in those adverse impacts or denial.

A. AANDC is involved in the provision of child and family services to First

Nations on reserves and in the Yukon

i. Meaning of “service” under section 5 of the CHRA

[29] Section 5 of the CHRA provides:

5. It is a discriminatory practice in the provision of goods, services, facilities

or accommodation customarily available to the general public

(a) to deny, or to deny access to, any such good, service, facility or

accommodation to any individual, or

(b) to differentiate adversely in relation to any individual,

on a prohibited ground of discrimination.

[30] Pursuant to the wording of this section, the Complainants must establish that the

actions complained of are “…in the provision of…services…customarily available to the

general public”. The first part of this analysis involves determining what constitutes the

“service” based on the facts before the Tribunal (see Gould v. Yukon Order of Pioneers,

1996 CanLII 231 (SCC) per La Forest J. at para. 68 [Gould]). In other words, what is the

“benefit” or “assistance” being held out (see Watkin v. Canada (Attorney General), 2008

FCA 170 at para. 31 [Watkin]; and, Gould per La Forest J. at para. 55). In making this

determination, “[r]egard must be had to the particular actions which are said to give rise to

the alleged discrimination in order to determine if they are “services” (see Watkin at para.

33). In this respect, it may be useful to inquire whether the benefit or assistance is the

essential nature of the activity (see Canada (Canadian Human Rights Commission) v.

Pankiw, 2010 FC 555 at para. 42).

[31] The next step requires a determination of whether the service creates a public

relationship between the service provider and the service user. The fact that actions are

undertaken by a public body for the public good is not determinative. In fact, no one factor

is determinative. Rather, in ascertaining whether a service creates a public relationship,

the Tribunal must examine all relevant factors in a contextual manner (see Gould per La

Forest J. at para. 68; and, Watkin at paras. 32-33). As part of this determination, the

Tribunal must decide what constitutes the “public” to which the service is being offered. A

public is defined in relational as opposed to quantitative terms. That is, the public to which

the service is being offered does not need to be the entire public. Rather, clients of a

particular service could be a very large or very small segment of the “public” (see

University of British Columbia v. Berg, [1993] 2 SCR 353 at pp. 374-388; and, Gould per

La Forest J. at para. 68). A public relationship is created where this “public” is extended a

“service” by the service provider (see Gould per La Forest J. at para. 55).

ii. Evidence indicating AANDC provides a “service”

[32] Both the Commission and the Caring Society characterize the FNCFS Program, its

corresponding funding formulas and the related provincial/territorial agreements as a

service provided by AANDC to First Nations children and families on reserves and in the

Yukon.

[33] On the other hand, AANDC submits that its role in the provision of child and family

services to First Nations is strictly limited to funding and being accountable for the

spending of those funds. According to AANDC, funding does not constitute a “service”.

Furthermore, AANDC argues the funding it provides is not “customarily available to the

general public”. Rather, it is provided on a government to government; or, government to

agency basis.

[34] In AANDC’s view, the benefit held out as a service is the provincially mandated

child welfare services provided to First Nations by the FNCFS Agencies or the

provinces/territory. AANDC does not exert control over the services and programs

provided. Rather, decisions as to which services to provide, how they will be provided and

whether the delivery is in compliance with statutory and regulatory requirements rests with

the agencies and the provinces/territory. In this regard, AANDC relies on NIL/TU,O Child

and Family Services Society v. B.C. Government and Service Employees' Union, 2010

SCC 45 (NIL/TU,O), to argue that child welfare services are a matter within provincial

jurisdiction and that it only became involved in First Nations child and family services as a

matter of social policy under its spending power. According to AANDC, its funding does

not change the provincial/territorial nature of child and family services.

[35] As explained in the following pages, the Panel finds AANDC is involved in the

provision of child and family services to First Nations on reserves across Canada and in

the Yukon. Specifically, AANDC offers the benefit or assistance of funding to “ensure”,

“arrange”, “support” and/or “make available” child and family services to First Nations on

reserves and in the Yukon. With specific regard to the FNCFS Program, the objective is to

ensure the delivery of culturally appropriate child and family services, in the best interest of

the child, in accordance with the legislation and standards of the reference

province/territory, and provided in a reasonably comparable manner to those provided to

other provincial/territorial residents in similar circumstances and within FNCFS Program

authorities. This benefit or assistance is held out as a service by AANDC and provided to

First Nations in the context of a public relationship.

a. Jurisdiction of the CHRA over the activities of AANDC

[36] With regard to the NIL/TU,O decision, the question in that case was whether the

labour relations of a FNCFS Agency should be regulated under provincial or federal

jurisdiction. Labour relations are presumptively a provincial matter. In this regard, the

Supreme Court found the NIL/TU,O Agency was a child welfare agency regulated by the

province in all aspects. Neither the fact that it received federal funding, the Aboriginal

identity of its clients and employees, nor its mandate to provide culturally appropriate

services to Aboriginal clients, displaced the operating presumption that labour relations are

provincially regulated.

[37] The present case raises human rights issues in the context of AANDC’s activities.

As opposed to labour relations matters, human rights matters are not presumptively

provincial. The CHRA applies to “…matters coming within the legislative authority of

Parliament” (see CHRA at s. 2). While the activities of FNCFS Agencies and provincial

governments may well be within provincial jurisdiction for labour relations purposes, this

does not have any bearing on the Tribunal’s jurisdiction over AANDC’s activities in this

case.

[38] The Complaint is filed against, and is focused upon, the activities of AANDC.

AANDC is a federal government department created by Parliament through the

Department of Indian Affairs and Northern Development Act. Its mandate is derived from a

number of federal statutes, including the Indian Act. Therefore, any actions taken by

AANDC come within the legislative authority of Parliament and could be subject to the

CHRA.

[39] The issue in this case is not whether AANDC’s activities fall outside the jurisdiction

of the CHRA because they do not come within the legislative authority of Parliament.

Rather, it is whether the CHRA applies to AANDC’s activities because its actions are in the

provision of a service. The fact that other actors, including provincial actors, may be

involved in the provision of the service is not determinative and does not necessarily shield

AANDC from human rights scrutiny (see for example Eldridge v. British Columbia

(Attorney General), [1997] 3 SCR 624 [Eldridge]). As mentioned above, it is for the

Tribunal to consider all relevant factors to determine the nature and extent of AANDC’s

involvement and whether that involvement rises to the status of a “service” under section 5

of the CHRA.

b. Funding can constitute a service

[40] Similarly, even if AANDC’s role in the child and family welfare of First Nations is

limited to funding, there is nothing in the CHRA that excludes funding from the purview of

section 5. That is, funding can constitute a service if the facts and evidence of the case

indicate that the funding is a benefit or assistance offered to the public pursuant to the

criteria outlined above.

[41] A similar argument to the one advanced by AANDC was rejected by the British

Columbia Human Rights Tribunal in Bitonti et al. v. College of Physicians & Surgeons of

British Columbia et al., (1999) 36 CHRR D/263 (BCHRT) (Bitonti). Among other things, the

complainants in that case argued that the allocation of funding provided by the Ministry of

Health did not provide foreign medical school graduates with a real opportunity to obtain

internships. The Ministry of Health responded that the expenditure of funds by the

provincial government was a legislative act that was immune from the Tribunal’s review.

While the BCHRT ultimately found there was no service relationship between the Ministry

of Health and the complainants, at paragraph 315 it was not prepared to accept the

Ministry’s argument regarding immunity for funding:

Carried to its extreme, that position would mean, for example, that if the

Ministry of Health provided funding for internships but stipulated that it would

only pay male interns, that conduct would be immune from review. I am not

prepared to go that far.

[42] Similarly, in Kelso v. The Queen, [1981] 1 SCR 199 at page 207 (Kelso), the

Supreme Court stated (emphasis added):

No one is challenging the general right of the Government to allocate

resources and manpower as it sees fit. But this right is not unlimited. It must

be exercised according to law. The government’s right to allocate

resources cannot override a statute such as the Canadian Human

Rights Act.

[43] Indeed, the Supreme Court has confirmed the quasi-constitutional nature of the

CHRA on many occasions (see for example Robichaud v. Canada (Treasury Board),

[1987] 2 SCR 84 at pp. 89-90 (Robichaud); Canada (House of Commons) v. Vaid, 2005

SCC 30 at para. 81 (Vaid); and, Canada (Canadian Human Rights Commission) v.

Canada (Attorney General), 2011 SCC 53 at para. 62 [Mowat]). It expresses fundamental

values and pursues fundamental goals for our society, such as the fundamental Canadian

value of equality (see s. 2 of the CHRA; see also Mowat at para. 33; and, Canada

(Attorney General) v. Mossop, [1993] 1 SCR 554 at p. 615, per Justice L’Heureux-Dubé).

Therefore, the CHRA is to be interpreted in a broad, liberal, and purposive manner

befitting of this special status (see Mowat at para. 62).

[44] Conversely, any exemption from its provisions must be clearly stated (see Vaid at

para. 81). Again, there is no indication in the CHRA or otherwise that Parliament intended

to exclude funding from scrutiny under the Act, subject of course to the funding being

determined to be a service. In line with Kelso, where the Government of Canada is

involved in the provision of a service, including where the service involves the allocation of

funding, that service and the way resources are allocated pursuant to that service must

respect human rights principles.

[45] Therefore, the Panel dismisses the argument that funding cannot constitute a

“service” within the meaning of section 5 of the CHRA. In any event, as will be examined in

the following pages, the evidence in this case indicates the essential nature of the

“assistance” or “benefit” offered by AANDC for the provision of child and family services on

First Nations reserves is something more than funding.

c. The “assistance” or “benefit” provided by AANDC

[46] AANDC’s FNCFS Program applies to FNCFS Agencies in all provinces and the

Yukon Territory, except Ontario. In Ontario, AANDC has a cost-sharing agreement with

the province for the provision of child and family services on First Nations reserves.

AANDC also has agreements with the provinces of Alberta and British Columbia to provide

child and family services to certain First Nations reserves. A similar agreement is also in

place with the Yukon Territory. The provision of child and family services to First Nations in

the Northwest Territories and Nunavut were not the subject of this Complaint.

[47] The FNCFS Program were developed to address concerns over the lack of child

and family services provided by the provinces to First Nations reserves. Traditionally,

assistance to First Nations children and their families was provided informally, by custom,

within the network of their extended family. However, over time, this informal assistance

became insufficient to meet the needs of children and families living on First Nations

reserves.

[48] The Joint Committees of the Senate and the House of Commons in 1946-1948 and

again in 1959-1961 urged provinces to increase their involvement in providing services to

First Nations people in order to fill in the gaps resulting from disruptions to traditional

patterns of community care. However, provincial governments were reluctant to provide

those services for financial concerns and given federal jurisdiction over “Indians, and lands

reserved for Indians” under section 91(24) of the Constitution Act, 1867. This led to

disparity in the quantity and quality of services provided to First Nations children and

families on reserve from province to province, where some provinces only provided

services if they were compensated by the federal government or only in life-and-death

situations (see Annex, ex. 2 at p. 39 [the NPR]).

[49] In 1965, Canada entered into the agreement with the Province of Ontario to enable

social services, including child and family services, to be extended to First Nations children

and families on reserve. Other provinces entered into bilateral agreements whereby

AANDC would reimburse them for the delivery of child and family services (see Annex, ex.

3 at ss. 1.1.2 - 1.1.3 [2005 FNCFS National Program Manual]).

[50] In the 1970’s and early 1980’s, concerns began being raised over the child and

family services being provided to First Nations by the provinces. Namely, the services

were minimal, not culturally appropriate and there were an alarming number of First

Nations children being removed from their communities. This started a move towards the

creation of community-specific FNCFS Agencies. AANDC funded these agencies through

ad hoc arrangements, but authorities for doing so were unclear and funding was

inconsistent (see the NPR at p. 24).

[51] In 1986, AANDC put a moratorium on the ad hoc arrangements for the

development of FNCFS Agencies. This moratorium remained in place until 1990 when

AANDC implemented the FNCFS Program (see 2005 FNCFS National Program Manual at

s. 1.1.6; and, the NPR at p. 24).

[52] At section 1.3 of the 2005 FNCFS National Program Manual, the objective and

principles of the FNCFS Program are outlined and include:

1.3.2 The primary objective of the FNCFS program is to support culturally

appropriate child and family services for Indian children and families resident

on reserve or Ordinarily Resident On Reserve, in the best interest of the

child, in accordance with the legislation and standards of the reference

province.

[…]

1.3.4 FNCFS will be managed and operated by provincially mandated First

Nations organizations (Recipients), which provide services to First Nations

children and families Ordinarily Resident On Reserve. FNCFS Recipients

will manage the program in accordance with provincial or territorial

legislation and standards. INAC will provide funding in accordance with its

authorities.

1.3.5 The child and family services offered by FNCFS on reserve are to be

culturally relevant and comparable, but not necessarily identical, to those

offered by the reference province or territory to residents living off reserve in

similar circumstances.

1.3.6 Protecting children from neglect and abuse is the main objective of

child and family services. FNCFS also provide services that increase the

ability and capacity of First Nations families to remain together and to

support the needs of First Nations children in their parental homes and

communities.

1.3.7 First Nation agencies and other Recipients will ensure that all

persons Ordinarily Resident On Reserve and within their Catchment Area

receive a full range of child and family services reasonably comparable to

those provided off reserve by the reference province or territory. Funding will

be provided in accordance with INAC authorities.

[53] In 2012, following the filing of the Complaint, the wording of the objective of the

FNCFS Program was modified, but is still similarly described as follows:

1.1 Objective

The FNCFS program provides funding to assist in ensuring the safety and

well-being of First Nations children ordinarily resident on reserve by

supporting culturally appropriate prevention and protection services for First

Nations children and families.

These services are to be provided in accordance with the legislation and

standards of the province or territory of residence and in a manner that is

reasonably comparable to those available to other provincial residents in

similar circumstances within Program Authorities.

(see Annex, ex. 4 at p. 30 [2012 National Social Programs Manual])

[54] The other provincial and territorial agreements for the provision of child and family

services in First Nations communities have a similar purpose to the FNCFS Program. In

Ontario, the Memorandum of Agreement Respecting Welfare Programs for Indians (see

Annex, ex. 5 [the 1965 Agreement]), at page 1, provides:

WHEREAS the 1963 Federal-Provincial Conference, in charting

desirable long-range objectives and policies applicable to the Indian people,

determined that the principal objective was the provision of provincial

services and programs to Indians on the basis that needs in Indian

Communities should be met according to standards applicable in other

communities;

AND WHEREAS Canada and Ontario in working towards this

objective desire to make available to the Indians in the Province the full

range of provincial welfare programs;

[55] In Alberta, the Arrangement for the Funding and Administration of Social Services

(see Annex, ex. 6 [the Alberta Reform Agreement]) at page 1 states:

WHEREAS:

Canada continues to have a special relationship with and interest in

the Indian people of Canada arising from history, treaties, statutes and the

Constitution;

Canada and Alberta recognize and agree that this arrangement will

not prejudice the treaty rights of Indian people, nor alter any obligations of

Canada to Indian people pursuant to treaties, statutes and the Constitution,

including any rights protected by section 35 of the Constitution Act, 1982,

nor affect any self-government rights that may be negotiated in future

constitutional negotiations;

Canada and Alberta recognize that Indians and Indian Families

should be provided with Social Services which take into account their

cultures, values, languages and experiences;

Canada and Alberta are desirous of developing an arrangement in

respect of the funding and administration for Social Services which would be

applicable to Indians in the Province of Alberta; and

Canada and Alberta acknowledge that Indians have aspirations

towards self-government and both therefore wish to support the

establishment, management, and delivery by Indians and Indian

organizations of child and family services and other community-based Social

Services for Indians in Alberta.

[56] At section 3 of the Alberta Reform Agreement, Canada’s role is described as:

3. Canada will by this arrangement and in accordance with Appendix II:

(a) arrange for the delivery of Social Services comparable to

those provided by Alberta to other residents of the Province directly

or through negotiated agreements with Indian Bands, Indian

agencies, Indian organizations, or with Alberta, to persons ordinarily

residing on a Reserve; and

(b) fund Social Services for Indians and Indian Families ordinarily

residing on a Reserve comparable to those provided by Alberta to

other residents of the Province; and in particular, reimburse Alberta

for those Social Services which Alberta delivers to Indians and Indian

Families ordinarily residing on a Reserve.

[57] In British Columbia, the Service Agreement Regarding the Funding of Child

Protection Services of First Nations Children Ordinarily Resident on Reserve (see Annex,

ex. 7 [the BC Service Agreement]), which in 2012 replaced a previous memorandum of

understanding between the two parties (see Annex, ex. 8 [the BC MOU]), provides:

1.0 Vision

Governments working together in British Columbia to ensure that

First Nation children, youth and their families live in strong, healthy

families and sustainable communities where they are connected to

their culture, language and traditions.

DIAND and MCFD will contribute to this vision through a strong focus

on providing funding and effective services respectively, to achieve

meaningful outcomes for vulnerable First Nations children, youth and

their families ordinarily resident on reserve.

[58] Finally, in the Yukon, there is the Funding Agreement (see Annex, ex. 9 [the Yukon

Funding Agreement]). The Yukon Funding Agreement applies to all First Nations children

and families ordinarily resident in the Territory. Pursuant to Schedule “DIAND-3” of the

Yukon Funding Agreement, “[t]he Territory will administer the First Nation Child and Family

Services Program in accordance with DIAND’s First Nation Child and Family Services

Program – National Manual or any other program documentation issued by DIAND as

amended from time to time”.

[59] The history and objectives of the FNCFS Program and other related

provincial/territorial agreements indicate that the benefit or assistance provided through

these activities is to “ensure”, “arrange”, “support” and/or “make available” child and family

services to First Nations children and families on reserve and in the Yukon. Without the

FNCFS Program, related agreements and the funding provided through those instruments,

First Nations children and families on reserve and in the Yukon would not receive the full

range of child and family services provided to other provincial/territorial residents, let alone

services that are suitable to their cultural realities. The activities of the provinces/territory

alone were insufficient to meet the child and family services needs of First Nations children

and families on reserve and in the Yukon.

[60] Therefore, the essential nature of the FNCFS Program is to ensure First Nations

children and families on reserve and in the Yukon receive the “assistance” or “benefit” of

culturally appropriate child and family services to that are reasonably comparable to the

services provided to other provincial residents in similar circumstances. The other related

provincial/territorial agreements provide a similar “assistance” or “benefit”. AANDC extends

this “assistance” or “benefit” to First Nations children and families on reserves and in the

Yukon Territory.

d. First Nations children and families are extended the “assistance” or

“benefit” by AANDC

[61] First Nations and, in particular, First Nations on reserve, are a distinct public.

AANDC extends the assistance or benefit of the FNCFS Program and other related

provincial/territorial agreements to this public through FNCFS Agencies and/or the

provinces/territory.

[62] Section 1.5 of the 2005 FNCFS National Program Manual defines the roles and

responsibilities of AANDC’s headquarters and regional offices in ensuring the safety and

well-being of First Nations children ordinarily resident on reserve. At section 1.5.2, the role

of Headquarters includes: “to provide […] funding on behalf of children and families as

authorized by the approved policy and program authorities”; “to lead in the development of

FNCFS policy”; and, “to provide oversight on program issues related to the FNCFS policy

and to assist regions and First Nations in finding solutions to problems arising in the

regions”.

[63] The role of AANDC’s regional offices is outlined at section 1.5.3 of the 2005 FNCFS

National Program Manual and includes: “to interact with Recipients, Chiefs and Councils,

Headquarters, the reference province or territory”; “to manage the program and funding on

behalf of Canada and to ensure that authorities are followed”; “to assure Headquarters that

the program is operating according to authorities and Canada’s financial management

requirements”; and, “to establish, in cooperation with Recipients, a process for dealing with

disputes over issues relating to the operation of FNCFS”.

[64] The role of the FNCFS Agencies is, among other things, “to deliver the FNCFS

program in accordance with provincial legislation and standards while adhering to the

terms and conditions of their funding agreements” (2005 FNCFS National Program

Manual at section 1.5.4). The provinces mandate, regulate and oversee the FNCFS

Agencies (see 2005 FNCFS National Program Manual at section 1.5.5).

[65] In a more summary fashion, the 2012 National Social Programs Manual defines the

differing roles of AANDC, the provinces/territory and the FNCFS Agencies as follows, at

page 30:

1.2 Provincial Delegations

Child welfare is an area of provincial responsibility whereby each province,

in accordance with their legislation, delegates authority to FNCFS agencies

to manage and deliver child welfare services on reserve.

The FNCFS agencies, delegated by the province, provide protection

services to eligible First Nation children, ordinarily resident on-reserve in

accordance with provincial legislation and standards.

The Program funds FNCFS agencies to deliver protection (out of the home)

and prevention services (in-home) to First Nation children, youth, and

families ordinarily resident on reserve.

[66] AANDC has a “Shared Responsibility for Child Welfare” with the FNCFS Agencies

and the provinces/territory (see the NPR at p.88). It not only provides funding, but policy

and oversight as well. It works as a partner with the FNCFS Agencies and

provinces/territory to deliver adequate child and family services to First Nations on

reserves. It is not a passive player in this partnership, whereby it only provides funding: it

strives to improve outcomes for First Nations children and families. In this regard, Ms.

Sheilagh Murphy, Director General of the Social Policy and Programs Branch of AANDC,

testified about the goal of AANDC social programs:

Well, I mean we have this broad objective or goal to make sure that

First Nations on Reserve -- men, women, and children -- are safe, that they

are healthy and that they have the means to become productive members of

their communities and can contribute to those communities and to Canada

more generally as citizens.

(StenoTran Services Inc.’s transcript of First Nations Child and Family

Caring Society of Canada et al. v. Attorney General of Canada (for the

Minister of Indian and Northern Affairs Canada) (CHRT), Ottawa, Vol. 54 at

pp. 17-18 [Transcript])

[67] The FNCFS Program is one of the social programs meant to achieve this objective.

A “Fact Sheet” developed in October 2006 and previously posted on AANDC’s website

(see Annex, ex. 10 [Fact Sheet]), demonstrates how the department previously held out

the FNCFS Program:

The First Nations Child and Family Services Program is one component

of a suite of Social Programs that addresses the well-being of children and

families. The main objective of the Program is to assist First Nations in

providing access to culturally sensitive child and family services in their

communities, and to ensure that the services provided to them are

comparable to those available to other provincial residents in similar

circumstances.

[68] AANDC works directly with its partners, including First Nations, to ensure the

objectives of the FNCFS Program and other related provincial/territorial agreements are

being met. The 2005 FNCFS Program Manual provides for consultation among AANDC

and First Nations communities with regard to disputes over the program (see ss. 1.5.2-

1.5.3). The Alberta Reform Agreement specifically provides for consultation with First

Nations communities in reviewing the effectiveness of the arrangement (see ss. 13-14).

Similarly, the agreements in British Columbia and the Yukon provide for evaluation and

review by AANDC of the effectiveness of the programs, services and activities it funds

(see ss. 9.2 and 10.1 of the BC Service Agreement; and, s. 13.4.1 of the Yukon Funding

Agreement).

[69] In its previous website Fact Sheet, AANDC held out this partnership as follows:

The Government of Canada is committed to working with First Nations,

provincial/territorial, and federal partners and agencies to implement a

modernized vision of the First Nations Child and Family Services Program, a

program that strives for safe and strong children and youth supported by

healthy parents.

[70] Ms. Murphy provided some insight into the nature of AANDC’s role and partnership

in ensuring adequate child and family services to First Nations reserves:

I mean, we continue to be a funder, we don't espouse to be experts in

the area of child welfare practice. I mean, our role I think has changed in

some ways in that when you look at the progression of this program -- we do

audits and we do evaluations, the Auditor General looked at this program in

2008 and again in 2011. We do need to have – we don't just want to be

writing cheques, we actually do have a genuine interest in making sure that

First Nation Agencies are delivering the program according to the legislation

and regulation, that they have the capacity to do that, that we are getting to

outcomes.

So we are not a passive player in terms of being interested in how

First -- I mean, it's program risk management, it is financial risk

management, to make sure that they are delivering the program that is

within the authorities, that they are paying for the right things that we have

been given the money for.

(Transcript Vol. 54 at pp. 51-52)

[71] As the above indicates, AANDC plays a significant role in the effort to improve

outcomes for First Nations children and families residing on reserve. While AANDC argues

that it does not control services, the manner and extent of AANDC’s funding significantly

shapes the child and family services provided by the FNCFS Agencies and/or the

provinces/territory. This will be further elaborated upon in section B of this Analysis below.

For the purposes of this “service” analysis, suffice it to say AANDC’s involvement in the

FNCFS Program and other related provincial/territorial agreements determines whether

and to what extent child and family services are provided to First Nations reserves and in

the Yukon.

[72] For example, a document entitled First Nations Child and Family Services British

Columbia Transition Plan (Decision by Assistant Deputy Minister – ESDPP) authored by

three AANDC employees and signed by the Assistant Deputy Minister at the time, Ms.

Christine Cram (see Annex, ex. 11), at page 2, explains the ultimate consequence that

AANDC’s funding can have on FNCFS Agencies:

For the majority of these FNCFS agencies, a permanent reduction of

unexpended maintenance balances and the absence of additional resources

for operations on a go forward basis will render them financially unviable and

will likely result in many agency closures.

[73] It is AANDC that created the FNCFS Program and its corresponding funding

formulas, and who negotiated and administers the provincial/territorial agreements. While

the FNCFS Program is set up to work in a tripartite fashion, and the other agreements in a

bilateral fashion, at the end of the day it is AANDC’s involvement that is needed to improve

outcomes for First Nations on reserves and in the Yukon. AANDC holds a considerable

degree of control in this regard. Again, this will be elaborated upon in section B of this

Analysis. However, by way of example, in a document entitled Reform of the FNCFS

Program in Québec (Information for the Deputy Minister), at pages 1-3 (see Annex, ex.

12), two AANDC employees explain the Department’s decision not to transition Québec to

a new funding methodology:

INAC has been in discussion with the First Nations of Québec and Labrador

Health and Social Services Commission (Commission) and Québec’s

Ministry of Health and Social Services since June, 2007 regarding

transitioning the Quebec FNCFS Agencies to an enhanced prevention

approach.

The three parties have developed a Partnership for Results Framework that

outlines the strategic direction, key outcomes and performance indicators for

FNCFS on reserve in Québec. Both the First Nations leadership and the

Province have submitted letters of endorsement for this initiative.

In November of 2007, a number of issues were raised by the First Nations of

Québec and Labrador Health and Social Services Commission. The issues

largely pertain to the overall funding formula that was proposed as a model

for the Québec First Nations agencies (See Annex A for detailed list of

concerns and our proposed action).

A decision was made in December 2007, to move forward in the transition to

the enhanced prevention focused approach without Québec in order to give

the Department time to address First Nations’ concerns with the transition

process.

The Department has not yet informed Québec First Nations and the

Province of Québec of the decision to delay the transition to the Enhanced

Prevention Focused Approach in Québec.

[…]

There is a risk that once the Commission and Québec First Nations are

informed of the decision that was made; they will not want to proceed with

the transition to the new enhanced prevention-focused approach. It is hoped

that the delivery of messaging from a senior official will reassure the First

Nations of the Department’s commitment and enable the working level to

address concerns raised and move the transition forward.

[74] This document is an official position to be adopted by AANDC’s Deputy Minister,

informed by high level AANDC employees. It illustrates that, despite a tripartite relationship

where its partners support a new funding approach, AANDC is the one who controls the

process and makes the final decision in determining the approach to be taken.

[75] Furthermore, AANDC has the power to withhold funds if FNCFS Agencies and/or

the provinces/territory do not comply with its funding requirements. This could result in

agencies closing their doors and, as a consequence, inadequate child and family services

being provided to First Nations children and families on reserves and in the Yukon (see

testimony of William McArthur, Manager, Social Programs, British Columbia Regional

Office, AANDC, Transcript Vol. 64 at pp. 45-47).

[76] All the above indicates a public relationship between AANDC and First Nations

children and families in the provision of child and family services. In sum, AANDC extends

the FNCFS Program and other related provincial/territorial agreements as a partnership,

including with First Nations, to improve outcomes for First Nations children and families on

reserve. Ultimately, through the FNCFS Program, its funding formulas and the related

provincial/territorial agreements, AANDC has a direct impact on the child and family

services provided to First Nations children and families living on reserves and in the Yukon

Territory.

[77] This public relationship between AANDC and First Nations on reserves and in the

Yukon in the provision of child and family services is reinforced by the federal

government’s constitutional responsibilities and its special relationship with Aboriginal

peoples.

e. Section 91(24) of the Constitution Act, 1867

[78] The fact that AANDC does not directly deliver First Nations child and family

services on reserve, but funds the delivery of those services through FNCFS Agencies or

the provincial/territorial governments, does not exempt it from its public mandate and

responsibilities to First Nations people. AANDC argues that child welfare services fall

within provincial jurisdiction and that it only became involved as a matter of social policy to

address concerns that the provinces were not providing the full range of services to First

Nations children and families living on reserves. However, that position does not take into

consideration Parliament’s exclusive legislative authority over “Indians, and lands reserved

for Indians” by virtue of section 91(24) of the Constitution Act, 1867.

[79] In Canada, legislative power is divided between the federal government and the

provincial/territorial governments. As stated by the Supreme Court in Canadian Western

Bank v. Alberta, 2007 SCC 22 at paragraph 22 (Central Western Bank):

…federalism was the legal response of the framers of the Constitution to the

political and cultural realities that existed at Confederation. It thus

represented a legal recognition of the diversity of the original members. The

division of powers, one of the basic components of federalism, was

designed to uphold this diversity within a single nation. Broad powers were

conferred on provincial legislatures, while at the same time Canada’s unity

was ensured by reserving to Parliament powers better exercised in relation

to the country as a whole. Each head of power was assigned to the level of

government best placed to exercise the power. The fundamental objectives

of federalism were, and still are, to reconcile unity with diversity, promote

democratic participation by reserving meaningful powers to the local or

regional level and to foster co-operation among governments and

legislatures for the common good.

[80] The Supreme Court also noted that “the interpretation of these powers and of how

they interrelate must evolve and must be tailored to the changing political and cultural

realities of Canadian society” (Central Western Bank at para. 23). This is referred to as the

“living tree” doctrine.

[81] The legislative powers defined in the Constitution Act, 1867 are deemed to be

exclusive to the extent that, even if Parliament does not legislate in its fields of jurisdiction,

the provinces/territories are not allowed to do so (see Union Colliery Co. of British

Columbia v. Bryden, [1899] A.C. 580 (P.C.) at p. 588). However, the Court has indicated

clearly that this doctrine of inter-jurisdictional immunity is to be construed narrowly, among

other reasons, so as not to allow any legal vacuum. It is used “…to protect that which

makes certain works or undertakings, things (e.g., Aboriginal lands) or persons (e.g.,

Aboriginal peoples and corporations created by the federal Crown) specifically of federal

jurisdiction” (Central Western Bank at para. 41). As also noted in Central Western Bank at

paragraph 42:

Canadian federalism is not simply a matter of legalisms. The Constitution,

though a legal document, serves as a framework for life and for political

action within a federal state, in which the courts have rightly observed the

importance of co-operation among government actors to ensure that

federalism operates flexibly.

[82] Despite the doctrine of inter-jurisdictional immunity, cooperative federalism can

exist in situations where federal and provincial authorities connect. In the recent case of

Quebec (A.G.) v. Canada (A.G.), 2015 SCC 14 (Canadian Firearms Registry), where

Quebec challenged the constitutionality of the federal government’s decision to destroy the

firearms registry, the Supreme Court found itself divided on the scope of cooperative

federalism. Nonetheless, the majority in Canadian Firearms Registry held that cooperative

federalism cannot override or modify the constitutional division of powers:

[17] Cooperative federalism is a concept used to describe the “network of

relationships between the executives of the central and regional

governments [through which] mechanisms are developed, especially fiscal

mechanisms, which allow a continuous redistribution of powers and

resources without recourse to the courts or the amending process […] From

this descriptive concept of cooperative federalism, courts have developed a

legal principle that has been invoked to provide flexibility in separation of

powers doctrines, such as federal paramountcy and interjurisdictional

immunity. It is used to facilitate interlocking federal and provincial legislative

schemes and to avoid unnecessary constraints on provincial legislative

action […] With respect to interjurisdictional immunity, for example, the

principle of cooperative federalism has been relied on to explain and justify

relaxing a rigid, watertight compartments approach to the division of

legislative power that unnecessarily constrains legislative action by the other

order of government: “In the absence of conflicting enactments of the other

level of government, the Court should avoid blocking the application of

measures which are taken to be enacted in furtherance of the public

interest” (Canadian Western Bank, at para. 37).

[18] However, we must also recognize the limits of the principle of

cooperative federalism. The primacy of our written Constitution remains one

of the fundamental tenets of our constitutional framework: Reference re

Secession of Quebec, [1998] 2 S.C.R. 217, at para. 53. This is especially

the case with regard to the division of powers:

. . . the text of the federal constitution as authoritatively

interpreted in the courts remains very important. It tells us

who can act in any event. In other words, constitutionally it

must always be possible in a federal country to ask and

answer the question — What happens if the federal and

provincial governments do not agree about a particular

measure of co-operative action? Then which government and

legislative body has power to do what?

(Emphasis added; footnote omitted)

[83] Instead of legislating in the area of child welfare on First Nations reserves, pursuant

to Parliament’s exclusive legislative authority over “Indians, and lands reserved for

Indians” by virtue of section 91(24) of the Constitution Act, 1867, the federal government

took a programing and funding approach to the issue. It provided for the application of

provincial child welfare legislation and standards for First Nations on reserves through the

enactment of section 88 of the Indian Act. However, this delegation and

programing/funding approach does not diminish AANDC’s constitutional responsibilities. In

a comparable situation argued under the Canadian Charter of Rights and Freedoms (the

Charter), the Supreme Court stated in Eldridge at paragraph 42:

…the Charter applies to private entities in so far as they act in furtherance of

a specific governmental program or policy. In these circumstances, while it

is a private actor that actually implements the program, it is government that

retains responsibility for it. The rationale for this principle is readily apparent.

Just as governments are not permitted to escape Charter scrutiny by

entering into commercial contracts or other “private” arrangements, they

should not be allowed to evade their constitutional responsibilities by

delegating the implementation of their policies and programs to private

entities.

[84] Similarly, AANDC should not be allowed to evade its responsibilities to First Nations

children and families residing on reserve by delegating the implementation of child and

family services to FNCFS Agencies or the provinces/territory. AANDC should not be

allowed to escape the scrutiny of the CHRA because it does not directly deliver child and

family services on reserve.

[85] As explained above, despite not actually delivering the service, AANDC exerts a

significant amount of influence over the provision of those services. Ultimately, it is

AANDC that has the power to remedy inadequacies with the provision of child and family

services and improve outcomes for children and families residing on First Nations reserves

and in the Yukon. This is the assistance or benefit AANDC holds out and intends to

provide to First Nations children and families.

[86] Parliament’s constitutional responsibility towards Aboriginal peoples, in a situation

where a federal department dedicated to Aboriginal affairs oversees a social program and

negotiates and administers agreements for the benefit of First Nations children and

families, reinforces the public relationship between AANDC and First Nations in the

provision of the FNCFS Program and the related provincial/territorial agreements.

f. The Crown’s fiduciary relationship with Aboriginal peoples

[87] Furthermore, AANDC’s commitment to ensuring the safety and well-being of

children and families living on reserves and in Yukon must be considered in the context of

the special relationship between the Crown and Aboriginal peoples.

[88] The Complainants submit that the relationship between the Crown and Aboriginal

peoples is a fiduciary relationship that gives rise to a fiduciary duty in relation to the

FNCFS Program. While AANDC acknowledges there is a general fiduciary relationship

between the federal Crown and the Aboriginal peoples of Canada, it argues that fiduciary

duty principles are not applicable to the Complaint.

[89] It is well established that in all its dealings with Aboriginal peoples, the Crown must

act honourably (see Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73,

at para. 16 [Haida Nation]). It is also well established that there exists a special

relationship between the Crown and the Aboriginal peoples of Canada, qualified as a sui

generis relationship. This special relationship stems from the fact that Aboriginal peoples

were already here when the Europeans arrived in North America (see R. v. Van der Peet,

[1996] 2 SCR 507, at para. 30).

[90] In 1950, in a case about the application of section 51 of the Indian Act, 1906 and

concerning reserve lands, the Supreme Court stated that the care and welfare of First

Nations people are a “political trust of the highest obligation”:

The language of the statute embodies the accepted view that these

aborigenes are, in effect, wards of the State, whose care and welfare are a

political trust of the highest obligation. For that reason, every such dealing

with their privileges must bear the imprint of governmental approval, and it

would be beyond the power of the Governor in Council to transfer that

responsibility to the Superintendent General.

(St. Ann's Island Shooting And Fishing Club v. The King, [1950] SCR 211 at

p. 219 [per Rand J.])

[91] However, this “political trust” was not enforceable by the courts. This changed when

the Supreme Court moved away from the political trust doctrine. In the context of a case

dealing with the sale of surrendered land at conditions quite different from those agreed to

at the time of the surrender, the Supreme Court qualified the relationship between the

Crown and Aboriginal peoples as a fiduciary relationship in Guerin v. The Queen, [1984] 2

SCR.335, at page 376 (Guerin):

The fiduciary relationship between the Crown and the Indians has its roots in

the concept of aboriginal, native or Indian title. The fact that Indian Bands

have a certain interest in lands does not, however, in itself give rise to a

fiduciary relationship between the Indians and the Crown. The conclusion

that the Crown is a fiduciary depends upon the further proposition that the

Indian interest in the land is inalienable except upon surrender to the Crown.

[92] This special relationship is also rooted in the large degree of discretionary control

assumed by the Crown over the lives and interests of Aboriginal peoples in Canada:

English law, which ultimately came to govern aboriginal rights, accepted that

the aboriginal peoples possessed pre-existing laws and interests, and

recognized their continuance in the absence of extinguishment, by cession,

conquest, or legislation: see, e.g., the Royal Proclamation of 1763, R.S.C.

1985, App. II, No. 1, and R. v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1103. At

the same time, however, the Crown asserted that sovereignty over the land,

and ownership of its underlying title, vested in the

Crown: Sparrow, supra. With this assertion arose an obligation to treat

aboriginal peoples fairly and honourably, and to protect them from

exploitation, a duty characterized as “fiduciary” in Guerin v. The Queen,

[1984] 2 S.C.R. 335.

(Mitchell v. M.N.R., 2001 SCC 33, at para. 9)

[93] After the entry into force of section 35 of the Constitution Act, 1982, in R. v.

Sparrow, [1990] 1 SCR 1075, at page 1108, the Supreme Court further confirmed and

defined the duty of the Crown to act in a fiduciary capacity as the “general guiding

principle” for section 35:

In our opinion, Guerin, together with R. v. Taylor and Williams (1981), 34

O.R. (2d) 360, ground a general guiding principle for s. 35(1). That is, the

Government has the responsibility to act in a fiduciary capacity with respect

to aboriginal peoples. The relationship between the Government and

aboriginals is trust-like, rather than adversarial and, contemporary

recognition and affirmation of aboriginal rights must be defined in light of this

historic relationship.

[94] This general guiding principle is not limited to section 35(1) of the Constitution Act,

1982, but has broader application as confirmed by the Supreme Court in Wewaykum

Indian Band v. Canada, 2002 SCC 79, at paragraph 79 (Wewaykum).

[95] First Nations children and families on reserves are in a fiduciary relationship with

AANDC. In the provision of the FNCFS Program, its corresponding funding formulas and

the other related provincial/territorial agreements, “the degree of economic, social and

proprietary control and discretion asserted by the Crown” leaves First Nations children and

families “…vulnerable to the risks of government misconduct or ineptitude” (Wewaykum at

para. 80). This fiduciary relationship must form part of the context of the Panel’s analysis,

along with the corollary principle that in all its dealings with Aboriginal peoples, the honour

of the Crown is always at stake. As affirmed by the Supreme Court in Haida Nation, at

paragraph 17:

Nothing less is required if we are to achieve “the reconciliation of the pre-

existence of aboriginal societies with the sovereignty of the Crown”:

Delgamuukw, supra, at para. 186, quoting Van der Peet, supra, at para. 31.

[96] That being said, it is also well established that this fiduciary relationship does not

always give rise to fiduciary obligations. While the fiduciary relationship may be described

as general in nature, requiring that the Crown act in the best interest of Aboriginal peoples,

fiduciary obligations are specific, related to precise aboriginal interests:

This sui generis relationship had its positive aspects in protecting the

interests of aboriginal peoples historically […]

But there are limits. The appellants seemed at times to invoke the “fiduciary

duty” as a source of plenary Crown liability covering all aspects of the

Crown-Indian band relationship. This overshoots the mark. The fiduciary

duty imposed on the Crown does not exist at large but in relation to specific

Indian interests.

(Wewaykum at paras. 80-81)

[97] The Supreme Court has relied on private law concepts to define circumstances that

can give rise to a fiduciary obligation because, although the Crown’s obligation is not a

private law duty, it is nonetheless in the nature of a private duty, susceptible of giving rise

to enforceable obligations :

It should be noted that fiduciary duties generally arise only with regard to

obligations originating in a private law context. Public law duties, the

performance of which requires the exercise of discretion, do not typically

give rise to a fiduciary relationship. As the "political trust" cases indicate, the

Crown is not normally viewed as a fiduciary in the exercise of its legislative

or administrative function. The mere fact, however, that it is the Crown which

is obligated to act on the Indians' behalf does not of itself remove the

Crown's obligation from the scope of the fiduciary principle. As was pointed

out earlier, the Indians' interest in land is an independent legal interest. It is

not a creation of either the legislative or executive branches of government.

The Crown's obligation to the Indians with respect to that interest is therefore

not a public law duty. While it is not a private law duty in the strict sense

either, it is nonetheless in the nature of a private law duty. Therefore, in this

sui generis relationship, it is not improper to regard the Crown as a fiduciary.

(Guerin at p. 385)

[98] Guerin stands for the principle that a fiduciary obligation on the Crown towards

Aboriginal peoples arises from the fact that their interest in land is inalienable except upon

surrender to the Crown. In another case where the Supreme Court found that the Crown

has a fiduciary obligation to prevent exploitative bargains in the context of a surrender of

reserve land, in Blueberry River Indian Band v. Canada (Department of Indian Affairs and

Northern Development), [1995] 4 SCR 344 at paragraph 38, it referred to private law

criteria to define a situation that could give rise to a fiduciary obligation:

Generally speaking, a fiduciary obligation arises where one person

possesses unilateral power or discretion on a matter affecting a second

"peculiarly vulnerable" person: see Frame v. Smith, [1987] 2 S.C.R.

99; Norberg v. Wynrib, [1992] 2 S.C.R. 226; and Hodgkinson v. Simms,

[1994] 3 S.C.R. 377. The vulnerable party is in the power of the party

possessing the power or discretion, who is in turn obligated to exercise that

power or discretion solely for the benefit of the vulnerable party. A person

cedes (or more often finds himself in the situation where someone else has

ceded for him) his power over a matter to another person. The person who

has ceded power trusts the person to whom power is ceded to exercise the

power with loyalty and care. This is the notion at the heart of the fiduciary

obligation.

[99] The present case does not raise land related issues. The Panel is aware that

fiduciary obligations have yet to be recognized by the Supreme Court in relation to

Aboriginal interests other than land outside the framework of section 35(1) of the

Constitution Act, 1982 (see Wewaykum at para. 81). However, the Panel is also aware

that in Frame v. Smith, [1987] 2 SCR 99, at paragraph 60, Wilson J. held that fiduciary

duties did not apply only to legal and economic interests but could extend to human and

personal interests:

To deny relief because of the nature of the interest involved, to afford

protection to material interests but not to human and personal interests

would, it seems to me, be arbitrary in the extreme.

[100] In fact, in Wewaykum the Supreme Court noted that since the Guerin case the

existence of a fiduciary obligation has been argued in a number of cases raising a variety

of issues (see at para. 82). While it did not comment on these cases, the Court in

Wewaykum, at paragraph 83, did state that a case by case approach would have to focus

on the specific interest at issue and whether or not the Crown had assumed discretionary

control giving rise to a fiduciary obligation:

I think it desirable for the Court to affirm the principle, already mentioned,

that not all obligations existing between the parties to a fiduciary relationship

are themselves fiduciary in nature […], and that this principle applies to the

relationship between the Crown and aboriginal peoples. It is necessary,

then, to focus on the particular obligation or interest that is the subject matter

of the particular dispute and whether or not the Crown had assumed

discretionary control in relation thereto sufficient to ground a fiduciary

obligation.

[101] Recent case law from the Supreme Court confirms that a fiduciary obligation may

also arise from an undertaking. The following conditions are to be met:

In summary, for an ad hoc fiduciary duty to arise, the claimant must show, in

addition to the vulnerability arising from the relationship as described by

Wilson J. in Frame: (1) an undertaking by the alleged fiduciary to act in the

best interests of the alleged beneficiary or beneficiaries; (2) a defined person

or class of persons vulnerable to a fiduciary’s control (the beneficiary or

beneficiaries); and (3) a legal or substantial practical interest of the

beneficiary or beneficiaries that stands to be adversely affected by the

alleged fiduciary’s exercise of discretion or control.

(Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, at para. 36

(Elder Advocates Society); see also Manitoba Metis Federation

Inc. v. Canada (Attorney General), 2013 SCC 14, at para. 50 [Manitoba

Metis Federation])

[102] AANDC argues that there must be an undertaking of loyalty by the Crown to the

point of forsaking the interests of all others in favour of those of the beneficiaries for a

fiduciary obligation to apply (see Elder Advocates Society at para. 31; and, Manitoba Metis

Federation at para. 61).

[103] However, in Elder Advocates Society, at paragraph 48, it should be noted that the

Supreme Court held that the necessary undertaking was met with respect to Aboriginal

peoples:

In sum, while it is not impossible to meet the requirement of an undertaking

by a government actor, it will be rare. The necessary undertaking is met with

respect to Aboriginal peoples by clear government commitments from the

Royal Proclamation of 1763 (reproduced in R.S.C. 1985, App. II, No. 1) to

the Constitution Act, 1982 and considerations akin to those found in the

private sphere.

[104] In view of the above and the evidence presented on this issue, the relationship

between the federal government and First Nations people for the provision of child and

family services on reserve could give rise to a fiduciary obligation on the part of the Crown.

Arguably the three criteria outlined in Elder Advocates Society have been met in this case.

[105] The FNCFS Program and other related provincial/territorial agreements were

undertaken and are controlled by the Crown. This undertaking is explicitly intended to be in

the best interests of the First Nations beneficiaries, including that the "best interests of the

child” and the safety and well-being of First Nations children are objectives of the program.

The Crown has discretionary control over the FNCFS Program through policy and other

administrative directives. It also exercises discretionary control over the application of the

other related provincial/territorial agreements as First Nations are not party to their

negotiation. The FNCFS Program and other related provincial/territorial agreements also

have a direct impact on a vulnerable category of people: First Nations children and families

in need of child and family support services on reserve.

[106] The legal and substantial practical interests of First Nations children, families, and

communities stand to be adversely affected by AANDC's discretion and control over the

FNCFS Program and other related provincial/territorial agreements. The Panel agrees with

the AFN, Caring Society and the COO that the specific Aboriginal interests that stand to be

adversely affected in this case are, namely, indigenous cultures and languages and their

transmission from one generation to the other. Those interests are also protected by

section 35 of the Constitution Act, 1982. The transmission of indigenous languages and

cultures is a generic Aboriginal right possessed by all First Nations children and their

families. Indeed, the Supreme Court highlighted the importance of cultural transmission in

R. v. Côté, [1996] 3 SCR 139 at paragraph 56:

In the aboriginal tradition, societal practices and customs are passed from

one generation to the next by means of oral description and actual

demonstration. As such, to ensure the continuity of aboriginal practices,

customs and traditions, a substantive aboriginal right will normally include

the incidental right to teach such a practice, custom and tradition to a

younger generation.

[107] Similarly, in Doucet

‑

Boudreau v. Nova Scotia (Minister of Education), 2003 SCC

62 at paragraph 26 (Doucet-Boudreau), the Supreme Court stated the following with

regard to the relation between language and culture:

This Court has, on a number of occasions, observed the close link between

language and culture. In Mahe, at p. 362, Dickson C.J. stated:

. . . any broad guarantee of language rights, especially in the

context of education, cannot be separated from a concern for

the culture associated with the language. Language is more

than a mere means of communication, it is part and parcel of

the identity and culture of the people speaking it. It is the

means by which individuals understand themselves and the

world around them.

[108] In certifying a class action based on the operation of the child welfare system on

reserve in Ontario, Justice Belobaba on the Ontario Superior Court of Justice, in Brown v.

Canada (AG), 2013 ONSC 5637 at paragraph 44, expressed his views on the existence of

a fiduciary duty based on the discretionary Crown control over Aboriginal interests in

culture:

it is at least arguable that a fiduciary duty arose on the facts herein for these

reasons: (i) the Federal Crown exercised or assumed discretionary control

over a specific aboriginal interest (i.e. culture and identity) by entering into

the 1965 Agreement; (ii) without taking any steps to protect the culture and

identity of the on-reserve children; (iii) who under federal common law were

“wards of the state whose care and welfare are a political trust of the highest

obligation”; and (iv) who were potentially being exposed to a provincial child

welfare regime that could place them in non-aboriginal homes.

[109] The Panel agrees with the Caring Society that it is not necessary for the purposes

of this case to further define the contours of Aboriginal rights in language and culture or a

fiduciary duty related thereto. It is enough to say that, by virtue of being protected by

section 35 of the Constitution Act, 1982 indigenous cultures and languages must be

considered as “specific indigenous interests” which may trigger a fiduciary duty.

Accordingly, where the government exercises its discretion in a way that disregards

indigenous cultures and languages and hampers their transmission, it can breach its

fiduciary duty. However, such a finding is not necessary to make a determination

regarding whether or not AANDC provides a service; or, more broadly, to determine

whether there has been a discriminatory practice under the CHRA.

[110] Suffice it to say, AANDC’s development of the FNCFS Program and related

agreements, along with its public statements thereon, indicate an undertaking on the part

of the Crown to act in the best interests of First Nations children and families to ensure the

provision of adequate and culturally appropriate child welfare services on reserve and in

the Yukon. Whether or not that gives rise to a fiduciary obligation, the existence of the

fiduciary relationship between the Crown and Aboriginal peoples is a general guiding

principle for the analysis of any government action concerning Aboriginal peoples. In the

current “services” analysis under the CHRA, it informs and reinforces the public nature of

the relationship between AANDC and First Nations on reserves and in the Yukon in the

provision of the FNCFS Program and other provincial/territorial agreements.

iii. Summary of findings

[111] Overall, the Panel finds the evidence indicates the FNCFS Program and other

related provincial/territorial agreements are held out by AANDC as assistance or a benefit

that it provides to First Nations people. The FNCFS Program and other provincial/territorial

agreements were created and negotiated on behalf of First Nations by AANDC, a federal

government department with the mandate and mission to do so. First Nations are a distinct

public, served by AANDC in the context of a unique constitutional and fiduciary

relationship. AANDC has undertaken to ensure First Nations living on reserve receive

culturally appropriate child and family services that are reasonably comparable to the

services provided to other provincial residents in similar circumstances. Therefore, the

Panel finds there is a clear public nature and relationship with First Nations in AANDC’s

provision of the FNCFS Program and other related provincial/territorial agreements.

[112] This finding is similar to the one made by the Federal Court in Attawapiskat First

Nation v. Canada, 2012 FC 948. In discussing the nature of funding agreements similar to

the ones at issue in the present Complaint, the Federal Court stated at paragraph 59:

the [Attawapiskat First Nation] relies on funding from the government

through the [Comprehensive Funding Agreement] to provide essential

services to its members and as a result, the [Comprehensive Funding

Agreement] is essentially an adhesion contract imposed on the

[Attawapiskat First Nation] as a condition of receiving funding despite the

fact that the [Attawapiskat First Nation] consents to the [Comprehensive

Funding Agreement]. There is no evidence of real negotiation. The power

imbalance between government and this band dependent for its sustenance

on the [Comprehensive Funding Agreement] confirms the public nature and

adhesion quality of the [Comprehensive Funding Agreement].

[113] As a result, and for the reasons above, the Panel finds AANDC provides a service

through the FNCFS Program and other related provincial/territorial agreements. In the

following pages, the Panel will examine the impacts of AANDC’s service and, specifically,

how AANDC’s method of funding the FNCFS Program and related provincial/territorial

agreements significantly controls the provision of First Nations children and family services

on reserve and in the Yukon to the detriment of First Nations children and families.

B. First Nations are adversely impacted by the services provided by AANDC

and, in some cases, denied services as a result of AANDC’s involvement

[114] Before dealing with how the FNCFS Program and other related provincial/territorial

agreements are funded, it is helpful to have a basic understanding of how child welfare

services are provided in Canada. Dr. Cindy Blackstock, Executive Director of the Caring

Society, provided helpful testimony in this regard (see Transcript Vol. 1 at pp. 110, 112,

124-129, 132-136, 138-142 and 151; see also Annex, ex. 1).

i. General child welfare principles

[115] As indicated earlier, child welfare in Canada includes a range of services designed

to protect children from abuse and neglect and to support families so that they can stay

together. The main objective of social workers is to do all they can to keep children safely

within their homes and communities. There are two major streams of child welfare

services: prevention and protection.

[116] Prevention services are divided into three main categories: primary, secondary and

tertiary. Primary prevention services are aimed at the community as a whole. They include

the ongoing promotion of public awareness and education on the healthy family and how

to prevent or respond to child maltreatment. Secondary prevention services are triggered

when concerns begin to arise and early intervention could help avoid a crisis. Tertiary

prevention services target specific families when a crisis or risks to a child have been

identified. As opposed to separating a child from his or her family, tertiary prevention

services are designed to be “least disruptive measures” that try and mitigate the risks of

separating a child from his or her family. Early interventions to provide family support can

be quite successful in keeping children safely within their family environment, and

provincial legislation requires that least disruptive measures be exhausted before a child is

placed in care.

[117] Protection services are triggered when the safety or the well-being of a child is

considered to be compromised. If the child cannot live safely in the family home while

measures are taken with the family to remedy the situation, child welfare workers will make

arrangements for temporary or permanent placement of the child in another home where

he or she can be cared for. This is called placing the child “in care”. The first choice for a

caregiver in this situation would usually be a kin connection or a foster family. Kinship care

includes children placed out-of-home in the care of the extended family, individuals

emotionally connected to the child, or in a family of a similar religious or ethno-cultural

background.

[118] The child welfare system is typically called into action when someone has concerns

about the safety or well-being of a child and reports these concerns to a social worker. The

first step is for the social worker to do a preliminary assessment of the report in order to

decide whether further investigation is called for. If the social worker concludes that an

investigation is warranted, he or she can meet with family members and can interview the

child. The child is not removed from the home during the investigation unless his or her

safety is at risk. The social worker will develop a plan of action for the child and his or her

family in coordination with the child’s extended family and professionals such as teachers,

early child care workers and cultural workers. A whole range of services may include

personal counselling, mentoring by an Elder, access to childhood development programs

or to programs designed to enhance the homemaking and parental skills of the caregiver.

[119] There are circumstances, however, when the risk to the child’s safety or well-being

is too great to be mitigated at home, and the child cannot safely remain in his or her family

environment. In such circumstances, most provincial statutes require that a social worker

first look at the extended family to see if there is an aunt, an uncle or a grandparent who

can care for the child. It is only when there is no other solution that a child should be

removed from his or her family and placed in foster care under a temporary custody order.

Following the issuance of a temporary custody order, the social worker must appear in

court to explain the placement and the plan of care for the child and support of the family.

The temporary custody order can be renewed and eventually, when all efforts have failed,

the child may be placed in permanent care.

[120] The major categories of child maltreatment are: sexual, physical, or emotional

abuse, or exposure thereto, and neglect. For First Nations, the main source of child

maltreatment is neglect in the form of a failure to supervise and failure to meet basic

needs. Poverty, poor housing and substance abuse are common risk factors on reserves

that call for early counselling and support services for children and families to avoid the

intervention of child protection services.

ii. The allocation of funding for First Nations child and family services

[121] AANDC funds child and family services on reserves and in the Yukon in various

ways. At the time of the complaint, there were 105 FNCFS Agencies in the 10 provinces

across Canada (104 at the time of the hearing). The FNCFS Program, applies to most of

the FNCFS Agencies in Canada, uses two funding formulas: Directive 20-1 and the

Enhanced Prevention Focused Approach (the EPFA). In Ontario, funding is provided

through the 1965 Agreement. In certain parts of Alberta and British Columbia, funding is

provided through the Alberta Reform Agreement and the BC MOU and, since 2012, the

BC Service Agreement. Finally, in the Yukon funding is allocated pursuant to the Yukon

Funding Agreement (see testimony of Ms. Barbara D’Amico, Senior Policy Analyst at the

Social and Policy Branch of AANDC, Transcript Vol. 50 at p. 141). Each method of funding

is addressed in turn.

a. The FNCFS Program

[122] Beginning with the FNCFS Program, AANDC’s authorities require that, before

entering into a funding arrangement with an FNCFS Agency (or Recipient), an agreement

be in place between the province or territory and the agency that meets the requirements

of AANDC’s national FNCFS Policy (see 2005 FNCFS National Program Manual at s.

4.1). Thereafter, funding is provided through a comprehensive funding arrangement

(CFA), which is “…a program-budgeted funding agreement that [AANDC] enters into with

Recipients…” (2005 FNCFS National Program Manual at s. 4.4.1). According to the 2005

FNCFS National Program Manual at section 4.4.1:

[A CFA] contains components funded by means of a Contribution, which is a

reimbursement of eligible expenses and Flexible Transfer Payments, which

are formula funded. Surpluses from the Flexible Transfer Payment may be

retained by the Recipient provided the terms and conditions of the CFA have

been fulfilled. The FNCFS program expects that all surplus money will be

used for FNCFS. It is also expected that Recipients will absorb any deficits.

[123] Funding for FNCFS Agencies is determined in accordance with AANDC

“authorities” (see 2005 FNCFS National Program Manual at s. 1.4). Those “authorities” are

obtained from the federal government through Cabinet and Treasury Board and “…are

reflected in the […] Program Directive” (2005 FNCFS National Program Manual at s.

1.4.5). The Program Directive, also called Directive 20-1 and found at Appendix A of the

2005 FNCFS National Program Manual, “…interprets the authorities and places them into

a useable context” (2005 FNCFS National Program Manual at s. 1.4.5). Directive 20-1 is

AANDC’s “…national policy statement on FNCFS” (see definition of “Program Directive

20-1 CHAPTER 5 (Program Directive)”, 2005 FNCFS National Program Manual at s. 7, p.

51). It is also:

…a blueprint on how INAC will administer the FNCFS program from a

national perspective, it is also intended to be a teaching document, for new

staff at both INAC Headquarters and Regions. The combination of the

national manual and the regional manuals should create a clear picture of

INAC’s role in FNCFS in Canada

(2005 FNCFS National Program Manual at Introduction, p. 2)

[124] Prior to 2007, around the time of the Complaint, all provinces and the Yukon,

except Ontario, functioned under Directive 20-1. Currently, New Brunswick, British

Columbia, Newfoundland and Labrador and the Yukon are subject to the application of

Directive 20-1.

[125] In line with the FNCFS Program, the principles of Directive 20-1 include a

commitment to “…expanding First Nations Child and Family Services on reserve to a level

comparable to the services provided off reserve in similar circumstances […] in

accordance with the applicable provincial child and family services legislation” (see 2005

FNCFS National Program Manual at Appendix A, ss. 6.1 and 6.6). Furthermore, Directive

20-1 supports “…the creation of First Nations designed, controlled and managed services”

(see 2005 FNCFS National Program Manual at Appendix A, s. 6.2). Under Directive 20-1,

funding for FNCFS agencies is determined through two separate categories: operations

and maintenance.

[126] Operational funding is intended to cover operations and administration costs for

such items as salaries and benefits for agency staff, travel expenses, staff training, legal

services, family support services and agency administration, including rent and office

expenditures (see 2005 FNCFS National Program Manual at s.2.2.2 and at Appendix A, s.

19.1). It is calculated using a formula based on the on-reserve population of children aged

0-18 as reported annually by First Nations bands across Canada. The calculation of the

operations funding is done annually by AANDC as of December 31 of each year, based on

the population statistics of the preceding year (see 2005 FNCFS National Program Manual

at s. 3.2). FNCFS Agencies are eligible to receive a fixed administrative allocation

pursuant to the following formula:

A fixed amount $143,158.84 per organization + $10,713.59 per member

band + $726.91 per child (0-18 years) + $9,235.23 x average remoteness

factor + $8,865.90 per member band x average remoteness factor + $73.65

per child x average remoteness factor + actual costs of the per diem rates of

foster homes, group homes and institutions established by the province or

territory.

(see 2005 FNCFS National Program Manual at Appendix A, s. 19.1(a); see

also 2005 FNCFS National Program Manual at ss. 3.2.1-3.2.3)

[127] The adjustment factor is multiplied by $9,235.23, the remoteness factor is multiplied

by $8,865.90 times the number of bands within the agency’s catchment area and the child

population (0 to 18 years) is multiplied by $73.65 times the remoteness factor (see 2005

FNCFS National Program Manual at s. 3.2.3). The remoteness factor takes into account

such things as the distance between the First Nation and a service centre, road access,

and availability of services. It can range from 0 to 1.9. If multiple communities are served

by an FNCFS Agency, the remoteness factors of each of the communities is averaged to

come to the ‘average remoteness factor’ (see testimony of W. McArthur, Transcript Vol. 63

at pp. 28-29).

[128] The amounts in the operational funding formula are based on certain assumptions

emanating from the time it was put in place in the early 1990’s:

 On average, 6% of the on reserve child population is in care;

 On average, 20% of families on reserve require child and family services or are

classified as multi-problem families;

 One child care worker and one family support worker for every 20 children in care;

 One supervisor and one support staff for every 5 workers;

 Wages based on average salaries in Ontario and Manitoba

(see Annex, ex. 13 at pp. 7-8 [Wen:De Report One]).

[129] According to Ms. D’Amico, the 6% assumption regarding children-in-care is based

on the 2007 national average and it provides FNCFS Agencies with stability. That is, even

if an agency has or later achieves a smaller percentage of children-in-care, their budget is

not affected. The 20% of families requiring services is determined using an assumption

that there are on-average three children per family. By dividing the total on-reserve child

population by three, AANDC arrives at the number of families it believes would normally

be served by the applicable FNCFS Agency. It then takes 20% of that population

calculation as a variable in determining the FNCFS Agency’s budget (see testimony of B.

D’Amico, Transcript Vol. 51 at pp. 25-31).

[130] In the first four years of operation of a new FNCFS Agency, the funding formula is

gradually implemented at a rate of 75% in the first year, 85% the second year, 95% the

third year and 100% in the fourth year [see 2005 FNCFS National Program Manual at

section 3.2.1 and Appendix A, s. 19.1(c)]. Furthermore, for agencies that serve less than

1,000 children, the fixed maximum amount of $143,158.84 is decreased as follows:

$71,579.43 (501-800 children); $35,789.10 (251-500); and, regions with a child population

of 0 to 250 receive no administrative allocation [see 2005 FNCFS National Program

Manual at Appendix A, s. 19.2(b)]. However, in British Columbia, the full allocation for

population begins with at least 801 children (see testimony of W. McArthur, Transcript Vol.

63 at p. 23).

[131] Maintenance funding is intended to cover the actual costs of eligible expenditures

for maintaining a First Nations child ordinarily resident on reserve in alternate care out of

parental home. Children must be taken into care in accordance with provincially or

territorially approved legislation, standards and rates for foster home, group home and

institutional care. FNCFS Agencies are required to submit monthly invoices for children in

care out of the parental home and are to be reimbursed on the basis of actual

expenditures (see 2005 FNCFS National Program Manual at ss. 3.3.1-3.3.2 and Appendix

A, s. 20.1).

[132] Until 2011, FNCFS Agencies in British Columbia were funded on a per diem

structure, but have since transitioned to reimbursement for maintenance expenses based

on actual costs. However, if funding based on actuals provides for less funding, the

previous per diem funding levels are maintained as part of a plan to eventually transition

FNCFS Agencies in that province to the EPFA (see testimony of W. McArthur, Transcript

Vol. 63 at pp. 35-36; and, testimony of B. D’Amico, Transcript Vol. 51 at pp. 150-151).

[133] FNCFS Agencies also have the option of applying for “flexible” funding for

maintenance under Directive 20-1 (see 2005 FNCFS National Program Manual at

Appendix A, s. 20.2). This option allows agencies to receive a payment of their total

operational funding allocation, along with a historically based estimate of their

maintenance costs. This flexible funding option is meant to provide FNCFS Agencies with

increased flexibility to re-profile maintenance funding to provide increased resources for

prevention. To access this flexible funding option an FNCFS Agency must undergo an

assessment and receive approval from AANDC’s regional office, along with approval from

AANDC Headquarters. In 2006, only 7 out of 105 FNCFS Agencies utilized the flexible

funding option (see Annex, ex. 14 at p. 5 [2007 Evaluation of the FNCFS Program]).

[134] The monetary amounts reflected in Directive 20-1 reflect 1995-1996 values and

have not been significantly modified since that time, despite the directive providing for

them to be increased by 2% every year, subject to the availability of resources (see 2005

FNCFS National Program Manual at Appendix A, s. 22.00; and, testimony of W. McArthur,

Transcript Vol. 64 at pp. 3-4). Furthermore, maximum funding by AANDC is 100 percent of

eligible costs. FNCFS Agencies may be required to repay funds to AANDC if their total

funding from all sources, including from voluntary sector sources, exceeds eligible

expenditures and when AANDC’s contribution thereto is in excess of $100,000 (see 2012

National Social Programs Manual at p. 10, s. 11.0 [the stacking provisions]).

[135] Since 2005, an 8.24 percent increase has been applied to each FNCFS Agency’s

total allocation under Directive 20-1 (see testimony of W. McArthur, Transcript Vol. 63 at p.

32; and, testimony of B. D’Amico, Transcript Vol. 51 at p. 17). Additional funding is also

provided in New Brunswick for the Head Start program and for in-home care as a

precursor to the transition to the EPFA (see testimony of B. D’Amico, Transcript Vol. 51 at

pp. 169-173).

[136] That is, since 2007, AANDC has transitioned the funding model for certain

provinces under the FNCFS Program from Directive 20-1 to the EPFA. An agreement was

reached to implement the EPFA in Alberta and Saskatchewan in 2007, Nova Scotia in

2008, Québec in 2009, Prince Edward Island in 2009 and Manitoba in 2010.

[137] Under EPFA, prevention is included as a third funding stream to operations and

maintenance. Prevention services are “…designed to reduce the incidence of family

dysfunction and breakdown or crisis and to reduce the need to take children into Alternate

Care or the amount of time a child remains in Alternate Care” (2012 National Social

Programs Manual at p. 33, s. 2.1.17; see also p. 38, s. 4.4.1). Eligible expenses under this

prevention funding stream include: salaries and benefits for prevention and resource

workers, travel, paraprofessional services, family support services, mentoring services for

children, home management services, and non-medical counselling services not covered

by other funding sources (see 2012 National Social Programs Manual at p. 38, s. 4.4.2).

[138] Implementation of the EPFA begins with tri-partite discussions between the

province, First Nation community and AANDC. From the tripartite discussions, a Tripartite

Accountability Framework is developed outlining the goals, objectives, performance

indicators, and roles and responsibilities of the parties. Using the Tripartite Accountability

Framework as a benchmark, the FNCFS Agency prepares an initial 5-year business plan,

which is subject to AANDC review and acceptance by the province. The business plan is a

pre-requisite in order to receive funding under the EPFA (see 2012 National Social

Programs Manual at p. 37, s. 4.3; see also testimony of B. D’Amico, Transcript Vol. 50 at

pp. 146-152).

[139] Once the framework and business plan are in place, the costing discussions take

place. According to the 2012 National Social Programs Manual, funding for operations and

prevention services are based on a cost-model developed at regional tri-partite tables and

are consistent with reasonable comparability to the respective province within AANDC’s

program authority (see 2012 National Social Programs Manual at p. 38, s. 4.4.1). That is,

the EPFA is to be tailored to each jurisdiction using a formula made-up of line-items that

are identified at tripartite tables. The determination of staffing numbers and which line

items to include in the formula, and the dollar values assigned to each of those line items,

is based on variables provided by the province (for example staffing ratios, caseload

ratios, and salary grades). Those amounts are then worked into AANDC’s operations and

prevention cost-model. A cost-model is utilized because the provinces do not always use a

funding formula that AANDC can replicate (see testimony of B. D’Amico, Transcript Vol. 50

at pp. 56, 150-151; and, Vol. 51 at pp.18-66, 153-154).

[140] Similar to Directive 20-1, the formula for the EPFA is based on the child population

served by the FNCFS Agency and the assumptions that a minimum of 20% of families are

in need of child and family services and that 6% of children are in care (although in

Manitoba an assumption of 7% of children in care is used in the EPFA formula). The

prevention focused services component of the EPFA formula is largely based on the

salaries needed for service delivery staff, where the amount of staff needed is calculated

based on the assumed amount of children in care and families in need of services. The

estimated amount of children in care is calculated by multiplying the child population

served by the FNCFS Agency by the assumed percentage of children in care. As

mentioned above, the number of families in need of services is calculated by taking the

total child population served by the FNCFS Agency, dividing it by the average amount of

children per First Nation family (3), and then multiplying that number by the assumed

percentage of families in need of prevention services (20%) (see testimony of B. D’Amico,

Transcript Vol. 51 at pp. 24-31).

[141] The calculated estimates of children in care and families in need of care are then

used to determine the amount of service delivery staff needed for the FNCFS Agency.

Similar to Directive 20-1, provincial ratios in terms of social workers per children in care or

families in need, supervisors per amount of socials workers, and support staff per amount

of workers are used to estimate the staff needed for specific positions. The average

salaries for those positions within the province, at the time EPFA is implemented, then

make up the bulk of funding provided for the prevention focused services component of

the funding formula (see testimony of B. D’Amico, Transcript Vol. 51 at pp. 32-79). As Ms.

Murphy explained:

We are from a funding perspective, so how the provinces fund is what

we want to stay comparable with, not the types of services that the province

funds -- or provides, excuse me.

[…]

And the only way that we could find that, a way to be comparable,

was to identify the variables, those calculation variables; so the salary grids,

the ratios – the staffing ratios, the caseload ratios. Those were the only

funding tools that we could find to be comparable, and that is why we had

incorporated that into the EPFA formula.

(Transcript Vol. 51 at pp. 178-179)

[142] Eligible expenditures for maintenance and operations under the EPFA are outlined

at sections 3.4 and 3.5 of Directive 20-1 (see 2012 National Social Programs Manual at p.

38, s. 4.4.1). AANDC expects FNCFS Agencies to manage their operations and

prevention costs within the budgets they have (see testimony of S. Murphy, Transcript Vol.

54 at p. 170). However, the EPFA does allow agencies flexibility in moving funding from

one stream (operations, maintenance or prevention) to another “…in order to address

needs and circumstances facing individual communities” (2012 National Social Programs

Manual at p. 38, s. 4.4.1).

[143] Under EPFA, funding for prevention and operations is determined at the beginning

of a five year period on a fixed cost basis (see testimony of B. D’Amico, Transcript Vol. 53

at p.16). EPFA funding is then rolled-out over a 3-4 year period, where the FNCFS Agency

receives 40% of funding in year 1, 60% in year 2 and between 80% and 100% in year 3.

The full funding amount is provided by year 4 (see testimony of B. D’Amico, Transcript Vol.

52 at pp. 145-146). Once EPFA is fully implemented, the only revision in the funding

formula from year to year is to account for the child population served by the FNCFS

Agency. EPFA does not provide additional funding for increases in operations or

prevention costs over time, such as for changes to professional services rates or

incremental increases in salaries (see testimony of B. D’Amico, Transcript Vol. 52 at pp.

147-150; see also 2012 National Social Programs Manual at p. 37, s. 4.1)

[144] For example, in Alberta, where the EPFA was first implemented in 2007, the

average salaries for service delivery staff from that initial implementation of the EPFA,

based on 2006 values, are still being applied eight years later to the calculation of 2014

budgets (see testimony of B. D’Amico, Transcript Vol. 52 at p. 153; and, testimony of Ms.

Carol Schimanke, Manager of Social Development, Child and Family Services Program,

AANDC Alberta Regional Office, Transcript Vol. 61 at pp. 115-116). According to Ms.

D’Amico, the rationale behind this is as follows:

Because what the idea of EPFA was that if you placed more money

in prevention and did a lot more early intervention work, your maintenance

costs would go down. When those maintenance costs go down, that money

could be reinvested into operations.

So the idea -- and this is not in practice, but the idea behind this was

for it -- for the Agencies to be self-sufficient and be able to move the monies

from one stream to another. So that's why there was no escalator included in

here.

This is an issue we are now reviewing about what happens after year

five if the maintenance isn't supplying the operations anymore, or never did,

so, what if that theory doesn't work?

(Transcript Vol. 52 at pp. 150-151)

[145] Ms. D`Amico specified that in practice, given that some FNCFS Agencies are doing

more intake and investigations as part of their prevention strategies, this has led to more

kids in care and no reduction in maintenance costs (see Transcript Vol. 51 at pp. 91-92).

The EPFA funding formula also does not include funds for intake and investigation.

[146] Maintenance funding under the EPFA is budgeted annually based on actual

expenditures from the previous year (see 2012 National Social Programs Manual at p. 38,

section 4.4.1). AANDC “re-bases” an agency‘s maintenance budget each year. For

example, if an agency‘s maintenance budget is $100 in year one, but its expenditures for

that year total only $80, AANDC will reduce its maintenance budget in the second year to

$80. If in the second year that agency‘s number of children in care increases

unexpectedly, the agency must work within its existing budget to manage those costs in

the interim.

[147] In other words, if maintenance costs are greater than the set amount of

maintenance funding, the FNCFS Agency must recover the deficit from its operations

and/or prevention funding streams. If there is still a deficit in maintenance, AANDC has

some funds that it holds back centrally at the beginning of each fiscal year to help manage

those types of situations. When that fund is depleted, AANDC reallocates money from

other programs within AANDC to cover the maintenance costs. If an FNCFS Agency has a

surplus from its maintenance budget, the agency can keep it and re-apply it to other

eligible expenses (see testimony of C. Schimanke, Transcript Vol. 61 at pp. 91, 96-98;

testimony of B. D‘Amico, Transcript Vol. 50 at pp. 174-181; and, testimony of S. Murphy,

Transcript Vol. 54 at pp. 167-168, 172-174).

[148] AANDC receives a 2% increase in its budget for Social Programs every year.

However, for the FNCFS Program, that 2% increase is calculated based on the budget of

the FNCFS Program prior to the implementation of the EPFA, at about $450 million. Ms.

Murphy estimated the current budget of the FNCFS Program, with the implementation of

the EPFA, to be approximately $627 million. In her words:

So the difference in that, between that 450 million has been made up of

some of the two percent -- the portion of growth, some of it's the incremental

investments that have come to the Department through the EPFA for those

six jurisdictions and the rest of it is resource re-allocations.

(Transcript Vol. 54 at pp. 177, 189-191; see also, Vol. 55 at pp. 188-189)

b. Reports on the FNCFS Program

[149] The FNCFS Program has been examined in multiple reports: the First Nations

Child and Family Services Joint National Policy Review, referred to above as the NPR, in

2000; three related studies from 2004-2005 referred to as the Wen:De reports; and, two

Auditor General of Canada reports in 2008 and 2011, along with follow-up reports thereon

by the House of Commons Standing Committee on Public Accounts.

First Nations Child and Family Services Joint National Policy Review Final Report

[150] The NPR was published in 2000. It is a collaborative report by AANDC and the

Assembly of First Nations. Although the NPR pre-dates the complaint by about 8 years, its

study of the impacts of Directive 20-1 is still relevant given that the funding formula still

applies to many FNCFS Agencies and in the Yukon. The report also outlines a rigorous

methodology and consultation in arriving at its conclusions. The Panel finds this early

study of Directive 20-1 informative and a useful starting point in understanding the impacts

of AANDC’s funding formula on First Nations children and families on reserves.

[151] The NPR describes the context of First Nations child and family services as

including several experiences of massive loss, resulting in identity problems and difficulties

in functioning for many First Nations and their families. These experiences include the

historical experience of residential schools and its inter-generational effects, and the

migration of First Nations out of reserves causing disruption to the traditional concept of

family (see NPR at pp. 32-33). As the NPR puts it at page 33:

First Nation families have been in the centre of a historical struggle between

colonial government on one hand, who set out to eradicate their culture,

language and world view, and that of the traditional family, who believed in

maintaining a balance in the world for the children and those yet unborn.

This struggle has caused dysfunction, high suicide rates, and violence,

which have had vast inter-generational impacts.

[152] According to the NPR, “Program Directive 20-1 was developed to provide equity,

predictability and flexibility in the funding of first nations child and family services agencies”

(at p.10). A principle of Directive 20-1 is that AANDC is committed to the expansion of

child and family services on reserve to a level comparable to the services off reserve in

similar circumstances (see NPR at p. 20). This is AANDC’s own standard and it expects

FNCFS Agencies to abide by it:

FNCFS Agencies are expected through their delegation of authority from the

provinces, the expectations of their communities and by DIAND, to provide a

comparable range of services on reserve with the funding they receive

through Directive 20-1.

(NPR at p. 83, emphasis added)

[153] However, the NPR found the funding formula under Directive 20-1 inhibited FNCFS

Agencies’ ability to meet the expectation of providing a comparable range of child and

family services on reserve for a number of reasons:

 The formula provides the same level of funding to agencies regardless of how

broad, intense or costly, the range of service is (at p. 83).

 Variance in the definition of maintenance expenses from region to region, resulting

in AANDC rejecting maintenance expenses that ought to have been reimbursed in

accordance with provincial/territorial legislation and standards (at pp. 13-14, 84).

 Insufficient funding for staff and not enough flexibility in the funding formula for

agencies to adjust to changing conditions (increases in number of children coming

into care; development of new provincial/territorial programs; or, routine price

adjustments for remoteness) (at pp. 13-14, 65, 70, 92-93, 96-97).

 There has not been an increase in cost of living since 1995-1996 (at pp. 18, 26).

 Funding only provided to new FNCFS agencies for 3 year and 6 year evaluations;

however, provincial legislation requires on-going evaluations (at p. 11).

 First Nations have to comply with the same administrative burden created by

change in provincial legislation but have not received any increased resources to

meet those responsibilities, contradicting the principle of Directive 20-1 (at p. 12).

 Unrealistic amount of administration support to smaller agencies, often

compounded by remoteness (at pp. 14, 97).

 The maximum annual budgetary increase of 2% did not reflect the average annual

increase of 6.2% in the FNCFS Agencies (at p. 14).

 The average per capita per child in care expenditure was 22% lower than the

average in the provinces (at p. 14).

 The formula does not provide adequate resources to allow FNCFS Agencies to do

legislated/targeted prevention, alternative programs and least disruptive/intrusive

measures for children at risk (at p. 120).

[154] The NPR made 17 recommendations to address these areas of concern with

respect to Directive 20-1, including investigating a new methodology for funding

operations. It was recommended that the new funding methodology consider factors such

as work-load case analysis, national demographics and the impact on large and small

agencies, and economy of scale (see NPR at pp. 119-121). A further recommendation

was to develop a management information system in order to ensure the establishment of

consistent, reliable data collection, analysis and reporting procedures amongst AANDC,

FNCFS Agencies and the provinces/territory (see NPR at p. 121).

The Wen:De Reports

[155] The NPR led to the establishment of the Joint National Policy Review National

Advisory Committee (the NAC) in 2001. The NAC involved officials from AANDC, the AFN

and FNCFS Agencies. One of the tasks of the NAC was to explore how to change parts of

Directive 20-1 in line with the NPR recommendations. Funded by AANDC, the NAC

commissioned further research in order to establish that revisions of the FNCFS Program

and Directive 20-1 were warranted. Three reports were produced on the subject: the

Wen:De Reports. Each of the three reports outlines clearly the methodology used to arrive

at its findings and explains those findings in great detail. Three important contributing

authors of the Wen:De reports, Dr. Cindy Blackstock, Dr. John Loxley, and Dr. Nicolas

Trocmé testified at length about the reports at the hearing and confirmed the findings in

these reports.

[156] The objective of the first Wen:De report in 2004 was to identify three new options

for FNCFS Agency funding and the research agenda needed to inform each of those

options (see Wen:De Report One at p. 4). The authors explain how they reviewed

pertinent literature from Canada and abroad; conducted interviews with informed

observers and participants, including the Operations Formula Funding Design Team; and

met with six FNCFS Agencies representing differing agency sizes, service contexts,

regions and cultural groups (see Wen:De Report One at p. 6).

[157] The authors noted that the concerns and challenges expressed by the FNCFS

Agencies that it interviewed were in line with the NPR findings and recommendations,

such as the lack of funding for prevention services, legal services, capital costs,

management information systems, culturally based programs, caregivers, staff salaries

and training, and costs adjustments for remote and small agencies (see Wen:De Report

One at pp. 6, 8).

[158] Notably, the report found FNCFS Agencies “…are not funded on the basis of a

determination of need but rather on population levels” resulting in “…significant regional

variation in the implementation of Directive 20-1 as funding officials within the department

adapted to their local context” (Wen:De Report One at p. 5). As a result, it concluded:

Overall, our findings affirm that the findings and recommendations of the

NPR which was completed in June of 2000 continue to be reflective of the

concerns that FNCFSA are experiencing today. […] All agencies agreed that

immediate redress of inadequate funding was necessary to support good

social work practice in their communities.

(Wen:De Report One at p. 6)

[159] Wen:De Report One presents three options to address this conclusion: (1) redesign

the existing funding formula; (2) follow the funding model of the province/territory in which

the agency is located; or, (3) a new First Nations based funding formula that funds

agencies on the basis of community needs and assets, along with the particular socio-

economic and cultural characteristics of the communities and Nations which the agencies

serve (see Wen:De Report One at pp. 7-13).

[160] The second Wen:De report analyzed the three options presented in the first report

(see Annex, ex. 15 [Wen:De Report Two]). To do so, the various authors of the report

conducted literature reviews and key informant interviews with twelve sample FNCFS

Agencies. A key method was to conduct detailed case studies of the twelve sample

agencies and the provinces using standardized questionnaires administered by regional

researchers. The research approach involved specialized research projects on the

incidence and social work response to reports of child maltreatment respecting First

Nations children, prevention services, jurisdictional issues, extraordinary circumstances,

management information services and small agencies (see Wen:De Report Two at pp. 7,

9-11).

[161] Wen:De Report Two begins by examining the experience of First Nations children

coming into contact with the child welfare system in Canada. It notes that the key drivers of

neglect for First Nations children are poverty, poor housing and substance misuse. The

report underscores that two of those three factors are arguably outside the control of

parents: poverty and poor housing. As such, parents are unlikely to be able to redress

these risks and it can mean that their children are more likely to stay in care for prolonged

periods of time and, in some cases, permanently (see Wen:De Report Two at p. 13). On

this issue, Wen:De Report Two indicates:

 There are approximately three times the numbers of First Nations children in state

care than there were at the height of residential schools in the 1940s (see at p. 8).

 Aboriginal children are more than twice as likely to be investigated compared to

non-Aboriginal children (see at p. 15).

 Once investigated, cases involving Aboriginal children are more likely to be

substantiated and more likely to require on-going child welfare services (see at p.

15).

 Aboriginal children are more than twice as likely to be placed in out of home care,

and more likely to be brought to child welfare court (see at p. 15).

 The profiles of Aboriginal families differ dramatically from the profile of non-

Aboriginal families (see at p. 15).

 Aboriginal cases predominantly involve situations of neglect where poverty,

inadequate housing and parent substance abuse are a toxic combination of risk

factors (see at p. 15).

[162] Overall, with regard to funding under the FNCFS Program, at page 7, Wen:De

Report Two found that:

First Nations child and family service agencies are inadequately funded in

almost every area of operation ranging from capital costs, prevention

programs, standards and evaluation, staff salaries and child in care

programs. The disproportionate need for services amongst First Nations

children and families coupled with the under-funding of the First Nations

child and family service agencies that serve them has resulted in an

untenable situation.

[163] Based on its research findings, the report indicates that Directive 20-1 would need

substantial alteration in order to meet the requirements of the FNCFS Program and to

ensure equitable child welfare services for First Nations children resident on reserve.

There are a number of issues causing an inadequacy in funding. The lack of an

adjustment to funding levels for increases in the cost of living is identified as one of the

major weaknesses of Directive 20-1. Although Directive 20-1 contains a cost of living

adjustment, it has not been implemented since 1995. According to Wen:De Report Two,

not adjusting funding for increases in cost of living “…leads to both under-funding of

services and to distortion in the services funded since some expenses subject to inflation

must be covered, while others may be more optional (at p. 45). Wen:De Report Two

calculates prices increased by 21.21% over the ten year period since Directive 20-1 was

last adjusted for cost of living (see a p. 45). To restore the loss of purchasing power since

1995, it found $24.8 million would be needed to meet the cost of living requirements for

2005 alone (see Wen:De Report Two at p. 51).

[164] Similarly, Directive 20-1 contains no periodic reconciliation for inflation. For

example, since Directive 20-1 was introduced in 1990, there has been no adjustment for

salary increases. Two thirds of FNCFS Agencies participating in Wen:De Report Two

reported funding for salaries and benefits was not sufficient (see at pp. 35, 57). Wen:De

Report Two estimates the loss of funds due to inflation for the operations portion of

Directive 20-1 to be $112 million (at p. 57). It adds, any increases in funding only come

with increases in the number of children served. Therefore, in the circumstances, “either

the quality of services must have declined if child and family needs grew proportionately

with population or, increases in costs of services can have been covered, if at all, only

from a reduction in the proportion of children or families receiving services” (at p. 121).

[165] The population thresholds were also found by all agencies to be an inadequate

means of benchmarking operations funding levels. Approximately half of the respondents

to the study stated funding should be based on community needs not child population.

Some added that the entire community population should be taken into account, not just

that of children, since it is the entire family that needs support when a child is at risk or is

unsafe. In fact, small agencies (those serving child populations of less than 1,000)

represent 55% of the total number of FNCFS Agencies. According to 75% of the small

agencies who participated in Wen:De Report Two, their salary and benefits levels for staff

were not comparable to other child welfare organizations (see at pp. 46-48, 213).

[166] In addition, Directive 20-1 provides no adjustment for the different content of

provincial/territorial legislation and standards. While the FNCFS Program includes a

guiding principle that services should be reasonably comparable to those provided to

children in similar circumstances off reserve, it contains no mechanism to ensure this is

achieved (see Wen:De Report Two at p. 50).

[167] Aside from the above, Wen:De Report Two found consensus among FNCFS

Agencies it canvassed that Directive 20-1 makes inadequate provision for travel, legal

costs, front-line workers, program evaluation, accounting and janitorial staff, staff

meetings, Health and Safety Committee meetings, security systems, human resources

staff for large agencies, quality assurance specialists and management information

systems. Furthermore, Wen:De Report Two comments that funding has not reflected the

significant technology changes in computer hardware and software over the past decade.

Moreover, liability insurance premiums have increased substantially over that same period

and are not reflected in Directive 20-1 (see at p. 122). Wen:De Report Two also identified

management information systems as not meeting minimum standards in the vast majority

of cases (see at p. 57).

[168] Of particular note, funds for prevention and least disruptive measures were

identified as inadequate, along with 84% of reporting FNCFS Agencies feeling that current

funding levels were insufficient to provide adequate culturally based services (see Wen:De

Report Two at p. 57). In this regard, the report found that “the present funding formula

provides more incentives for taking children into care than it provides support for

preventive, early intervention and least intrusive measures” (Wen:De Report Two at p.

114). This is because the funding formula provides dollar-for-dollar reimbursement of

“maintenance” expenditures and prevention services are often not deemed to fall under

“maintenance” (see Wen:De Report Two at p. 19-21). As a result, prevention funding was

identified as being inadequate, in spite of the fact that such services are mandated under

most provincial child welfare legislation (see Wen:De Report Two at p. 91). On this basis,

the report states:

This means that agencies in this situation effectively have no money to

comply with the statutory requirement to provide families with a meaningful

opportunity to redress the risk that resulted in their child being removed.

More importantly, the children they serve are denied an equitable chance to

stay safely at home due to the structure and amount of funding under the

Directive. In this way the Directive really does shape practice – instead of

supporting good practice.

(Wen:De Report Two at p. 21)

[169] Wen:De Report Two concludes option three, a new First Nations based funding

formula that funds agencies based on needs and assets, is the most promising way to

address these deficiencies because of the “…possibility of re-conceptualizing the

pedagogy, policy and practice in First Nations child welfare in a way that better supports

sustained positive outcomes for First Nations children” (Wen:De Report Two at p. 9). In

sum, Wen:De Report Two recommends: targeted funding for least disruptive measures;

funds for adequate culturally based policy and standards development; ensure that human

resources funds are sufficient; increased investment in research to inform policy and

practice for FNCFS Agencies; and, introduce financial review and adjustment to account

for changes to provincial child welfare legislation (see Wen:De Report Two at p. 56).

[170] The third Wen:De report involved the development and costing of the

recommended changes arising from the second report (see Annex, ex. 16 [Wen:De

Report Three]). A national survey instrument was developed and sent out to 93 FNCFS

Agencies. Thirty-five surveys were completed, representing 32,575 children, 146 First

Nations and $28.6 million in operating funds. This covered 38% of all FNCFS Agencies,

49% of all bands, 31.4% of all children 0-18 and 28.7% of all funding for operations (see

Wen:De Report Three at pp. 9-10).

[171] Wen:De Report Three reiterates the weaknesses in Directive 20-1 as follows at

pages11-12:

1) uncertainty in what the original rationale was underlying the development

of the formula 2) regional interpretations of sometimes vaguely worded

guidelines, 3) a failure to implement certain elements of the formula such as

the annual inflation adjustment and 4) a failure of the policy to keep pace

with advances in social work evidence based practice, child welfare liability

law and the evolution of management information systems and 5) the policy

appeared to leave out some child welfare expenses altogether or fund them

inadequately such as the failure of the policy to support agencies to provide

in home interventions to abused and neglected children to keep them safely

at home as opposed to bringing them into care.

[172] Despite these weaknesses, Wen:De Report Three also indicates Directive 20-1 has

some positive features, including that it is national in scope, has undergone two national

studies, has enabled the development of FNCFS Agencies throughout Canada, and offers

a baseline for judging the impacts of possible changes to the current regime.

[173] These reasons were the principle basis forming the recommendation in Wen:De

Report Three to implement both options 1 and 3. That is, redesign Directive 20-1 now, with

a priority on funding prevention services and providing redress for losses in funding due to

inflation, while providing a foundation for the development of a First Nations based formula

over time (see Wen:De Report Three at pp. 11-12). In also pursuing option 1, the report

noted the development of a First Nations funding model would not provide a quick fix to

the problems with the existing funding formula (see Wen:De Report Three at p. 14).

[174] Option two, tying FNCFS Agency funding to provincial formulae, was found to be

the least promising option, notably because in several provinces it is not clear what their

formula is and First Nation communities do not have the same degree of infrastructure of

programs, services and volunteer agencies. Moreover, provincial funding traditions are not

based on the particular needs and conditions faced by First Nation families living on

reserve, including that it costs more to service First Nations children and families due to

their high needs levels (see Wen:De Report Three at p. 13).

[175] In recommending reforms to Directive 20-1, Wen:De Report Three noted that “[a]

shift in funding mentality is vital” (at p. 20). That is, as stated at page 20 of Wen:De Report

Three:

An approach that invests in the community and engages the community at

all levels – children, adolescents, youth, parents and Elders means directing

resources at growth and development of the people rather than the

breakdowns of the people in the community. This approach demonstrates

long term commitment to the growth of a child and family and invests in the

future of contributing members to society.

[176] Furthermore, at page 15, Wen:De Report Three provides the following caution:

Although each suggested change element is presented as a separate item,

it is important to understand that these elements are interdependent and

adoption in a piece meal fashion would undermine the overall efficacy of the

proposed changes. For example, providing least disruptive measures

funding for at home child maltreatment interventions without providing the

cost of living adjustment would result in agencies not having the

infrastructure and staffing capacity to maximize outcomes. Similarly, these

recommendations assume that there will be no reductions in the First

Nations child and family service agency funding envelope. Situations where

funds in one area are cut back and redirected to other funding streams in

child and family services should be avoided as our research found that

under funding was apparent across the current formula components.

[177] Wen:De Report Three recommends certain economic reforms to Directive 20-1,

along with policy changes to support those reforms. The recommended economic reforms

from Wen:De Report Three, include: a new funding stream for prevention/least disruptive

measures (at pp. 19-21); adjusting the operations budget (at pp. 24-25); reinstating the

annual cost of living adjustment on a retroactive basis back to 1995 (at pp. 18-19);

providing sufficient funding to cover capital costs (buildings, vehicles and office equipment)

(at pp. 28-29); and, funding for the development of culturally based standards by FNCFS

Agencies (at p. 30).

[178] Of particular note, Wen:De Report Three recommends a new funding stream for

prevention/least disruptive measures (at pp. 19-21). At page 35, Wen:De Report Three

indicates that increased funding for prevention/least disruptive measures will provide costs

savings over time:

Bowlus and McKenna (2003) estimate that the annual cost of child

maltreatment to Canadian society is 16 billion dollars per annum. As

increasing numbers of studies indicate that First Nations children are over

represented amongst children in care and Aboriginal children in care they

compose a significant portion of these economic costs (Trocme, Knoke and

Blackstock, 2004; Trocme, Fallon, McLaurin and Shangreaux, 2005;

McKenzie, 2002). A failure of governments to invest in a substantial way in

prevention and least disruptive measures is a false economy – The choice is

to either invest now and save later or save now and pay up to 6-7 times

more later (World Health Organization, 2004.)

[179] For small agencies the report found that the fixed amount per agency or the

provision for overhead did not provide realistic administrative support for two reasons. The

first is that no agency representing communities with a combined total of 250 or fewer

children receives any overhead funding whatsoever. The second problem is that available

funding is currently fixed in three large blocks: 251-500 = $ 35,790; 501-800 = $ 71,580;

and, 801 and up = $143,158. A slight increase or decrease in child population can result in

a huge increase or decrease in overhead funding available to an agency (see Wen:De

Report Three at p. 23).

[180] Therefore, Wen:De Report Three recommends two reforms. First, that overhead

funding be extended to agencies serving populations of 125 and above. The report

proposes a minimum of $20,000 be made available to the smallest agency representing

125 children. Thereafter, the second proposal is to give agencies additional funding for

every 25 children in excess of 125. Under this approach, 6 agencies would still be too

small to receive any fixed amount; 8 small agencies which never before received a fixed

amount of overhead funding would now do so; 23 agencies of medium size would receive

funding increases; and, 56 large agencies would receive no change in their funding. In the

future, Wen:De Report Three believes a minimum economy of scale for small agencies will

be required to provide a basic level of child and family services (see at p. 23-24).

[181] In terms of the remoteness factor in Directive 20-1, Wen:De Report Three identified

a number of weaknesses, including that the average adjustment is considered by 90% of

the agencies canvassed to be too small to compensate for the actual costs of remoteness;

and, that the remoteness index is usually based on accessibility to the nearest business

centre, which are not necessarily able to offer specialized child welfare services. According

to Wen:De Report Three, these weakness have led to some communities receiving less

than their population warrants and some receiving more. As such, it proposes an across

the board increase in remoteness allowances and to adjust the index from the current

service centre base to a city centre base (see at pp. 25-26).

[182] Other policy recommendations from Wen:De Report Three include: that AANDC

clarify that legal costs related to children in care are billable under “maintenance”; that

support services related to reunifying children in care with their families be eligible

“maintenance” expenses, since they are mandatory services according to provincial child

welfare statutes; validation of the need for research and mechanisms to share best

practices at a regional and national level; and, that AANDC clarify the “stacking provisions”

in Directive 20-1 in order to make it easier for First Nations to access voluntary sector

funding sources (at pp. 16-18).

[183] Finally, Wen:De Report Three found jurisdictional disputes between federal

government departments and between the federal government and provinces over who

should fund a particular service took about 50.25 person hours to resolve, resulting in a

significant tax on the limited resources of FNCFS Agencies. As a result, it recommends

the immediate implementation of Jordan’s Principle for jurisdictional dispute resolution and

its integration into any funding agreements between AANDC and the provinces. Jordan’s

Principle asserts that the government (federal or provincial) or department that first

receives a request to pay for a service must pay for the service and resolve jurisdictional

issues thereafter (see Wen:De Report Three at p. 16).

[184] Total costs of implementing all the reforms recommended in Wen:De Report Three

were estimated at $109.3 million, including $22.9 million for new management information

systems, capital costs (buildings, vehicles and office equipment) and insurance premiums;

and, $86.4 million for annual funding needs (see at p. 33).

[185] The EPFA was designed in an effort to address some of the shortcomings of

Directive 20-1 identified in the NPR and the Wen:De reports. However, despite Wen:De

Report Three’s caution that the recommended changes are interdependent and adoption

in a piece meal fashion would undermine the efficacy of those proposed changes, this is in

fact the approach AANDC took. This becomes clear in reviewing the Auditor General of

Canada’s 2008 report on the FNCFS Program and AANDC’s corresponding responses,

along with the rest of the evidence to follow.

2008 Report of the Auditor General of Canada

[186] Following a written request from the Caring Society, the Auditor General of Canada

initiated a review of AANDC’s FNCFS Program and reported the findings to the House of

Commons in 2008 (see Annex, ex. 17 [2008 Report of the Auditor General of Canada]).

The purpose of the review was to examine the “…management structure, the processes,

and the federal resources used to implement the federal policy…” on reserves (2008

Report of the Auditor General of Canada at p.1).

[187] The 2008 Report of the Auditor General of Canada echoed the findings of the NPR

and Wen:De reports. Namely, that “[c]urrent funding practices do not lead to equitable

funding among Aboriginal and First Nations communities” (2008 Report of the Auditor

General of Canada at p.2). The findings of the 2008 Report of the Auditor General of

Canada include:

 The funding formula is outdated and does not take into account any costs

associated with modifications to provincial legislation or with changes in the way

services are provided (see at p. 20, s. 4.51),

 AANDC has limited assurance that child welfare services delivered on reserves

comply with provincial legislation and standards. Funding levels are pre-determined

without regard to the services the agency is bound to provide under provincial

legislation and standards (see at pp.14-15, ss. 4.30, 4.34).

 There is no definition of what is meant by reasonably comparable services or way

of knowing whether the services that the program supports are in fact reasonably

comparable. Furthermore, child welfare may be complicated by other social

problems or health issues. Access to social and health services, aside from child

welfare services, to help keep a family together differs not only on and off reserves

but among First Nations as well. AANDC has not determined what other social and

health services are available on reserves to support child welfare services. On-

reserve child welfare services cannot be comparable if they have to deal with

problems that, off reserves, would be addressed by other social and health services

(see at pp. 12-13, ss.4.20, 4.25).

 There are no standards for FNCFS Agencies to provide culturally appropriate child

welfare services that meet the requirements of provincial legislation. The number of

FNCFS Agencies being funded is the main indicator of cultural appropriateness that

AANDC uses. According to AANDC, the fact that 82 First Nations agencies have

been created since the current federal policy was adopted means there are more

First Nations children receiving culturally appropriate child welfare services.

However, the Auditor General found that many agencies provide only a limited

portion of the services while provinces continue to provide the rest. Further,

AANDC does not know nationally how many of the children placed in care remain

in their communities or are in First Nations foster homes or institutions (see at p. 13,

ss. 4.24-4.25).

 The formula is based on the assumption that each FNCFS Agency has 6% of on-

reserve children placed in care. This assumption leads to funding inequities among

FNCFS Agencies because, in practice, the percentage of children that they bring

into care varies widely. For example, in the five provinces covered by the report,

that percentage ranged from 0 to 28% (see at p. 20, s. 4.52).

 The funding formula is not responsive to factors that can cause wide variations in

operating costs, such as differences in community needs or in support services

available, in the child welfare services provided to on-reserve First Nations children,

and in the actual work performed by FNCFS Agencies (see at p. 20, s. 4.52).

 The formula is not adapted to small agencies. It was designed on the basis that

First Nations agencies would be responsible for serving a community, or a group of

communities, where at least 1,000 children live on reserve. The Auditor General

found 55 of the 108 agencies funded by AANDC were small agencies serving a

population of less than 1000 children living on reserve who did not always have the

funding and capacity to provide the required range of child welfare services (see at

p. 21, ss. 4.55-4.56).

 The shortcomings of the funding formula have been known to AANDC for years

(see at p. 21, s. 4.57).

[188] As certain provinces were transitioned to the EPFA at the time of the report, the

2008 Report of the Auditor General of Canada also comments on the new funding

formula. It found that while the new funding formula provides more funds for the operations

of FNCFS Agencies and offers more flexibility to allocate resources, it does not address

the inequities noted under the current formula. It still assumes that a fixed percentage of

First Nations children and families need child welfare services and, therefore, does not

address differing needs among First Nations (see 2008 Report of the Auditor General of

Canada at p. 23, ss. 4.63-4.64).

[189] Overall, the Auditor General of Canada was of the view that:

the funding formula needs to become more than a means of distributing the

program’s budget. As currently designed and implemented, the formula does

not treat First Nations or provinces in a consistent or equitable manner. One

consequence of this situation is that many on-reserve children and families

do not always have access to the child welfare services defined in relevant

provincial legislation and available to those living off reserves.

(2008 Report of the Auditor General of Canada at p. 23, s. 4.66)

[190] The Auditor General further noted that because the FNCFS Program’s

expenditures were growing faster than AANDC’s overall budget, funds had to be

reallocated from other programs, such as community infrastructure and housing. This

means spending on housing has not kept pace with growth in population and community

infrastructure has deteriorated at a faster rate. In the Auditor General’s view, AANDC’s

budgeting approach for the FNCFS Program is not sustainable and needs to minimize the

impact on other important departmental programs (see 2008 Report of the Auditor General

of Canada at p. 25, ss. 4.72-4.73).

[191] The Auditor General of Canada made 6 recommendations to address the findings

in its report. AANDC agreed with all the recommendations and indicated the actions it has

taken or will take to address the recommendations (see 2008 Report of the Auditor

General of Canada at p. 6 and Appendix). AANDC’s response to the 2008 Report of the

Auditor General of Canada demonstrates its full awareness of the impacts of its FNCFS

Program on First Nations children and families on reserves, including that its funding is not

in line with provincial legislation and standards. Furthermore, despite the flaws identified

with the new funding formula, AANDC still viewed EPFA as the answer to the problems

with the FNCFS Program:

4.67 Recommendation. Indian and Northern Affairs Canada, in consultation

with First Nations and provinces, should ensure that its new funding formula

and approach to funding First Nations agencies are directly linked with

provincial legislation and standards, reflect the current range of child welfare

services, and take into account the varying populations and needs of First

Nations communities for which it funds on-reserve child welfare services.

The Department’s response. Indian and Northern Affairs Canada’s current

approach to Child and Family Services includes reimbursement of actual

costs associated with the needs of maintaining a child in care. The

Department agrees that as new partnerships are entered into, based on the

enhanced prevention approach, funding will be directly linked to activities

that better support the needs of children in care and incorporate provincial

legislation and practice standards.

(2008 Report of the Auditor General of Canada at pp. 23-24, s. 4.67)

[192] The flaws with Directive 20-1 and the EPFA would subsequently be scrutinized by

the Standing Committee on Public Accounts.

2009 Report of the Standing Committee on Public Accounts

[193] In February 2009, the House of Commons Standing Committee on Public Accounts

held a hearing on the 2008 Report of the Auditor General of Canada. This hearing was

held with officials from the Office of the Auditor General of Canada and AANDC “[g]iven

the importance of the safety and well-being of all Canadian children and the disturbing

findings of the audit” (Annex, ex.18 at p.1 [2009 Report of the Standing Committee on

Public Accounts]).

[194] The Committee noted the 2008 Report of the Auditor General of Canada made 6

recommendations and that it fully supports those recommendations. As AANDC agreed

with all the recommendations, “the Committee expects that the Department will fully

implement them” (2009 Report of the Standing Committee on Public Accounts at p. 3).

[195] AANDC’s Deputy Minister Michael Wernick acknowledged the flaws in the older

funding formula and pointed to the new approach:

What we had was a system that basically provided funds for kids in care. So

what you got was a lot of kids being taken into care. And the service

agencies didn't have the full suite of tools, in terms of kinship care, foster

care, placement, diversion, prevention services, and so on. The new

approach that we're trying to do through the new partnership agreements

provides the agencies with a mix of funding for operating and maintenance--

which is basically paying for the kids' needs--and for prevention services,

and they have greater flexibility to move between those.

(2009 Report of the Standing Committee on Public Accounts at pp. 7-8

[footnote omitted])

[196] Assistant Deputy Minister Christine Cram’s testimony before the Standing

Committee echoed that of the Deputy Minister:

We currently have two formulas in operation. We have a formula for those

provinces where we haven't moved to the new model. Under that formula,

we reimburse all charges for kids who are actually in care, and that's why

the costs have gone up so dramatically over time. There were comments

made about the fact that under the old formula there wasn't funding provided

to be able to permit agencies to provide prevention services. That's a fair

criticism of the old formula. Under the new formula, as the deputy was

mentioning, we have three categories in the funding formula. We have

operations, prevention, and maintenance. So those are each determined on

a different basis.

(2009 Report of the Standing Committee on Public Accounts at p. 8

[footnote omitted])

[197] With regard to the continued application of Directive 20-1 in many provinces and in

the Yukon, the Standing Committee expressed concern:

The Committee is quite concerned that the majority of First Nations

children on reserves continue to live under a funding regime which

numerous studies have found is not working and should be changed.

According to the Joint National Policy Review, “The funding formula inherent

in Directive 20-1 is not flexible and is outdated.” The 2005 Wen:de report,

which undertook a comprehensive review of funding formulae to support

First Nations child and family service agencies, found that the current

funding formula drastically underfunds primary, secondary and tertiary child

maltreatment intervention services, including least disruptive measures. The

report writes, “The lack of early intervention services contributes to the large

numbers of First Nations children entering care and staying in care.” An

evaluation prepared in 2007 by INAC’s Departmental Audit and Evaluation

Branch recommended that INAC, “correct the weaknesses in the First

Nations Child and Family Service Program’s funding formula.” The OAG

concluded, “As currently designed and implemented, the formula does not

treat First Nations or provinces in a consistent or equitable manner. One

consequence of this situation is that many on-reserve children and families

do not always have access to the child welfare services defined in relevant

provincial legislation and available to those living off reserves.”

Yet, this funding formula continues. As the Auditor General puts it,

“Quite frankly, one has to ask why a program goes on for 20 years, the world

changes around it, and yet the formula stays the same, preventative

services aren't funded, and all these children are being put into care.”

While the Committee appreciates the efforts the Department is

making to develop new agreements based on the enhanced prevention

model, the Committee completely fails to understand why the old funding

formula is still in place. Moving to new agreements should in no way

preclude making improvements to the existing formula, especially as it may

take years to develop agreements with the provinces. In the meantime,

many First Nations children are taken into care when other options are

available. This is unacceptable and clearly inequitable.

(2009 Report of the Standing Committee on Public Accounts at pp. 9-10

[footnotes omitted])

[198] With regard to the new EPFA funding formula, the Standing Committee agreed with

the Auditor General’s comments regarding the fact that this new formula does not address

the inequities of Directive 20-1 (i.e. the assumptions built into the formula regarding the

percentage of first nations children and families in need of care):

The Committee could not agree more, especially as the Department has

known about this problem in the old formula yet has repeated it in the new

formula. The Committee is very disturbed that the Department would take a

bureaucratic approach to funding agencies, rather than making efforts to

provide funding where it is needed. The result of this approach is that

communities that need funding the most, that is, where more than six

percent of the children are in care, will continue to be underfunded and will

not be able to provide their children the services they need. The Committee

strongly believes that INAC needs to develop a funding formula that is

flexible enough to provide funding based on need, rather than a fixed

percentage.

(2009 Report of the Standing Committee on Public Accounts at p. 10)

[199] Finally, with regard to the Auditor General’s finding that AANDC has not analyzed

and compared the child welfare services available on reserves with those in neighbouring

communities off reserve, the Standing Committee made the following observations:

Nonetheless, it should be possible to compare the level of funding

provided to First Nations child and family services agencies to similar

provincial agencies, and given their unique and challenging circumstances, it

would be reasonable to expect First Nations agencies to receive a higher

level of funding. Yet, when asked how the funding for First Nations child and

family service agencies compares to agencies for non-natives, the Assistant

Deputy Minister said, “I'm sorry, but we don't know the answer.” The same

question was put to the Deputy Minister and he replied, “Our accountability

is for the services delivered by those agencies to the extent that we fund

them.”

The Committee finds these responses quite disappointing. The

Deputy Minister’s response was unsatisfactory because the issue under

discussion is the extent to which the agencies are funded. Also, to not know

how the funding compares to provincial agencies makes the Committee

wonder how the level of funding is determined, and how the Department can

be assured that it is treating First Nations children equitably.

[…]

As the policy requires First Nations child welfare services to be

comparable with services provided off reserves and the Committee believes

that First Nations children should be treated equitably, the Committee

believes that INAC must have comprehensive information about the funding

level provided to provincial child welfare agencies and compare that to the

funding of First Nations agencies. This does not mean that INAC should

adopt provincial funding formulae for First Nations agencies as the needs for

First Nations agencies are unique and often greater. Nonetheless, at the

very least, INAC should be able to compare funding.

(2009 Report of the Standing Committee on Public Accounts at pp. 5-6

[footnotes omitted])

[200] After hearing from the officials of the Office of the Auditor General of Canada and

AANDC, including Sheila Fraser, the Auditor General of Canada, Michael Wernick, Deputy

Minister of AANDC, and Christine Cram, Assistant Deputy Minister of AANDC, the

Standing Committee on Public Accounts made 7 recommendations of its own. Those

recommendations include: that AANDC provide a detailed action plan to the Public

Accounts Committee on the implementation of the recommendations arising out the 2008

Report of the Auditor General of Canada; that AANDC conduct a comprehensive

comparison of its funding under the FNCFS Program to provincial funding of similar

agencies; that AANDC immediately modify Directive 20-1 to allow for the funding of

enhanced prevention services; that AANDC ensure its funding formula is based upon

need rather than an assumed fixed percentage of children in care; that AANDC determine

the full costs of meeting all of its policy requirements and develop a funding model to meet

those requirements; and, that AANDC develop measures and collect information based on

the best interests of children for the results and outcomes of its FNCFS Program (see

2009 Report of the Standing Committee on Public Accounts at pp. 4-12).

[201] In response to the Standing Committee’s report, presented to the House of

Commons on August 19, 2009, AANDC generally accepted the recommendations,

although with some nuances (see Annex, ex. 19 [AANDC’s Response to the 2009 Report

of the Standing Committee on Public Accounts]). For example, AANDC generally

responded:

The Standing Committee on Public Accounts’ recommendations

speak to the link between provincial comparability, revising Directive 20-1,

moving to a needs based formula and to determining the full costs of the

FNCFS Program nationally. This suggests INAC should undertake a one-

time simultaneous reform of the program in all provinces. INAC is in fact

undertaking similar steps towards reform, however, it is being done

province-by-province. Rather than taking a one-size-fits all approach that

would overlook community level needs and compromise partnerships and

accountability, INAC is addressing provincial comparability, including a

needs component in the formula and finalizing the process with a full costing

analysis for each jurisdiction. All of this is done at tripartite tables ensuring

buy-in by all partners, reasonable comparability with the respective province

and sound accountability aimed at achieving positive outcomes for children

and their families. As well, INAC is committing to review Directive 20-1.

(AANDC’s Response to the 2009 Report of the Standing Committee on

Public Accounts at Introduction)

[202] With regard to the recommendation that AANDC conduct a comprehensive

comparison of its funding to provincial funding, AANDC responded:

INAC agrees with this recommendation on the understanding that a

comparative analysis can only be provided with the limited data we have

access to and on a phased basis. This review will require a substantial

amount of time and work with the provinces and First Nations. The

information available in provincial annual reports is general and the funding

provided under their children’s services often includes programs beyond

child and family services. Overall, these provincial reports do not contain the

level of detail required to make the kind of comprehensive comparison

expected by the Committee. Relationships must be strengthened with

provincial partners as they are key in providing INAC with the necessary

information concerning the funding of their child welfare programs. This is

what INAC is doing as it proceeds with the Enhanced Prevention Focused

Approach. Provinces must also agree to allow INAC to make this information

available to the public.

It should also be noted that due to the complexity of child welfare

service delivery across the country, comparability between FNCFS agencies

and provincial child welfare providers on-reserve, is challenging. Specifically,

child welfare services in the provinces are delivered in a variety of ways. The

services can vary by jurisdiction based on need; be provided directly by the

province; or by provincially delegated authorities or regional/districts. A

province can also fund agencies to deliver the services and/or contract third

parties.

Therefore, INAC cannot commit to conducting such a comprehensive

review nor can it be done for all jurisdictions by the timelines required by the

Committee. INAC would be able to provide a basic comparison of

jurisdictions that are currently under the Enhanced Prevention Focused

Approach and where INAC has basic information on salary rates and

caseload ratios. INAC expects to complete this first phase by or before

December 31, 2009.

As INAC moves forward on transitioning other jurisdictions and as

relationships are built with each province at the tripartite tables, INAC will be

in a better position to conduct a comparison of funding between FNCFS

agencies and provincial systems. This phase will consist of the provinces

with whom INAC has not yet developed or completed tripartite accountability

frameworks. This phase is expected to be completed by 2012.

(AANDC’s Response to the 2009 Report of the Standing Committee on

Public Accounts at Recommendation 2 – Provincial Comparison)

[203] In response to the recommendation that AANDC revise the funding formula to

provide funding based on need, AANDC responded:

It is important to note that the 6% average number of children in care

calculation is one of many factors used only to model operations funding

which includes the number of protection workers. This is then translated into

a portion of the operations funding that agency receives. This 6% number

was arrived at through discussions with First Nations Agency Directors and

provincial representatives, and was thought to be fairly representative of the

overall needs of the communities. Under the Enhanced Prevention Focused

Approach, FNCFS agencies have the flexibility to shift funds from one

stream to another in order to meet the specific needs of the community. This

costing model provides all FNCFS agencies under the new approach with

the necessary resources to offer a greater range of child and family services.

Through discussions with provincial and First Nations partners, it is

clear that they preferred to create a costing model that would provide

recipients stable funding for operations. The majority of partners indicated

they would not be supportive of a model that generated more resources for

Recipients based upon a higher percentage of children in care. Also, this

model ensures that FNCFS agencies supporting communities with lower

populations are provided with sufficient funding to operate both prevention

and protection programs. Without the fixed percentage formula used to

calculate and fund Operations, agencies with a very low percentage of

children in care would not have the necessary resources to operate.

Moreover, if the operations budget were based upon need rather than a

fixed percentage, the agencies could find themselves with widely fluctuating

operations budgets year to year which would hamper their ability to plan and

provide services. The new costing models provide a stable operating and

prevention budget that does not rely on the number of children in care as

one of its determinants.

(AANDC’s Response to the 2009 Report of the Standing Committee on

Public Accounts at Recommendation 5 – Funding Formula based on Need)

[204] AANDC’s response to the recommendations of the 2008 Report of the Auditor

General of Canada and the 2009 Report of the Standing Committee on Public Accounts

would be revisited in 2011 by the Auditor General.

2011 Status Report of the Auditor General of Canada

[205] In 2011, the Auditor General of Canada assessed AANDC’s progress in

implementing the recommendations from the 2008 Report of the Auditor General of

Canada and the 2009 Report of the Standing Committee on Public Accounts (see Annex,

ex. 20 [2011 Status Report of the Auditor General of Canada]).

[206] With regard to comparability of services, the Auditor General noted that while

AANDC had agreed to define what is meant by services that are reasonably comparable, it

had not done so. The Auditor General stated that “[u]ntil it does, it is unclear what is the

service standard for which the Department is providing funding and what level of services

First Nations communities can eventually expect to receive” (see 2011 Status Report of

the Auditor General of Canada at pp. 23-24, s. 4.49). In addition, the Auditor General

found AANDC had not conducted a review of social services available in the provinces to

assess whether the services provided to children on reserve are the same as what is

available to children off reserve (see 2011 Status Report of the Auditor General of Canada

at p. 24, s. 4.49).

[207] Concerning the new EPFA funding formula, the Auditor General reiterated its

previous finding that it did not address all of the funding disparities that were noted in the

2008 Report of the Auditor General of Canada. While the Auditor General acknowledged

that the EPFA enables additional services beyond those offered by Directive 20-1, it noted

that:

without having defined what is meant by comparability, the Department has

been unable to demonstrate that its new Enhanced Prevention Focused

Approach provides services to children and families living on reserves that

are reasonably comparable to provincial services.

(2011 Status Report of the Auditor General of Canada at p. 24, ss. 4.50-

4.51)

[208] With respect to the recommendation that AANDC determine the full costs of

meeting the policy requirements of the FNCFS Program, the Department agreed to

regularly update the estimated cost of delivering the program with the new EPFA funding

approach on a province-by-province basis and to periodically review the program budget.

The Auditor General reported that AANDC had identified the costs it would have to pay for

services in each province before transitioning to EPFA. AANDC determined that it needed

an increase of between 50 and 100% in its funding for operations and prevention services

in each of the provinces that transitioned to EPFA. With all cost components taken into

consideration, on average, EPFA led to an increase of over 40% in the cost of the FNCFS

Program in the participating provinces (see 2011 Status Report of the Auditor General of

Canada at pp. 24-25, ss. 4.53-4.54). In this regard, the Auditor General noted the FNCFS

Program budget has increased by 32% since the 2005-2006 fiscal year, partly reflecting

the increased funding levels needed to implement EPFA (see 2011 Status Report of the

Auditor General of Canada at p. 25, s. 4.55).

[209] On the comprehensive comparison of funding to FNCFS Agencies with provincial

funding to similar agencies requested by the Standing Committee on Public Accounts, the

Auditor General reported that AANDC had compared some elements of child and family

services programs on and off reserve, such as social workers’ salaries and benefits in

preparation for framework negotiations with the provinces. However, AANDC did not

provide any information about social workers’ caseloads, stating that it is not public

information. In addition, AANDC asserted certain services provided by the provinces, such

as services related to health issues and youth justice, were not within AANDC’s mandate

(see 2011 Status Report of the Auditor General of Canada at p. 25, ss. 4.56- 4.57).

[210] In general, the Auditor General’s review of programs for First Nations on reserves,

including its follow-up on the status of AANDC’s progress in addressing some of the

recommendations from the 2008 Report of the Auditor General of Canada, was as follows:

Despite the federal government’s many efforts to implement our

recommendations and improve its First Nations programs, we have seen a

lack of progress in improving the lives and well-being of people living on

reserves. Services available on reserves are often not comparable to those

provided off reserves by provinces and municipalities. Conditions on

reserves have remained poor. Change is needed if First Nations are to

experience more meaningful outcomes from the services they receive. We

recognize that the issues are complex and that solutions will require

concerted efforts of the federal government and First Nations, in

collaboration with provincial governments and other parties.

We believe that there have been structural impediments to improvements in

living conditions on First Nations reserves. In our opinion, real improvement

will depend on clarity about service levels, a legislative base for programs,

commensurate statutory funding instead of reliance on policy and

contribution agreements, and organizations that support service delivery by

First Nations. All four are needed before conditions on reserves will

approach those existing elsewhere across Canada. There needs to be

stronger emphasis on achieving results.

We recognize that the federal government cannot put all of these structural

changes in place by itself since they would fundamentally alter its

relationship with First Nations. For this reason, First Nations themselves

would have to play an important role in bringing about the changes. They

would have to become actively engaged in developing service standards

and determining how the standards will be monitored and enforced. They

would have to fully participate in the development of legislative reforms. First

Nations would also have to co-lead discussions on identifying credible

funding mechanisms that are administratively workable and that ensure

accountable governance within their communities. First Nations would have

to play an active role in the development and administration of new

organizations to support the local delivery of services to their communities.

Addressing these structural impediments will be a challenge. The federal

government and First Nations will have to work together and decide how

they will deal with numerous obstacles that surely lie ahead. Unless they rise

to this challenge, however, living conditions may continue to be poorer on

First Nations reserves than elsewhere in Canada for generations to come.

(2011 Status Report of the Auditor General of Canada at pp. 5-6)

2012 Report of the Standing Committee on Public Accounts

[211] In February 2012, the Standing Committee on Public Accounts issued a report

following the 2011 Status Report of the Auditor General of Canada (see Annex, ex. 21

[2012 Report of the Standing Committee on Public Accounts]).

[212] Deputy Minister of AANDC, Michael Wernick, testified before the Committee and

“…agreed, without reservation, with the OAG’s diagnosis of the problem…” (2012 Report

of the Standing Committee on Public Accounts at p. 3). Mr. Wernick stated to the

Committee:

One of the really important parts of the Auditor General's report is that it

shows there are four missing conditions. The combination of those is what's

likely to result in an enduring change. You could pick any one of them, such

as legislation without funding, or funding without legislation, and so on. They

would have some results, but they would probably, in our view, be

temporary. If you want enduring, structural changes, it's the combination of

these tools.” He also said, “With all due respect, I want to send the message

that, if Parliament demands better results, it has to provide us with better

tools.

(2012 Report of the Standing Committee on Public Accounts at p. 3

[footnotes omitted])

[213] With specific regard to the FNCFS Program, the Deputy Minister stated:

We have fixed the funding formula. We make sure resources are available

for prevention services. And we've put in place these kinds of tripartite

agreements, because these are creatures of the provincial child protection

statutes. In six of the provinces, I think it is, we have $100 million or more in

funding over several budgets. They go at the pace at which we can conclude

agreements with the provinces--I can certainly provide the list--but we're now

covering about 68% of first nations kids with this prevention approach.

(2012 Report of the Standing Committee on Public Accounts at p. 9

[footnote omitted])

[214] The Standing Committee concluded its report with the following statements:

The Committee notes that the government is taking a number of

concrete actions to improve conditions for First Nations on reserves, and the

Deputy Minister of AANDC expressed his commitment to address the

structural impediments identified by the OAG. Like the Deputy Minister, the

Committee is optimistic that progress can be made, but it will require

significant structural reforms and sustained management attention. The

Committee believes that AANDC, in coordination with other departments,

needs to develop and commit to a plan of action to take the necessary

steps, and the Committee intends to monitor the government’s progress to

ensure that First Nations on reserves experience meaningful improvements

in their social and economic conditions.

(2012 Report of the Standing Committee on Public Accounts at p. 12)

[215] The then Minister of AANDC, Mr. John Duncan, responded to the 2012 Report of

the Standing Committee on Public Accounts (see Annex, ex. 22 [AANDC’s Response to

the 2012 Report of the Standing Committee on Public Accounts]). Of note, Minister

Duncan acknowledged the following:

I would also like to acknowledge the work of the Office of the Auditor

General in providing Parliament, the Government of Canada, and

Canadians with valuable insights into Canada’s approach to program

delivery for First Nations on reserves. I consider the six-page preface to

Chapter 4 of the 2011 Status Report of the Auditor General of Canada to be

an important roadmap for Parliament in moving forward on First Nation

issues.

[…]

I agree that many of the problems faced by First Nations are due to

the structural impediments identified – the lack of clarity about service levels,

lack of a legislative base, lack of an appropriate funding mechanism, and a

lack of organizations to support local service delivery.

[…]

Through the Enhanced Prevention Focused Approach for First

Nations Child and Family Services clarity about service levels and

comparability of services and funding levels have been addressed at

tripartite tables with the six provinces that have transitioned to the new

approach.

[…]

The Office of the Auditor General observed that there are challenges

associated with the use of contribution agreements to fund programs and

services for First Nations. For instance, agreements may not always focus

on service standards or the results to be achieved; agreements must be

renewed yearly and it is often unclear who is accountable to First Nations

members for achieving improved outcomes. In addition, contribution

agreements involve a significant reporting burden, and communities often

have to use scarce administrative resources to respond to the numerous

reporting requirements stipulated in their contribution agreements.

The Government of Canada recognizes that reliance on annual

funding agreements and multiple accountabilities when funding is received

from multiple sources can impede the provision of timely services and can

limit the ability of First Nations to implement longer term development plans.

To address these concerns, Aboriginal Affairs and Northern

Development Canada is implementing a risk-based approach to streamlining

funding agreements, and reporting requirements. The General Assessment

tool supports increased flexibility by assessing the capacity of recipients to

access a wider range of funding approaches, including multi-year funding

agreements. In addition, a pilot initiative with 11 First Nations communities is

currently being implemented using a new approach to reporting which is

increasing transparency and accountability at the community level by using

the First Nations website as a reporting tool and addressing capacity issues

created by the reporting burden.

(AANDC’s Response to the 2012 Report of the Standing Committee on

Public Accounts)

[216] The NPR, Wen:De reports and the Auditor General and the Standing Committee

reports all have identified shortcomings in the funding and structure of the FNCFS

Program. This was further demonstrated in other evidence presented to the Tribunal and

to which the Panel will return to below. First, however, we will outline the evidence

advanced with regard to the funding of child and family services under the 1965

Agreement in Ontario, along with the other provincial agreements in Alberta and British

Columbia.

c. 1965 Agreement in Ontario

[217] There is also evidence indicating shortcomings in the funding and structure of the

1965 Agreement in Ontario.

[218] In 1965, the federal government entered into an agreement with the Province of

Ontario to enable social services, including child and family services, to be extended to

First Nations communities on reserve. Around the same time, child welfare authorities in

Ontario began the large-scale removal of Aboriginal children from their homes and

communities, commonly referred to as part of the “Sixties Scoop”. Ms. Theresa Stevens,

Executive Director for Anishinaabe Abinoojii Family Services in Kenora, Ontario, described

how buses would drive into communities and take all the children away (see Transcript

Vol. 25 at pp. 28-30). As will be explained in more detail below, the collective trauma

experienced by many First Nations in Ontario as a result of the Sixties Scoop informs the

climate for the provision of child and family services in the province. The Panel

acknowledges the suffering of Aboriginal children, families and communities as a result of

the Sixties Scoop.

[219] The 1965 Agreement is a cost-sharing agreement where Ontario provides or pays

for eligible services up front and invoices Canada for a share of the costs of those services

pursuant to a cost-sharing formula. Eligible services for cost sharing under the 1965

Agreement are described in its Schedules. Mr. Phil Digby, Manager of Social Programs at

AANDC’s Ontario Regional Office, testified at the hearing and explained how the 1965

Agreement works. At the beginning of each fiscal year, Ontario provides AANDC with a

cash flow forecast. Once approved, AANDC provides Ontario with a one-month cash

advance, followed by monthly instalments. There is a 10% holdback on the payments,

which is paid out (with any adjustments) at the end of the year after an audit. There is no

overall cap on expenditures under the 1965 Agreement.

[220] The cost-sharing formula is set out at clause 3 of the 1965 Agreement and is based

on two elements: the “per capita cost of the Financial Assistance Component of the

Aggregate Ontario Welfare Program provided to persons other than Indians with Reserve

Status in Ontario”; and, the “per capita cost of the Financial Assistance Component of the

Aggregate Ontario Welfare Program provided to Indians with Reserve Status in Ontario”.

[221] According to Mr. Digby, social assistance is the area where there was the best data

that gave a good proxy for the proportionate share of costs and relative share of costs in

First Nations communities vis-à-vis the rest of Ontario. As of 2011-12 the average cost of

providing social assistance to persons living off reserve was approximately $200. For First

Nations living on reserve it was about $1,200. AANDC’s share of the costs is calculated by

taking 50% of the average cost of providing social assistance to persons living off reserve

(200 x 0.50 = 100) and dividing it by the average cost of providing social assistance to

persons living on reserve (100/1200 = 0.0833); subtracting the average cost of providing

social assistance to persons living off reserve from the average cost of providing social

assistance to persons living on reserve (1200 – 200 = 1000) and dividing that amount by

the average cost of providing social assistance to persons living on reserve (1000/1200 =

0.8333); and then, adding those two numbers together to arrive at the cost-sharing ratio

(0.0833 + 0.8333 = 0.9166). Pursuant to these numbers, AANDC paid approximately 92%

of the eligible costs under the 1965 Agreement in 2011-12. According to Mr. Digby, the

1965 Agreement cost-sharing formula recognizes the higher per capita costs of providing

social assistance to First Nations on reserves and AANDC’s agreement to take the

financial responsibility for these additional costs (see testimony of P. Digby, Transcript Vol.

59 at pp. 24-28).

[222] There are two mechanisms used by the province of Ontario to provide child welfare

services on reserve: (i) child welfare societies, including provincial child welfare agencies

and FNCFS Agencies; and (ii) service contracts for prevention services. There are seven

fully-mandated FNCFS Agencies in Ontario and they are funded according to the same

funding model as provincial child welfare agencies in Ontario. There are also six pre-

mandated FNCFS Agencies who do not have a full protection mandate and are in the

process of developing their capacity to become fully-mandated FNCFS Agencies. There

are also approximately 25 First Nations reserves that receive prevention services via

service contract.

[223] The 1965 Agreement has never undergone a formal review by AANDC. The

sections of the agreement dealing with child and family services have not been updated

since 1981, and the Schedules to the agreement have not been updated since 1998. This

is significant given in 1984 Ontario implemented the Child and Family Services Act, which

incorporated elements from other pieces of legislation (for example, youth justice and

mental health) to address the child and family services needs of Ontarians. At that time,

the Government of Canada took the position that AANDC did not have the mandate or

resources to start funding justice and health programs, as those types of programs would

fall under a different department (see testimony of P. Digby, Transcript Vol. 59 at p. 69).

[224] In 2000, the NPR recommended a tripartite review be done of the 1965 Agreement

(see at pp. 18 and 121). The 2008 Report of the Auditor General of Canada also noted

that there are provisions in the 1965 Agreement to keep it up-to-date and that they could

be used to ensure both the 1965 Agreement and the services that the federal government

pays for are current.

[225] The fact that the 1965 Agreement has not been kept up-to-date with Ontario’s Child

and Families Services Act was highlighted by Mr. Digby in a 2007 discussion paper (see

Annex, ex. 23 [1965 Agreement Overview]). The Panel finds the 1965 Agreement

Overview document to be relevant and reliable, especially given Mr. Digby’s involvement

in its authorship. According to the 1965 Agreement Overview discussion paper, at page 4,

issues raised by various stakeholders with regard to the 1965 Agreement and its

implementation include:

Concern that the agreement is bilateral, not tripartite, since First Nations

were not asked to be signatories in 1965. While clause 2.2 of the 1965

Agreement indicates that bands are to signify concurrence to the extension

of provincial welfare programs, this does not reflect the type of

intergovernmental relationship sought by many First Nations.

[…]

First Nations and the provincial government have, from time to time,

expressed interest in INAC cost-sharing additional provincial social service

programs to be extended on reserve. INAC has generally not had the

resources to ‘open up’ new areas for cost-sharing. […] There has been no

update to the agreement schedule with regard to cost-sharing child welfare.

As several programs within the provincial Child and Family Services Act

(CFSA) fall outside of INAC’s mandate, the department is not in a position to

‘open up’ discussion on cost-sharing the full CFSA.

[226] In 2011, the Commission to Promote Sustainable Child Welfare (the CPSCW)

prepared a discussion paper regarding Aboriginal child welfare in Ontario (see Annex, ex.

24 [CPSCW Discussion Paper]). The CPSCW was created by the Minister of Children and

Youth Services in Ontario to develop and implement solutions to ensure the sustainability

of child welfare. It reports to the Minister thereon. In light of this public mandate, the Panel

finds the discussion paper relevant and reliable to the issue of the provision of child and

family services to First Nations on reserve in Ontario.

[227] The CPSCW Discussion Paper, at page 4, begins by noting the impact of history on

many Aboriginal communities:

The combination of colonization, residential schools, the Sixties Scoop, and

other factors have undermined Aboriginal cultures, eroded parenting

capacity, and challenged economic self-sufficiency. Many Aboriginal people

live in communities that experience high levels of poverty, alcohol and

substance abuse, suicides, incarceration rates, unemployment rates, and

other social problems. Aboriginal children are disproportionately represented

in the child welfare system and in the youth justice system. Suicide rates for

Aboriginal children and youth surpass those of non-Aboriginals by

approximately five times. Aboriginal youth are 9 times more likely to be

pregnant before age 18, far less likely to complete high school, far more

likely to live in poverty, and far more likely to suffer from emotional disorders

and addictions.

[228] Despite these specific risk factors for Aboriginal peoples, the CPSCW Discussion

Paper notes that many provincial child welfare agencies give little attention to the

requirements for providing services to Aboriginal children set out in Ontario’s Child and

Families Services Act (see at p. 26). Specifically, the discussion paper points to sections

213 and 213.1 of the Child and Families Services Act whereby a society or agency that

provides services with respect to First Nations children must regularly consult with the

child’s band or community, usually through a Band Representative, about the provision of

the services, including the apprehension of children and the placement of children in care;

the provision of family support services; and, the preparation of plans for the care of

children.

[229] According to the CPSCW Discussion Paper, Band Representatives can be crucial

and tend to fulfill the following functions: serving as the main liaison between a Band and

Children’s Aid Societies [CASs]; providing cultural training and advice to CASs; monitoring

Temporary Care Agreements and Voluntary Service Agreements with CASs; securing

access to legal resources; attending and participating in court proceedings; ensuring that

the cultural needs of a child are being addressed by the CAS; and, participating in the

development of a child’s plan of care (see at p. 26).

[230] The CPSCW Discussion Paper indicates that, in the past, First Nations were

funded on a claims basis by the federal government to hire a Band Representative.

However, since 2003, that funding was discontinued. Therefore, some First Nations divert

resources from prevention services to cover the cost of a Band Representative, while

others simply do not have one (see CPSCW Discussion Paper at p. 26).

[231] Providing child welfare services in remote and isolated Northern Ontario

communities was also identified by the CPSCW Discussion Paper as a challenge for

CASs. Those challenges include the added time and expense to travel to the communities

they serve, where some communities do not have year round road access and where

flying-in can be the only option for accessing a community. In fact, one agency was

required to make up to 80 flights in a day.

[232] Another challenge for remote and isolated communities is recruiting and retaining

staff, especially qualified staff from the community. The legacy of the Sixties Scoop and

the association of CASs with the removal of children from the community have caused

some First Nations community members to resent or resist CAS workers and can create a

hostile working environment.

[233] Other challenges for remote and isolated communities are a lack of suitable

housing, which makes it difficult to hire staff from outside the community and to find

suitable foster homes; limited access to court; and, the lack of other health and social

programs, which impacts the performance and quality of child and family services (see

CPSCW Discussion Paper at pp. 28-29). On this last point, the CPSCW Discussion Paper

emphasizes that “[p]romoting positive outcomes for children, families and communities,

requires a full range of services related to the health, social, and economic conditions of

the community: child welfare services alone are not nearly enough” (at p. 29).

[234] The CPSCW Discussion Paper also notes that there are many distinct differences

between designated Aboriginal and non-Aboriginal CASs: they serve significantly larger

and less inhabited geographic areas with lower child and youth populations, they have

significantly larger case volumes per thousand, they serve more of their children and youth

in care versus in their own homes, and they have smaller total expenditures, but

significantly higher expenditures per capita and higher expenditures per case (see

CPSCW Discussion Paper at p. 29).

[235] Finally, in discussing the federal-provincial dynamics of providing child and family

services on reserve, the CPSCW Discussion Paper comments that instead of working

collaboratively towards providing effective service delivery to Aboriginal peoples, the

federal government has devolved some of its responsibilities for Aboriginal peoples to the

provincial governments, which contributes to some confusion over ultimate jurisdiction

(see CPSCW Discussion Paper at pp. 34-35).

[236] On this last point, in 2007 the Ontario Ministry of Children and Youth Services wrote

to AANDC expressing their concern over AANDC’s decision to no longer provide funding

for Band Representatives: “with the withdrawal of federal funding, many First Nations do

not have the financial resources required to participate in planning for Indian and native

children involved with a children’s aid society or to take part in child protection legal

proceedings” (Annex, ex. 25 at p. 2).

[237] In 2011, the Ontario Ministry of Children and Youth Services again wrote to AANDC

on the issue of funding for Band Representatives:

The paramount purpose of the CFSA is to “promote the best interests,

protection and well-being of children.” The band representative function

supports not only the purpose of the Act but also the other important

purposes and provisions to which the Act pertains. A lack of sufficient

capacity within First Nation communities limits their ability to respond

effectively and in accordance with legislated times frames for action. The

withdrawal of [INAC’s] funding for band representation functions has eroded

First Nations’ ability to participate as intended in the CFSA.

(Annex, ex. 26 at p. 2)

[238] Despite the discordance between Ontario’s Child and Families Services Act and

AANDC’s policy to no longer fund Band Representatives, Minister Duncan indicated that “it

falls within the responsibilities of First Nation governments to determine their level of

engagement in child welfare matters” and “we do not foresee the Government of Canada

providing funding support in this area” (Annex, ex. 27 at p.1).

[239] Ambiguity surrounding jurisdiction for the provision of mental health services to First

Nations youth has also been a cause for concern. When the Anishinaabe Abinoojii Family

Services agency sought a mandate to provide children’s mental health services, an

AANDC employee prepared a document to provide information to the Regional Director

General and Assistant Regional Directors General on the issue (see Annex, ex. 28

[Abinoojii Mental Health Services Mandate]). The Executive Director for Anishinaabe

Abinoojii Family Services, Ms. Stevens, testified as to the content of the document (see

Transcript Vol. 25 at pp. 174-178).

[240] According to the Abinoojii Mental Health Services Mandate document, there are

waiting lists for First Nations children served by the Abinoojii Family Services agency who

require mental health services. The document adds that while there is some cooperation

between mental health service organizations and the Abinoojii agency to manage these

waiting lists, there is also a need for more resources and culturally appropriate

assessment tools and counsellors. The Ministry of Children and Youth Services has a

Mental Health Policy for Children and Youth and has some resources for mental health

counselling, but the needs outstrip the funding (see Abinoojii Mental Health Services

Mandate at pp. 1-2).

[241] In considering the request, the Abinoojii Mental Health Services Mandate document

states that AANDC does not have a mandate for mental health services and that these

expenditures are not eligible under the 1965 Agreement. Rather, Health Canada has the

federal mandate on mental health and provides funding through a number of programs.

However, those programs focus more on prevention and mostly deal with adult issues.

Health Canada programs do not specifically deal with children in care and do not cover

mental health counselling (see Abinoojii Mental Health Services Mandate at p. 2).

[242] In a roundtable meeting between Abinoojii Family Services agency, AANDC, Health

Canada and the Ministry of Children and Youth Services for Ontario, Health Canada

recognized a need to look at the whole system as services/programs tend to work in silos

and raised the possibility of re-prioritizing resources or seeking additional funding. AANDC

indicated that the province is the lead on child welfare and Health Canada is the lead on

health issues at the federal level, but that it supports the work on examining existing

programs, outlining gaps and working together to ensure First Nations receive services

that are comparable and culturally appropriate (see Abinoojii Mental Health Services

Mandate at p. 2).

[243] In 2012, the Ontario Association of Children’s Aid Societies (the OACAS) produced

a report regarding trends in child welfare in Ontario, including in Aboriginal communities

(see Annex, ex. 29 [Child Welfare Report]). The OACAS is an advocacy group

representing the interests of 45 CASs member organizations. Governed by a voluntary

board of directors, OACAS consults with and advises the provincial government on issues

of legislation, regulation, policy, standards and review mechanisms. It promotes and is

dedicated to achieving the best outcomes for children and families (see Child Welfare

Report at p. 2). Given the OACAS’s mandate and focus, the Panel finds its report relevant

and reliable.

[244] According to the Child Welfare Report, the current funding model does not reflect

the needs of Aboriginal communities and agencies for several reasons including:

insufficient resources for services, where they tend to be crisis driven; shortage of funding

for administrative requirements; lack of funding to establish infrastructure necessary to

deliver statutory child protection services, while operating within the extraordinary

infrastructure deficits of many of the communities they serve; and, insufficient funds to

retain qualified staff to deliver culturally appropriate services (at p. 7). Among other things,

at page 7 of the Child Welfare Report, the OACAS asked the Ontario government to:

Establish an Aboriginal child welfare funding model and adequate funding to

support culturally appropriate programs that encompass the unique

experiences of diverse Aboriginal populations – on-reserve, off-reserve,

remote, rural, and urban. Invest in capacity building to enable the proper

recruitment, training and retention of child welfare professionals in emerging

Aboriginal Children’s Aid Societies.

[245] In terms of infrastructure and capacity building, the 1965 Agreement has not

provided for the cost-sharing of capital expenditures since 1975 (see testimony of P.

Digby, Transcript Vol. 59 at p. 93). Ms. Stevens explained the impact of this on her

organization: many high-risk children are sent outside the community to receive services

because there is no treatment centre in the community. Abinoojii Family Services spends

approximately 2 to 3 million a year sending children outside their community. According to

Ms. Stevens, there are not enough resources to build a treatment centre or develop

programs to assist these high-risk children because those funds are expended on meeting

the current needs of those children (see Transcript Vol. 25 at p. 32).

[246] Again, the above evidence on the 1965 Agreement identifies shortcomings in

AANDC’s approach to the provision of child and family services on First Nations reserves

in Ontario. In the provision of child and family services, the Panel finds the situation in

Ontario falls short of the objective of the 1965 Agreement“…to make available to the

Indians in the Province the full range of provincial welfare programs”.

d. Other provincial/territorial agreements

[247] As mentioned above, two other provinces have agreements with AANDC for the

provision of child and family services on reserve: Alberta and British Columbia. While in

the Yukon, the Yukon Funding Agreement applies.

[248] As mentioned above, the Yukon Funding Agreement applies to all First Nations

children and families ordinarily resident in the Territory. Schedule “DIAND-3” of the Yukon

Funding Agreement provides for the application of Directive 20-1 to the funding of child

and family services to those First Nations children and families.

[249] In Alberta and British Columbia, AANDC reimburses the provinces for the delivery

of child and family services to certain First Nations communities on reserve where there

are no FNCFS Agencies. In Alberta, six First Nations communities are served by the

Alberta Reform Agreement for child and family services. In British Columbia, seventy-two

First Nation communities receive services under the BC Service Agreement.

[250] Pursuant to the Alberta Reform Agreement, AANDC reimburses Alberta for the

costs of providing various social services, including child welfare services, to certain First

Nations reserves in the province. For those child welfare services, funding is provided at

the beginning of the fiscal year based on a funding formula using year-end costs of the

preceding fiscal year. Adjustments are made based on actual expenditures during the

fiscal year (see Alberta Reform Agreement at Schedule A, s. 1).

[251] In British Columbia, the BC MOU was in place from 1996 to 2012. Under the BC

MOU, AANDC reimbursed the province for eligible maintenance expenses based on a per

diem formula which accounted for the province’s administration, supervision and

maintenance costs (see BC MOU at s. 5.0; and Appendix B and D). The per diem rates

could be adjusted annually and the province could receive an adjustment to the previous

year’s per diem rates based on actual expenditures (see BC MOU at Appendix C). Those

adjustments included rate increases based on inflation and increased emphasis on

prevention services. For the fiscal year 2006/2007, the recalculation of per diem rates

resulted in an invoice to AANDC for over $5 million dollars (see Annex, ex. 30).

[252] In 2012, the BC MOU was replaced by the BC Service Agreement. The BC Service

Agreement now provides for reimbursement of maintenance expenses based on actual

expenditures. It also provides funding to the province for operations expenses based on a

costing model agreed to between the province and AANDC (see BC Service Agreement at

s. 7; and Appendix A). For fiscal year 2012-2013, operations funding amounted to $15

million.

[253] The Alberta Reform Agreement, the BC MOU and the BC Service Agreement

provide reimbursement for actual eligible operating and administrative expenditures,

including retroactive adjustments for inflation and increases for changes in programming.

This is quite different from FNCFS Agencies in those provinces, including under the EPFA

in Alberta, where there is no such adjustments for those types of increases in costs (see

testimony of C. Schimanke, Transcript Vol. 62 at pp. 53-54). As expressed in the 2008

Report of the Auditor General of Canada at page 19, these adjustments and

reimbursements for actuals are linked directly to provincial child welfare legislation:

4.49 INAC funds some provinces for delivering child welfare services directly

where First Nations do not. INAC has agreements with three of the five

provinces we covered on how they will be funded to provide child welfare

services on reserves. We found that in these provinces, INAC reimburses all

or an agreed-on share of their operating and administrative costs of

delivering child welfare services directly to First Nations and of the costs of

children placed in care. […]

4.50 INAC funding to cover the costs of operating and administering First

Nations agencies is established through a formula. Although the program

requires First Nations agencies to meet applicable provincial legislation, we

found that INAC’s funding formula is not linked to this requirement. The main

element of the formula is the number of children aged from 0 to 18 who are

ordinarily resident on the reserve or reserves being served by a First Nations

agency. […]

[254] The Panel will return to this comparison in the section that follows.

iii. AANDC’s position on the evidence

[255] AANDC argues the evidence above is not sufficient to establish adverse treatment

in the provision of funding for First Nations child and family services, including that there is

a lack of specific examples to support the allegation of a denial of such services. In sum, it

claims the reports and evidence regarding the FNCFS Program above should be given

little weight, that the choices of FNCFS Agencies in administering their budgets should be

considered in evaluating any adverse impacts, along with any additional funding they

receive beyond Directive 20-1 or the EPFA, that comparing the federal and

provincial/territorial funding systems is not a valid comparison under the CHRA, and, even

if it were, such comparative evidence is lacking in this case. Each argument is addressed

below.

a. The relevance and reliability of the studies on the FNCFS Program

[256] AANDC views the various studies of the FNCFS Program outlined above as having

little weight. It questions the comprehensiveness of the studies, noting the experience of a

few agencies does not establish differential treatment.

[257] The Panel finds the NPR and Wen:De reports to be highly relevant and reliable

evidence in this case. They are studies of the FNCFS Program commissioned jointly by

AANDC and the AFN. They employed a rigorous methodology, in depth analysis of

Directive 20-1, and consultations with various stakeholders. The Panel accepts the

findings in these reports. There is no indication that AANDC questioned the findings of

these reports prior to this Complaint. On the contrary, there are indications that AANDC, in

fact, relied on these reports in amending the FNCFS Program.

[258] In its October 2006 Fact Sheet (see Annex, ex. 10), AANDC acknowledged the

impacts and findings of the Wen:De reports, along with the NPR, and committed to

refocusing the FNCFS Program to improve outcomes for First Nations children and

families on reserve:

Currently, Program funding is largely based on protection services, which

encourage Agencies to remove First Nation children from their parental

homes, rather than providing prevention services, which could allow children

to remain safely in their homes.

 Program expenditures were $417 million in 2005-2006 and are expected to

grow to $540 million by 2010-11 if the program continues to operate under

the protection-based model.

 From 1996-97 to 2004-05, the number of First Nation children in care

increased by 64.34%.

 Approximately 5.8% of First Nation children living on reserve are in care

out of their parental homes.

Current Issues: First Nation children are disproportionately represented in

the child welfare system. Placement rates on reserve reflect a lack of

available prevention services to mitigate family crisis.

[…]

Changes in the landscape: Provinces and territories have introduced new

policy approaches to child welfare and a broader continuum of services and

programs that First Nations Child and Family Services must deliver to retain

their provincial mandates as service providers. However, the current federal

funding approach to child and family services has not let First Nations Child

and Family Services Agencies keep pace with the provincial and territorial

policy changes, and therefore, the First Nations Child and Family Services

Agencies are unable to deliver the full continuum of services offered by the

provinces and territories to other Canadians. A fundamental change in the

funding approach of First Nations Child and Family Services Agencies to

child welfare is required in order to reverse the growth rate of children

coming into care, and in order for the agencies to meet their mandated

responsibilities.

The Future: A Joint National Policy Review on First Nations Child and

Family Services, completed in 2000, recommended that the federal

government increase prevention services for children at risk-services that

must be provided before considering the removal of the child and placement

in out of home care-and that it provide adequate funding for this purpose.

 Indian and Northern Affairs Canada funded research undertaken by the

First Nations Child and Family Caring Society of Canada in 2004 and

2005. The reports: WEN: DE: We are coming to the light of day, and

WEN: DE: The journey continues, included recommendations for

investments and policy adjustments required to address the

shortcomings of the current system. This research will form the basis of

Indian and Northern Affairs Canada’s request for investments and

policy renewal.

[…]

 The Government of Canada is committed to working with First Nations,

provincial/territorial, and federal partners and agencies to implement a

modernized vision of the First Nations Child and Family Services

Program, a program that strives for safe and strong children and youth

supported by healthy parents.

 The strategy is to refocus the program from a protection-based

approach towards a preventive-based model, promote a variety of

care options to provide children and youth with safe, nurturing and

permanent homes, and build on partnerships and implement practical

solutions to improve child interventions services.

[259] Ms. Murphy and Ms. D’Amico also testified about AANDC’s reliance on the NPR

and Wen:De reports in implementing the EPFA (see Transcript Vol. 53 at pp. 46-47; and,

Vol. 54 at pp. 50-51).

[260] Internal AANDC documents presented at the hearing also support the department’s

adherence to the findings in the NPR and Wen:De reports. AANDC submits the Panel

should rely on the testimony of its witnesses rather than what is found in internal

documents, given that many of the authors did not testify before the Tribunal in order to

provide context and the documents may merely reflect the opinion of employees at a

specific time. Therefore, AANDC submits that the Tribunal should assess the weight of

documents contextually, with reference to oral evidence regarding their proper

interpretation, and considering the scope of the author’s authority to prepare the document

in question.

[261] The Panel has considered these arguments in weighing the evidence and finds the

documents relied upon below to be straightforward and clear. Many of these documents

are presentations prepared for, or delivered to, high level AANDC officials. The Panel finds

these presentations highly relevant and reliable given they are the means by which

information on the FNCFS Program is provided to AANDC management, including Deputy

or Assistant Deputy Ministers, in order to inform policy decisions or future requests to

Cabinet (see Transcript Vol. 54 at pp. 159, 166; and, Vol. 55 at p. 199). Furthermore, the

other AANDC documents referred to below corroborate the information found in those

presentations.

[262] A 2005 presentation to the ‘Policy Committee’ refers to the NPR by stating: “[a]

2000 review of FNCFS found that Indian Affairs was funding [FNCFS Agencies] 22% less,

on average, than their provincial counterparts” (see Annex, ex. 31 at p. 2 [Policy

Committee presentation]). The Policy Committee presentation, at page 3, goes on to state

that, despite maintenance expenditures increasing by 7% to 10% annually, the

Department only receives a 2% annual adjustment to the departmental budget. According

to the Policy Committee presentation at page 3, “[a]dditional investments are now required

for further stabilization for basic supports with respect to Enhanced Organizational

Support, and Maintenance Volume Growth.”

[263] The 2005 Policy Committee presentation also indicates FNCFS Agencies are

threatening to withdraw from service delivery because they cannot deliver provincially

mandated services within their current budgets. The presentation continues by stating that

provincial governments have written to the Minister of AANDC indicating their concern that

the department is not providing sufficient funding to permit FNCFS Agencies to meet

provincial statutory obligations. As a result, the Policy Committee presentation warns that

provinces may refuse to renew the mandates of FNCFS Agencies or give mandates to

new agencies (see at p. 4).

[264] In line with the NPR and Wen:De reports, the Policy Committee presentation states:

“In addition to enhanced basic supports for First Nation Child and Family Services,

fundamental change in the approach to child welfare is required in order to reverse the

growth rate of children coming into care” (at p. 5). In this regard, the presentation proposes

transformative measures be put in place to allow investment in prevention services

according to provincial legislation and standards (see at p. 6). This “[e]nables the

availability of a full spectrum of culturally-appropriate programs and services that would

eventually reduce the over representation of First Nations children in the child welfare

system” (Policy Committee presentation at p. 6). It also “…addresses immediate critical

funding pressures and would stabilize the child welfare situation on reserve” (Policy

Committee presentation at p. 6). Finally, according to the Policy Committee presentation,

“[i]ncreasing the budget for basic services would enable [FNCFS Agencies] to retain and

train staff and meet the increased costs of maintaining operations (e.g. cost of living

adjustment, legal fees, insurance, remoteness)” (at p. 6).

[265] Similarly, in another document entitled “First Nations Child and Family Services

(FNCFS) Q’s and A’s”, it states:

Circumstances are dire. Inadequate resources may force individual agencies

to close down if their mandates are withdrawn, or not extended by the

provinces. This would result in provinces taking over responsibility for child

welfare, likely at a higher cost to Indian and Norther Affairs Canada.

[…]

Over the past decade the trend in child welfare has been towards prevention

or least disruptive measures. INAC recognizes that the current funding

formula is not flexible enough to follow this trend and needs to be revised.

[…]INAC received authority in 2004-2005 to implement a Flexible Funding

Option for Maintenance resources. This will permit some agencies to

reprofile Maintenance resources to allow for greater flexibility in how these

funds are utilized by placing greater emphasis on prevention services.

Incremental Operations funding will assist agencies to a very limited extent

in providing additional prevention services. Additional Operations resources

will assist agencies in coping with funding pressures resulting from

increased legal fees, insurance costs and other operational expenses that

have not been adjusted for since Program Review was implemented in

1994-1995.

(Annex, ex. 32 at pp. 1-2, 5)

[266] Similarly, the 2005 National Program Manual, at page 14, section 2.2.3, outlines

some of the cost pressures experienced by FNCFS Agencies in terms of their operational

funding:

Although the authorities are clear on what to be included in the operations

formula, First Nations have expressed a concern that because the formula

was developed in the late 1980's, legislation, standards and practices have

changed significantly. Although the following items are included in the

Operations, First Nations have stated that Recipients are under increasing

pressures due to changes over time with respect to:

 Information Technology: In the late 1980's, use of computers was

limited. Today, however, they are vital to operating social programs

and services.

 Prevention (Least disruptive measures): Recent trends in provincial

and territorial legislation have placed a greater emphasis on

prevention. Although prevention resources were included in the current

formula, the level of funding may not provide enough resources to

meet current needs.

 Liability Insurance: As with prevention, the Operations formula includes

funding for insurance. However, since September 11, 2001 (9/11)

insurance costs have increased dramatically.

 Legal Costs: Although legal costs are included in the Operations

formula, they have become a larger issue than planned for when the

formula was developed. A higher incidence of contested cases plus

changes in provincial practice requiring cases to be presented by legal

representatives rather than social workers has resulted in higher costs.

Further, litigation on behalf of injured children can be very expensive,

even when adequate liability insurance is carried.

It is anticipated that the review of the Operational formula will address these

issues. At the present time, however, the current authorities must be applied.

(Emphasis added)

[267] In another document dealing with AANDC’s expenditures on Social Development

Programs on reserves it states that, despite the federal government acting as a province in

the provision of social development programs on reserve, federal policy for social

programs has not kept pace with provincial proactive measures and thus perpetuates the

cycle of dependency (see Annex, ex. 33 at pp. 1-2 [Explanations on Expenditures of

Social Development Programs document]). The document describes AANDC’s social

programs as “…limited in scope and not designed to be as effective as they need to be to

create positive social change or meet basic needs in some circumstances” (Explanations

on Expenditures of Social Development Programs document at p. 2). It goes on to say that

if its current social programs were administered by the provinces this would result in a

significant increase in costs for AANDC. The document provides the example of the

Kasohkowew Child Wellness Society in Alberta, where it would cost an additional $2.2

million beyond what AANDC currently funds if social services on that reserve reverted

back to the province of Alberta (see Explanations on Expenditures of Social Development

Programs document at p. 2).

[268] Correspondingly, a 2006 presentation regarding AANDC social programs on

reserves, including the FNCFS Program, describes those programs as being remedial in

focus, not always meeting provincial/territorial rates and standards, and not well-integrated

across jurisdictions (see Annex, ex. 34 at p. 5 [Social Programs presentation]). With

specific regard to the FNCFS Program, the presentation states that “efforts have been

concentrated on child protection and removal of the child from the parental home with the

result that the children in care rate continues to increase” (see Social Programs

presentation at p. 5).

[269] In general, the Social Programs presentation states that “[m]any First Nation and

Inuit children and families are not receiving services reasonably comparable to those

provided to other Canadians” (at p. 3). Relatedly, the presentation notes that

“[p]rovinces/territories have been critical of [AANDC] funding levels as they do not enable

First Nation service providers to meet the standards stipulated in provincial/territorial

legislation” (Social Programs presentation at p. 6). According to the presentation, the

delivery of social programs on reserves is hampered by the absence of legislation,

inadequate funding and a division of responsibilities between federal departments which

impedes comprehensive program responses (see Social Programs presentation at p. 3).

[270] In another presentation, AANDC describes Directive 20-1 as “broken”:

The current system is BROKEN, i.e. piecemeal and fragmented

The current system contributes to dysfunctional relationships, i.e.

jurisdictional issues (at federal and provincial levels), lack of coordination,

working at cross purposes, silo mentality

[…]

The current program focus is on protection (taking children into care) rather

than prevention (supporting the family)

[…]

Early intervention/prevention has become standard practice in the

provinces/territories, numerous U.S. states, and New Zealand

INAC CFS has been unable to keep up with the provincial changes

Where prevention supports are common practice, results have

demonstrated that rates of children in care and costs are stabilized and/or

reduced

(Annex, ex. 35 at pp. 2-3 [Putting Children and Families First in Alberta

presentation])

[271] The Putting Children and Families First in Alberta presentation touts prevention as

the ideal option to address these problems at page 4:

Early prevention and child-centered outcomes are the missing pieces of the

puzzle for FN children and families living on reserve

Early prevention supports the agenda for improving quality of life for children

and families thereby leading to improved outcomes in the areas of early

childhood development, education, and health

[272] Finally, the Putting Children and Families First in Alberta presentation states at

page 5:

The facts are clear:

 Wen:De Report - Early intervention/prevention is KEY

[…]

 First Nation agencies have been lobbying Canada since 1998 to

change the system

[273] AANDC’s Departmental Audit and Evaluation Branch also performed its own

evaluation of the FNCFS Program in 2007 (see Annex, ex. 14 [2007 Evaluation of the

FNCFS Program]). The findings and recommendations of the 2007 Evaluation of the

FNCFS Program reflect those of the NPR and Wen:De reports. Of note, at page ii, the

2007 Evaluation of the FNCFS Program makes the following findings:

Although the program has met an increasing demand for services, it is not

possible to say that is has achieved its objective of creating a more secure

and stable environment for children on reserve, nor has it kept pace with a

trend, both nationally and internationally, towards greater emphasis on early

intervention and prevention.

The program’s funding formula, Directive 20-1, has likely been a factor in

increases in the number of children in care and Program expenditures

because it has had the effect of steering agencies towards in-care options -

foster care, group homes and institutional care because only these agency

costs are fully reimbursed.

[274] In response to these findings, the 2007 Evaluation of the FNCFS Program made six

recommendations at page iii, including that AANDC:

1. clarify the department’s hierarchy of policy objectives for the First Nations

Child and Family Services Program, placing the well-being and safety of

children at the top;

2. correct the weakness in the First Nations Child and Family Services

Program’s funding formula, which encourages out-of-home placements for

children when least disruptive measures (in-home measures) would be more

appropriate. Well-being and safety of children must be agencies’ primary

considerations in placement decisions;

[275] The 2007 Evaluation of the FNCFS Program goes on to state that the first step in

improving the FNCFS Program is to change Directive 20-1 by providing FNCFS Agencies

with a new funding stream that ensures adequate support for prevention work (see at p.

35). In discussing the costs and benefits of increasing the FNCFS Program’s focus on

prevention, the cost estimates provided in Wen:De Report Three are outlined, including

the $22.9 million for new management information systems, capital costs (buildings,

vehicles and office equipment), and insurance premiums; and, the $86.4 million for annual

funding needs for such things as an inflation adjustment to restore funding to 1995 levels,

adjusting the funding formula for small and remote agencies, and increasing the

operations base amount from $143,000 to $308,751 (see 2007 Evaluation of the FNCFS

Program at pp. 35-36).

[276] In a September 11, 2009 response to questions raised by the Standing Committee

on Aboriginal Affairs and Northern Development, Deputy Minister Michael Wernick

described the EPFA as an “…approach that will result in better outcomes for First Nation

children” (Annex, ex. 36). Mr. Wernick’s response indicates AANDC’s awareness of the

impacts that the structure and funding for the FNCFS Program under Directive 20-1 has

on the outcomes for First Nations children.

[277] Similarly, at the hearing, Ms. Murphy described the EPFA as follows:

MS MacPHEE: Okay. And I think you touched on this earlier, but I wanted to

get you to elaborate a little bit more. Could you tell us a little bit how, more

specifically maybe, the new Enhanced Prevention Focused Approach was

developed? You know, what was the impetus for developing this new

approach?

MS MURPHY: We weren't getting good outcomes. MS MURPHY: We were

having challenges with First Nations, we were having challenges with the

number of children in care, and we wanted to reduce that number and we

wanted to have kids be safe and we wanted to avoid having kids having to

come into care. I mean, the challenge for first Nations communities -- and

I'm sure this has already been outlined here by others, is that, especially for

small, remote communities, when child needs to be taken into care,

sometimes there's not community-based options, so the child may not stay

in that community. And taking a child away from their family and from their

community has impacts for sure. So we wanted to find community-based

solutions so kids could stay in their communities, be close to – and hopefully

have the families be able to be reunited. So we wanted to do that early

intervention work which would actually avoid having to have the children

actually being removed from their parental home and perhaps being located

outside at a distance from their community.

(Transcript Vol. 54 at pp.49-50)

[278] However, as the 2008 Report of the Auditor General of Canada, the 2009 Report of

the Standing Committee on Public Accounts, the 2011 Status Report of the Auditor

General of Canada, and the 2012 Report of the Standing Committee on Public Accounts

pointed out, while the EPFA is an improvement on Directive 20-1, it still relies on the

problematic assumptions regarding children in care, families in need, and population levels

to determine funding. Furthermore, many provinces and the Yukon remain under Directive

20-1 despite AANDC’s commitment to transition those jurisdictions to the EPFA.

[279] AANDC argues the 2008 Report of the Auditor General of Canada, and the 2011

Status Report of the Auditor General of Canada, should also be given minimal weight

since the authors of the reports were not called to substantiate the documents or provide

the context of statements or opinions contained therein. Additionally, AANDC argues these

reports are not probative of the facts in issue.

[280] The Panel rejects AANDC’s arguments concerning the 2008 Report of the Auditor

General of Canada and the 2011 Status Report of the Auditor General of Canada. The

Auditor General of Canada did not testify before the Tribunal as she or he is not a

compellable witness (see section 18.1 of the Auditor General Act). Nevertheless, the

Panel is satisfied the 2008 Report of the Auditor General of Canada and 2011 Status

Report of the Auditor General of Canada are highly reliable, relevant, and clear. They are

written to report findings in a comprehensive manner so as to allow Parliament and all

Canadians to understand its recommendations. As stated at section 7(2) of the Auditor

General Act, reports of the Auditor General of Canada are filed annually with the House of

Commons in order to “…call attention to anything that he considers to be of significance

and of a nature that should be brought to the attention of the House of Commons…”.

[281] Given that the Auditor General is an independent public office in Canada, serving

the interests of all Canadians, it would be unreasonable to expect the Panel give little or no

weight to the report and findings in the 2008 Report of the Auditor General of Canada and

the 2011 Status Report of the Auditor General of Canada, especially given the fact that

many findings in the reports are specific to the FNCFS Program. In addition, as was

outlined above, AANDC publicly accepted the recommendations emanating from the 2008

Report of the Auditor General of Canada and the 2011 Status Report of the Auditor

General of Canada, reinforcing the reports’ relevance and reliability in this matter. The

Panel accepts the findings of the 2008 Report of the Auditor General of Canada and the

2011 Status Report of the Auditor General of Canada.

[282] Similarly, the Panel finds the 2009 Report of the Standing Committee on Public

Accounts and the 2012 Report of the Standing Committee on Public Accounts to be highly

relevant and reliable in this case. In addition to the fact that the reports relate directly of the

FNCFS Program, they are also authored by elected officials performing public duties for

the benefit of all Canadians. High ranking officials from AANDC were able to testify before

the Committee and, in doing so, acknowledged the findings in those reports. Again, the

Panel accepts the findings of the 2009 Report of the Standing Committee on Public

Accounts and the 2012 Report of the Standing Committee on Public Accounts.

[283] The statements of the Deputy Minister and Assistant Deputy Minister before the

Standing Committee on Public Accounts also indicate that they viewed the EPFA as the

solution to address the flaws in Directive 20-1. Again, internal AANDC documents support

the findings in the 2008 Report of the Auditor General of Canada, the 2009 Report of the

Standing Committee on Public Accounts, the 2011 Status Report of the Auditor General of

Canada and the 2012 Report of the Standing Committee on Public Accounts, regarding

the need to transition those jurisdictions still under Directive 20-1 to the EPFA, while also

acknowledging the need to improve the EPFA.

[284] In 2010, AANDC’s Evaluation, Performance Measurement and Review Branch did

its own evaluation of the implementation of the EPFA in Alberta (see Annex, ex. 37

[AANDC Evaluation of the Implementation of the EPFA in Alberta]). The evaluation found

that the design of the EPFA was a move in the right direction with potential for positive

outcomes. However, it identified some challenges with the EPFA model, including: timing,

provincial requirements, human resources shortages, salaries, support from

government/agency management, community linkages, training and geographical

isolation. All these were considered by FNFCS Agencies to be essential to the successful

implementation of the approach. An additional challenge identified is ensuring that reliable

data is collected to allow for accurate performance measurement and some comparability

of prevention services (see AANDC Evaluation of the Implementation of the EPFA in

Alberta at pp. vi, 11,16-17, 21-24).

[285] Moreover, the evaluation noted that, as the EPFA is based on an annual allocation

for most aspects and some pieces being determined by a formula, “there is not the

flexibility to respond quickly to changes in provincial policy or other external drivers…”

(AANDC Evaluation of the Implementation of the EPFA in Alberta at p. 27). According to

the evaluation, this lack of flexibility “…is common to INAC programs that adhere to

provincial legislation and […] [is] an in-built risk to the program” (AANDC Evaluation of the

Implementation of the EPFA in Alberta at p. 27).

[286] Furthermore, several jurisdictional issues were identified as challenging the

effectiveness of service delivery, notably the availability and access to supportive services

for prevention. In this regard, the evaluation noted that a common implementation

challenge for FNCFS Agencies was the need for specialized services at the community

level (for example, Fetal Alcohol Spectrum Disorder assessments, therapy, counselling

and addictions support). Moreover, the evaluation found of key importance the availability

and access to supportive services for prevention. According to the evaluation, these

services are not available through AANDC funding, though they are provided by other

government departments and programs either on reserve or off reserve (see AANDC

Evaluation of the Implementation of the EPFA in Alberta at pp. 16-18, 21-24).

[287] The evaluation recommended revisiting the EPFA funding model within the next

year to learn from the past two years of implementation and to incorporate additional

resources to address some of the issues faced by rural and remote communities. As part

of this review, it recommended AANDC also determine if the calculations that are based

on assumed population of children in care are relevant in achieving desired outcomes (see

AANDC Evaluation of the Implementation of the EPFA in Alberta at p.i).

[288] In 2012, the Evaluation, Performance Measurement and Review Branch of AANDC

also did its own evaluation of the implementation of the EPFA in Saskatchewan and Nova

Scotia (see Annex, ex. 38 [AANDC Evaluation of the Implementation of the EPFA in

100

Saskatchewan and Nova Scotia]; see also, Annex, ex. 39). Again, the findings are in line

with those of the other reports on the FNCFS Program.

[289] The 2012 evaluation found it was unclear whether the EPFA is flexible enough to

accommodate provincial funding changes (see AANDC Evaluation of the Implementation

of the EPFA in Saskatchewan and Nova Scotia at p. 51). It noted both the Saskatchewan

and Atlantic regional offices struggle to effectively perform their work given staffing

limitations, including staffing shortages, caseload ratios that exceed the provincial

standard, and difficulty recruiting and retaining qualified staff, particularly First Nation staff

(see AANDC Evaluation of the Implementation of the EPFA in Saskatchewan and Nova

Scotia at p. 51). Capital expenditures on new buildings, new vehicles and computer

hardware were identified as being necessary to achieve compliance with provincial

standards, but also as making FNCFS Agencies a more desirable place to work. However,

these expenditures were not anticipated when implementing the EPFA and were identified

as often being funded through prevention dollars (see AANDC Evaluation of the

Implementation of the EPFA in Saskatchewan and Nova Scotia at p. 49).

[290] One of the main challenges identified in the implementation of the EPFA in

Saskatchewan and Nova Scotia was unrealistic expectations, largely by community

leadership, of what agencies are able to achieve with the funding they receive. According

to the evaluation, community leadership occasionally expect agencies to cover costs that

are social in nature but that do not fall under the agency’s eligible expenditures. That is,

the conditions which contribute most to a child’s risk are conditions that the child welfare

system itself does not have the mandate or capacity to directly address, including

economic development, health programing, education and cultural integrity (see AANDC

Evaluation of the Implementation of the EPFA in Saskatchewan and Nova Scotia at pp.

35, 49, 51). The AANDC Evaluation of the Implementation of the EPFA in Saskatchewan

and Nova Scotia states, at page 49: “AANDC could improve its efficiency by having a

better understanding of other AANDC or federal programming that affect children and

parents requiring child and family services and facilitating the coordination of these

programs”.

101

[291] Difficulties based on remoteness were also identified as a main challenge in

Saskatchewan and Nova Scotia. One third of agencies reported high cost and time

commitments required to travel to different reserves, along with the related risks

associated with not reaching high-risk cases in a timely manner. In Nova Scotia, where

there is only one FNCFS Agency with two offices throughout the province, the evaluation

noted it can take two to three hours to reach a child in the southwestern part of the

province. On the other hand, the provincial model is structured so that its agencies are no

more than a half-hour away from a child in urgent need. In extreme cases, the Nova Scotia

FNCFS Agency has had to rely on the provincial agencies for assistance. According to the

evaluation, because of these issues the province of Nova Scotia has recommended that

AANDC provide funding to support a third office in the southwestern part of the province

(see AANDC Evaluation of the Implementation of the EPFA in Saskatchewan and Nova

Scotia at pp. 35-36).

[292] In an August 2012 presentation, entitled “First Nations Child and Family Services

Program (FNCFS) The Way Forward”, Ms. Odette Johnson, Director of the Children and

Family Services Directorate of AANDC outlined to Françoise Ducros, Assistant Deputy

Minister, ESDPPS, the need to reassess the EPFA (see Annex, ex. 40 [the Way Forward

presentation]). The purpose of the presentation was “[t]o provide options and seek

approval for next steps in the reform of the FNCFS Program” (Way Forward presentation

at p. 2). It identifies the drivers behind this reform as: the provincial/territorial shift to

prevention, the high numbers/costs of First Nation children in care, AANDC internal audits

and evaluations of the FNCFS (along with those of the Auditor General), the reports of

Parliamentary Committees, the human rights complaint, and child advocate reports and

other research (see the Way Forward presentation at p. 5).

[293] According to the Way Forward presentation, “[a]udits and evaluations of between

2008 and 2012 demonstrate a need for the EPFA, but also a need to annually review the

EPFA formula as constant provincial changes make it difficult to stay current and enable

Agencies to provide a full range of child welfare services” (at p. 9). Furthermore,

“[p]rovinces have been shifting their caseloads towards greater emphasis on intake and

102

investigation which may not have been part of original EPFA discussions and are now

creating pressures on Agencies” (see the Way Forward presentation at p. 9).

[294] At page 13, the Way Forward presentation provides a comparative table of “where

we are” and “where we need to go”:

Where we are

Where we need to go

Taking children into care and some

work with families in the home

→

Taking children in care for critical cases

but more with the families in the home.

Fund agencies and provinces for

basic protection services and some

prevention with families in the home.

→

Either fund full range of services provided

by provinces (differs among jurisdictions)

OR transfer child welfare on reserve to

the Provincial/Territorial governments.

Initial investments in EPFA in 6

jurisdictions but not necessarily

addressing all aspects of child welfare.

→

EPFA in all jurisdictions fully costed at

$108.13M, supporting all aspects of child

welfare including intake, early

intervention and allowing for

developmental phase.

Developing some capacity for

prevention in communities.

→

All communities have capacity in

prevention.

[295] The presentation proposes three options to address these issues: (1) implement

EPFA in the remaining jurisdictions; (2) expand the EPFA with increased investments to

address cost drivers, including implementing the model in the remaining jurisdiction; and,

(3) transfer the program to the provinces/territories.

[296] Under option 1, the costs of transferring the remaining jurisdictions to EPFA are

estimated at: $21 million for British Columbia; $2 million for the Yukon; $5 million for

Ontario; $2 million for New Brunswick; and, $2 million for Newfoundland and Labrador.

(see Way Forward presentation at p. 15). There is also an additional $4 million listed for

“Maintenance” which Ms. Murphy explained as an infusion of additional funds to avoid

having to re-allocate money from elsewhere in AANDC to cover additional costs that go

beyond the standard funding formula (see Transcript Vol. 54 at pp. 167-168). Furthermore,

an additional $2 million is estimated for “Strength and Accountability” to allow AANDC to

better administer the FNCFS Program internally (see testimony of S. Murphy, Transcript

Vol. 54 at pp. 168).

[297] The presentation lists as a “PRO” for this option the recognition that the FNCFS

Program cannot address all root causes of the over-representation of children in care.

103

Under “CONS” it states the “5-year EPFA funding envelope may not be addressing

provincial cost drivers or funding pressures related to the operational efficiencies of

Agencies” (Way Forward presentation at p. 15). According to Ms. Murphy, who stated she

had signed off on the presentation, the major cost drivers are increases in the rates for

maintaining children in care, growth in the number of children that come into care and

salary increases (see Transcript Vol. 54 at pp. 158-159, 179 and 181). She elaborated on

the “CON” for option 1 as follows:

So with this option we were talking about maintenance, but we

weren't necessarily dealing with all of the cost drivers that we were

observing.

So, as an example, we know that the cost of foster care is going up

and so, Agencies are trying to pay those bills and we hadn't properly

calculated that in our model.

This option wasn't trying to re-stabilize the existing EPFA jurisdictions

for the cost changes that had happened since we introduced the funding

models, it was really about the five. So it was sort of the minimum option at

the time.

(Transcript Vol. 54 at p. 169)

[298] For option 2, the implementation of the expanded EPFA in the remaining

jurisdictions is estimated at $65.03 million, while topping-up the existing EPFA jurisdictions

is estimated at $43.10 million, for a total of $108.13 million. In addition to these amounts,

the presentation indicates that a 3% escalator will be required every year. The “PROS” of

this option are that it ensures agencies are able to meet changing provincial standards and

salary rates while maintaining a high level of prevention programming; and, that funding

remains reasonably comparable with provinces and territories. Under “CONS”, the

presentation states: “Option 2 is more costly than Status Quo EPFA implementation” (Way

Forward presentation at p. 16). During testimony, Ms. Murphy was asked whether the

“PROS” of this option suggest that AANDC is not able to provide a reasonably comparable

level of services under the FNCFS Program. Ms. Murphy responded:

It has always been our intention to provide reasonably comparable

services.

104

We were noticing trends in increasing kids in care and we were

having stresses in our budget to be able to maintain those levels and, of

course, the Department's doing re-allocations, but we weren't – we noticed

changes for sure and we needed to keep up with those changes and we

weren't necessarily being successful in all cases of being able to do that.

(Transcript Vol. 54 at pp. 163-164)

[299] Finally, the third option of transferring child welfare on reserve to the

provinces/territory does not have an estimated cost, but the presentation indicates there is

“[p]otential for dramatic increases in costs” (Way Forward presentation at p. 17). As Ms.

Murphy put it:

it’s certainly expected that if you were to ask someone else to start to take

on the delivery of a program, they’re going to have their administrative cost

structure, they’re going to potentially look for funds to offset the cost of them

assuming that role.

[…]

It doesn’t mean that it would. We didn't -- necessarily hadn't costed

any of that, but we wanted to at least highlight that there might be a potential

for an increase in costs because we might have to absorb, for instance,

increased administrative costs that weren't necessarily there right now in the

way that we're funding individual Agencies.

And other costs, we don't know. They may want to negotiate other

things as part and parcel of taking on that responsibility and we wouldn't wait

until you got to negotiation to find out what that was.

(Transcript Vol. 54 at pp. 166-167).

[300] The “PROS” of option 3 include: comparability issue would be resolved and better

oversight/compliance of child and family services on reserve. Along with the potential for a

dramatic increase in costs, the presentation also includes as “CONS” for this option that

support for all First Nations is uncertain, and that it involves complimentary programs,

therefore, it is a big task to implement and involves cost implications beyond AANDC (Way

Forward presentation at p. 17).

[301] Following on the Way Forward presentation, in two similar presentations in October

and November 2012, Ms. Murphy expanded on the options for reforming the FNCFS

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Program (see testimony of S. Murphy, Transcript Vol. 55 at p. 199). In these presentations

Ms. Murphy proposed that AANDC complete the reform of the FNCFS Program to EPFA

in the remaining jurisdictions (estimated at $139.7 million over 5 years and $36.6 million

ongoing); stabilize pressures in existing EPFA jurisdictions (estimated at 164.1 million over

5 years); add a 3% escalator per year for all jurisdictions to ensure provincial/territorial

comparability (estimated at $105.5 million over 5 years and $23.9 million ongoing); and

seek additional resources for increased program management and strengthened

accountability (estimated at $11.2 million over 5 years and $2.3 million ongoing) (see

Annex, ex. 41 at p. 2 [the Renewal of the First Nations Child and Family Services Program

(October 31, 2012) presentation]; and, Annex, ex. 42 at pp. 2, 5 [the Renewal of the First

Nations Child and Family Services Program (November 2, 2012) presentation]).

[302] The need for this increased funding is explained as:

Maintenance rate increases for children in care have far exceeded the two

percent AANDC receives annually. As a result, the Department must

reallocate funds from other program areas to cover the deficit.

AANDC must pay the costs to support children in care and these costs are

still rising dramatically. As maintenance rates are essentially dictated by

provinces, AANDC has no choice but to support the costs of children in care

based on these rates.

In addition, no program escalator was approved for any funding model used

by the FNCFS Program to help address increased costs over time and to

ensure that prevention-based investments more closely match the full

continuum of child welfare services provided off reserve.

[…]

Currently, AANDC has very limited human resources dedicated to the

FNCFS Program.

No funding for strengthened accountability for results was provided when

EPFA was approved in 2007.

AANDC’s activities have increased dramatically with the implementation of

EPFA in the 6 jurisdictions.

AANDC is currently limited in how effectively it can manage and monitor the

program while developing tripartite partnerships to fully implement EPFA.

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(Renewal of the First Nations Child and Family Services Program (October

31, 2012) presentation at pp. 5-6)

[303] In Ms. Murphy’s view, while positive outcomes from the EPFA have been identified,

“the program is losing ground due to increasing provincial costs” (Renewal of the First

Nations Child and Family Services Program (November 2, 2012) presentation at p. 3).

Furthermore, she views her proposal as addressing “…rising maintenance costs in all

jurisdictions”, it “allows the program to accommodate provincial rate changes thereby

maintaining comparability”, and “will allow agencies to devote appropriate resources to

prevention, which will lead to a decrease in long term care placements in the medium to

longer term” (Renewal of the First Nations Child and Family Services Program (November

2, 2012) presentation at p. 6). The impacts of no new investments in the FNCFS Program

would, according to Ms. Murphy, “…not advance improved outcomes for First Nations

children and their families” and “[t]he Government of Canada will not be able to sustain

reasonable provincial comparability for child welfare support” (Renewal of the First Nations

Child and Family Services Program (November 2, 2012) presentation at p. 8). At the

hearing, Ms. Murphy was asked to expand on this last point:

MEMBER BELANGER: "The Government of Canada will not be able to

sustain reasonable provincial comparability for child welfare support." What

are we comparing here?

MS MURPHY: I think what we were saying there was that we were starting

to have issues in terms of being able to match salaries and the costs of

keeping children in care, those other elements that I have laid out, and that

so we may have trouble paying those bills.

We are paying those bills now, but if you keep going, at some point you hit

the wall and you don't have the ability to continue to reallocate, you put at

risk that policy concept of comparability.

(Transcript Vol. 55 at p. 216)

[304] For reasons that were not elaborated upon at the hearing, the above options and

recommendations were not implemented in AANDC’s 2013 or 2014 budgets (see

Transcript Vol. 55 at pp. 206-208, 221; see also Transcript Vol. 61 at pp. 159-162).

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[305] Overall, on the issue of the relevance and reliability of the reports on the FNCFS

Program, the Panel finds that from the years 2000 to 2012 many reliable sources have

identified the adverse effects of the funding formulas and structure of the FNCFS Program.

AANDC was involved in the NPR and Wen:De reports, and acknowledged and accepted

the findings and recommendations in the Auditor General and Standing Committee on

Public Account’s reports, including developing an action plan to address those

recommendations. As the internal evaluations and other relevant and reliable AANDC

documents demonstrate, those studies and reports became the basis for reforming

Directive 20-1 into the EPFA and, subsequently, recommendations to reform the EPFA. It

is only now, in the context of this Complaint, that AANDC raises concerns about the

reliability and weight of the various reports on the FNCFS Program outlined above.

Moreover, the internal documents discussed above support those reports and are

AANDC’s own evaluations, recommendations and presentations prepared by its high

ranking employees. For these reasons, the Panel does not accept AANDC’s argument

that the reports on the FNCFS Program have little or no weight and accepts the findings in

those reports, along with the corroborating information in documents relied on above.

b. The choices of FNCFS Agencies and additional funding provided

[306] AANDC argues the difference between the level of services and programs offered

on and off reserve may have little to do with funding and more to do with the choices made

by FNCFS Agencies about the type of services and programs they want to provide and

other administrative issues affecting the overall budget. For example, some agencies

decide to allocate funds to the salaries of their board members when the budget should be

spent on front line services. Also, AANDC points out that some agencies are successful

with their budget, including some agencies who have posted surpluses. AANDC submits it

also provides additional funding or reallocates funds where FNCFS Agencies require

further funding. Therefore, if there are gaps in funding, AANDC contends it has bridged

those gaps through additional funds.

[307] As outlined above, Directive 20-1 and the EPFA have certain assumptions built into

their funding formulas. In general, that the child population they serve is 1000 children

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aged 0-18, that 6% of the total on reserve child population is in care, and that 20% of

families are in need of services. Ms. D’Amico explained the use of assumptions as

providing stability for FNCFS Agencies. That is, even if less than 6% of its children are in

care and 20% of its families are in need of services, it would not reduce the agency’s

budget. That may indeed be a beneficial situation for agencies where these assumptions

accurately reflect their clientele and may even result in the agency receiving a surplus of

funding. However, on this last point, the Panel notes Wen:De Report Two stated: “Not

surprisingly, it was only BC agencies that advised that they had surpluses and, in almost

all cases, the surplus came from the maintenance per diem arrangement” (at p. 213).

More fundamentally though, where the assumptions do not accurately reflect the clientele

of an FNCFS Agency - where the percentage of children in care and families in need of

services is higher than 6% and 20% respectively - the funding formula is bound to provide

inadequate funding.

[308] In 2006, 18 FNCFS Agencies had over 10% of their children in care out of the

parental home (see Social Programs presentation at p. 13). In the same year, there were

257 First Nations communities on reserves with no access to child care and many more

communities did not have enough resources to support 20% of children from birth to six

years of age (see Social Programs presentation at p. 14).

[309] For Alberta, Ms. Schimanke indicated that most FNCFS Agencies have around 6%

of children in care, but there are some that have anywhere from 11 to 14% (see Transcript

Vol. 61 at pp. 113-115). Also, as stated above in the 2008 Report of the Auditor General of

Canada, in the five provinces covered by the report, the percentage of children in care

ranged from 0 to 28%.

[310] In Manitoba, Ms. Elsie Flette, Chief Executive Office of the First Nations of

Southern Manitoba Child and Family Services Authority (since retired), described the

effects of the assumptions on FNCFS Agencies:

If you're an Agency that has, you know, five percent of its child

population in care, you benefit from that assumption, you're being paid by

AANDC as if seven percent of your kids were in care. So, you're getting

more money and you don't have the cases, you don't have the children in

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care that you have to spend that money on and, so, you have some flexibility

for how else to use that money.

But if you're an Agency that has more than seven percent of its

children in care, you have a problem. And we have in the Southern Authority

I believe right now four Agencies that exceed those assumptions. And one of

them in particular, they have -- 14 percent of their child population is in care,

so, they have exactly half of the kids in care for which they receive no

money.

When we look at the families and prevention services, I believe

there's about five Agencies that exceed that 20 percent. The same Agency

that has the 14 percent children has a 40 percent families, so, 40 percent of

their families on- Reserve are getting service.

They're funded for 20 percent. So, half their workload both for families

and for kids is completely unfunded, they get no money. So, anything they

might have for prevention they can't do because all their money has to go –

they have these kids, they need workers, they have to service that pop --

that workload and there's no way -- under the funding model itself, there's no

way to adjust for that.

[…]

So, it's not an accurate -- it is an accurate average percent, but for

individual Agencies it's often inaccurate, you can have lower numbers or, in

particular, if you have higher than seven percent you have unfunded

workload.

(Transcript Vol. 20 at pp. 104-105, 118)

[311] While additional funds have been provided or reallocated to cover maintenance

expenditures and/or some ad hoc exceptional circumstances, FNCFS Agencies are

expected to cover their operations and prevention costs within their fixed budgets,

including using those funds to cover any deficits in maintenance expenditures. Those

budgets are based on the formulas that, again, do not account for the actual needs of the

FNCFS Agencies. They are also static formulas. That is, as the years go by, the formulas

become more and more disconnected from the actual needs of FNCFS Agencies and the

children and families they serve. Specifically, the formulas do not apply an escalator for

regular increases in costs, including for salaries, where the bulk of funding is spent. While

Directive 20-1 calls for a cost of living increase of 2% every year, that increase has not

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been applied since 1995-1996. Similarly, once EPFA is implemented in a jurisdiction,

aside from adjustments for population size, yearly increases in costs are not accounted for

in the funding formula. In Alberta for example, as indicated above, funding under EPFA is

provided based on provincial rates from 2006. According to an AANDC official, it is up to

FNCFS Agencies to work with the budgets they have:

MR. POULIN: So for an Agency that is over 6 percent, where you

need more protection workers, that component, all that component will be

eaten up, that operations budget will be eaten up with what is essential to

meet your immediate needs, and so that leaves very little for anything like

brief services.

MS SCHIMANKE: It could be. It depends how they set their budget

and how they set their salary grids. Like, again, that is the Agencies that

decide that, right, and how they manage that.

MR. POULIN: That means paying -- you know, that means in effect

paying your workers less than what the province does.

MS SCHIMANKE: It could be, yes. That could be one example of

things, yes.

MR. POULIN: It could be having less workers and therefore having a

higher case ratio than your workers -- than the province does.

MS SCHIMANKE: It could be, yes.

I do have to show, though, that there are Agencies who are above

the 6 percent who still show surpluses, so I don't know what they are doing

differently. It could be their salaries have been adjusted very low; we don't

know what they are doing to make that happen. It may be they're short-

staffed and they are just not -- and the staff are carrying higher caseloads,

yeah. So there are various examples of what different Agencies are doing,

yes.

(Transcript Vol. 62 at pp. 51-52)

[312] These last statements highlight the dichotomy between the objective of the FNCFS

Program and its actual implementation through Directive 20-1 and the EPFA. While the

program is premised upon provincial comparability, the funding mechanisms do not allow

many FNCFS Agencies, particularly those agencies that do not match AANDC’s

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assumptions about children in care and families in need, to keep up with provincial

standards and changes thereto.

[313] As noted by the reports on the FNCFS Program, given that funding under Directive

20-1 and the EPFA is largely based on population levels, small and remote agencies are

also disproportionately affected by AANDC’s funding formulas. In British Columbia for

example, small agencies are the norm, not the exception, including many that serve rural

and isolated communities. Their challenges include added costs for travel, accessing the

communities they serve and getting and retaining staff (see testimony of W. McArthur,

Transcript Vol. 63 at p. 87).

[314] Given these agencies are funded pursuant to Directive 20-1, most do not have the

flexibility or resources necessary to provide prevention services, even with additional

funds. In these rural and isolated communities, it is also difficult for First Nations people to

access services which are available off reserve, including: mental health services; services

to strengthen families; and services for family preservation and reunification (see Annex,

ex. 43; see also testimony of W. McArthur, Transcript Vol. 63 at p. 87 and Vol. 64 at pp. 6,

167). Despite moving FNCFS Agencies in British Columbia to funding based on actuals in

2011, with the intent to transition them to the EPFA shortly thereafter to address some of

these concerns; and, despite the repeated requests of FNFCS Agencies and the province

of British Columbia, that transition had yet to occur at the time of the hearing and no

announcement was made for EPFA in the 2013-2014 budgets (see testimony of W.

McArthur, Transcript Vol. 63 at pp. 96-97, 156, 172-173).

[315] The effects of the population thresholds in Directive 20-1, along with the other

assumptions built into Directive 20-1 and the EPFA, indicate that a “one-size fits all”

approach does not work for child and family services on reserve. The overwhelming

evidence in this case suggests that because AANDC does not fund FNCFS Agencies

based on need but, rather, based on assumptions of need and population levels, that

funding is inadequate to provide essential child and family services to many First Nations.

Moreover, the internal AANDC documents outlined above, namely the Way Forward

presentation and the Renewal of the First Nations Child and Family Services Program

presentation, indicate that, despite any additional funds provided or reallocated to FNCFS

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Agencies, there is still quite a significant difference in funding levels to bring the FNCFS

Program into comparability with the provinces. This point is addressed in more detail in the

following section.

c. Comparator evidence

[316] AANDC contends that comparison is an essential part of the analysis under human

rights legislation. It submits that no evidence was advanced by the Complainants

regarding how the provincial or territorial funding models work or what their respective

child welfare budgets are as compared to the federal government. In this regard, AANDC

argues that the Tribunal should draw a negative inference from the fact that the

Complainants did not call provincial and territorial witnesses to testify.

[317] According to AANDC, the Complainants’ case lacks substantive evidence about the

level of provincial funding compared to federal funding, including addressing the nature

and extent of any research thereon. Moreover, no provincial or territorial witnesses were

called to support the allegation that there is a difference in child welfare funding or service

levels on or off reserve. Given that comparison between federal and provincial funding

was at the heart of their case, AANDC submits the Complainants had to demonstrate how

much funding is provided by the federal government and each provincial/territorial

government for child welfare services. Only if the amount of funding for both was reliably

established, could the Tribunal determine if there is a difference and whether that

difference amounts to adverse differentiation or a denial of services. According to AANDC,

perceived differences in services on and off reserve are not sufficient to substantiate the

Complainants’ claims.

[318] In any event, AANDC argues that comparing the federal and provincial/territorial

funding systems is not a valid comparison under the CHRA.

[319] AANDC’s argument regarding the need for comparative evidence, and that

comparing the federal and provincial/territorial funding systems is not valid under the

CHRA, has already been rejected by the Federal Court, the Federal Court of Appeal and

this Tribunal. In setting aside the Tribunal’s decision on AANDC’s jurisdictional motion

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(2011 CHRT 4), which advanced this same argument, the Federal Court in Caring Society

FC found at paragraph 251:

the Tribunal erred in concluding that the ordinary meaning of the term

“differentiate adversely” in subsection 5(b) requires a comparator group in

every case in order to establish discrimination in the provision of services.

This conclusion is unreasonable as it flies in the face of the scheme and

purpose of the Act, and leads to patently absurd results that could not have

been intended by Parliament.

[320] The Federal Court explained some of the patently absurd results of requiring a

comparator group in every case:

[256] On the Tribunal’s analysis, the employer who consciously decides to

pay his or her only employee less because she is a woman, or black, or

Muslim, would not have committed a discriminatory practice within the

meaning of subsection 7(b) of the Act because there is no other employee to

whom the disadvantaged employee could be compared.

[257] Similarly, the shopkeeper who forces his or her employee to work in

the back of the shop after discovering that the employee is gay would not

have committed a discriminatory practice if no one else was employed in the

store.

[…]

[259] In the examples cited above, individuals are clearly being treated in an

adverse differential manner in their employment because of their

membership in a protected group. However, according to the Tribunal’s

interpretation, no recourse would be available to these individuals under the

Act. Such an interpretation does not accord with the purpose of the

legislation and is unreasonable.

(Caring Society FC at paras. 256-257, 259)

[321] After examining the role of comparator groups in a discrimination analysis and the

Supreme Court’s decision in Withler v. Canada (Attorney General), 2011 SCC 12

(Withler), the Federal Court made the following statements with regard to the use of

comparator groups in analyzing alleged discrimination against Aboriginal peoples:

[332] Aboriginal people occupy a unique position within Canada’s

constitutional and legal structure.

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[…]

[337] By interpreting subsection 5(b) of the Canadian Human Rights Act so

as to require a mirror comparator group in every case in order to establish

adverse differential treatment in the provision of services, the Tribunal’s

decision means that, unlike other Canadians, First Nations people will be

limited in their ability to seek the protection of the Act if they believe that they

have been discriminated against in the provision of a government service on

the basis of their race or national or ethnic origin. This is not a reasonable

outcome.

[…]

[340] I also agree with the applicants that an interpretation of subsection 5(b)

that accepts the sui generis status of First Nations, and recognizes that

different approaches to assessing claims of discrimination may be

necessary depending on the social context of the claim, is one that is

consistent with and promotes Charter values.

(Caring Society FC at paras. 332, 337, 340)

[322] On appeal, the Federal Court of Appeal accepted the Federal Court’s reasoning

regarding the use of comparator groups in a discrimination analysis. In fact, it noted that

cases postdating the Federal Court’s decision confirmed the reduced role of comparator

groups in the analysis:

In Moore v. British Columbia (Education), 2012 SCC 61, the Supreme Court

reiterated that the existence of a comparator group does not determine or

define the presence of discrimination, but rather, at best, is just useful

evidence. It added that insistence on a mirror comparator group would return

us to formalism, rather than substantive equality, and “risks perpetuating the

very disadvantage and exclusion from mainstream society the [Human

Rights] Code is intended to remedy” (at paragraphs 30-31). The focus of the

inquiry is not on comparator groups but “whether there is discrimination,

period” (at paragraph 60).

In Quebec (Attorney General) v. A., 2013 SCC 5 at paragraph 346 (per

Abella J. for the majority), the Supreme Court has reaffirmed that “a mirror

comparator group analysis may fail to capture substantive equality, may

become a search for sameness, may shortcut the second stage of the

substantive equality analysis, and may be difficult to apply”: Withler, supra at

paragraph 60. The Supreme Court went so far as to cast doubt on the

authority of Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002]

4 S.C.R. 325, an earlier case in which an unduly influential or determinative

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role was given to the existence of a comparator group – similar to what the

Tribunal did here.

(Caring Society FCA at para. 18)

[323] The Panel agrees with the Federal Court and Federal Court of Appeal’s reasoning

on the role of comparator groups in a discrimination analysis. AANDC’s argument

regarding the need for comparative evidence in this case is inconsistent with the Caring

Society FC and Caring Society FCA decisions. Furthermore, there is no authority for its

proposition that interjurisdictional comparisons are not valid under the CHRA.

[324] While the Supreme Court has previously stated that equality is a comparative

concept, it has also recognized that “…every difference in treatment between individuals

under the law will not necessarily result in inequality and, as well, that identical treatment

may frequently produce serious inequality” (Andrews v. Law Society of British Columbia,

[1989] 1 SCR 143 at p. 164 [Andrews]). With regard to this last statement, the Supreme

Court in Withler, at paragraph 2, stated that equality is about substance, not formalism:

In our view, the central issue in this and others. 15(1) cases is whether the

impugned law violates the animating norm of s. 15(1), substantive equality:

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143. To

determine whether the law violates this norm, the matter must be considered

in the full context of the case, including the law’s real impact on the

claimants and members of the group to which they belong. The central s.

15(1) concern is substantive, not formal, equality. A formal equality analysis

based on mirror comparator groups can be detrimental to the analysis. Care

must be taken to avoid converting the inquiry into substantive equality into a

formalistic and arbitrary search for the “proper” comparator group. At the

end of the day there is only one question: Does the challenged law violate

the norm of substantive equality in s. 15(1) of the Charter?

[325] As noted by the Federal Court of Appeal in Caring Society FCA, the decisions in

Moore and Quebec (Attorney General) v. A., 2013 SCC 5 (A), echo the approach to

comparator groups enunciated in Withler. That is, while the use of comparative evidence

may be useful in analyzing a claim of discrimination, it is not determinative of the issue. In

fact, as the Supreme Court noted in Withler, at paragraph 59: “finding a mirror group may

be impossible, as the essence of an individual’s or group’s equality claim may be that, in

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light of their distinct needs and circumstances, no one is like them for the purposes of

comparison”.

[326] Rather, the full context of the case and all relevant evidence, including any

comparative evidence, must be considered (see Withler at para. 2). As the Federal Court

of Appeal noted in Canada (Canadian Human Rights Commission) v. Canada (Attorney

General), 2005 FCA 154 at paragraph 27 (Morris), the legal definition of a prima facie case

does not require a complainant to adduce any particular type of evidence to prove the

existence of a discriminatory practice under the CHRA. It is a question of mixed fact and

law whether the evidence adduced in any given case is sufficient to prove a discriminatory

practice. The Federal Court of Appeal in Morris, at paragraph 28, concluded that:

A flexible legal test of a prima facie case is better able than more precise

tests to advance the broad purpose underlying the Canadian Human Rights

Act, namely, the elimination in the federal legislative sphere of discrimination

from employment, and from the provision of goods, services, facilities, and

accommodation. Discrimination takes new and subtle forms.

[327] In this vein, the Panel notes the present Complaint was brought under both

subsections 5(a) and (b) of the CHRA. The interpretation of the wording of subsection 5(b),

“to differentiate adversely”, has largely been the basis for arguing the need for comparative

evidence. That is, “to differentiate” is to treat someone differently in comparison to others.

Aside from the French version of subsection 5(b) not having the same comparative

connotation, as it simply uses the term “défavoriser”, subsection 5(a) also does not use

wording implying a comparison. It speaks only of being denied a good or a service. As the

Federal Court noted in Caring Society FC, requiring comparator evidence under 5(b), but

not under 5(a), would create an internal incoherence between the subsections by

establishing different legal and evidentiary requirements in order to establish discrimination

under each provision (see Caring Society FC at paras. 276-279).

[328] Similarly, AANDC’s argument that there can be no cross-jurisdictional comparisons

or comparisons between different service providers is not supported by anything found in

the CHRA or in the jurisprudence regarding comparator evidence outlined in the preceding

paragraphs. In fact, section 50(3)(c) of the CHRA allows the Panel to receive and accept

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any evidence and information that is sees fit, as long as it is not privileged information [s.

50(4)] or the testimony of a conciliator appointed to settle the complaint [s. 50(5)].

Furthermore, reasonable comparability with provincial/territorial standards is part of

AANDC’s own objective in implementing the FNCFS Program and negotiating the other

provincial/territorial agreements. While AANDC argues “reasonable comparability” is an

administrative term and not a legal term requiring mirror services are provided on and off

reserve, that argument has no bearing on the Complainants’ ability to bring evidence

related thereto. AANDC undertook to ensure First Nations on reserve receive reasonably

comparable child and family services to those provided off reserve in similar

circumstances. It is unreasonable and unfounded to argue the Complainants should not be

able to bring evidence related thereto.

[329] While there is no obligation to bring forward comparative evidence to substantiate a

discrimination complaint, there was some comparative evidence brought forward in this

case demonstrating a difference between child and family services funding and service

levels provided on and off reserve. First, the FNCFS Agencies still under Directive 20-1

receive less funding than those who have transitioned to the EPFA. As indicated in the

2011 Status Report of the Auditor General of Canada, funding for operations and

prevention services increased between 50 and 100% in each of the provinces that

transitioned to EPFA (see at p. 25, s. 4.54). Furthermore, as indicated above, AANDC has

estimated the difference in annual funding to transfer the remaining jurisdictions to the

EPFA as $21 million for British Columbia; $2 million for the Yukon; $5 million for Ontario;

$2 million for New Brunswick; and, $2 million for Newfoundland and Labrador (see Way

Forward presentation at p. 15). As Ms. D’Amico stated at the hearing:

MEMBER LUSTIG: Okay. So is it fair to say then that while your best efforts

are underway and you are attempting to address on various front [the

shortcomings in the funding formulas], there isn‘t comparability yet; this is

something you are trying to attain?

MS. D‘AMICO: In six jurisdictions, I can tell you that there is comparability. In

the other jurisdictions, because we haven't moved to EPFA, the amounts

that they are receiving are more than 20-1, but I could not tell you definitively

that it is comparable with the province in terms of the funding ratios because

20-1, even with the added dollars, we have run most of the formulas with the

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remaining jurisdictions and they would receive more under EPFA based on

all of those ratios.

(Transcript Vol. 51 at pp. 179-180)

[330] Second, AANDC has identified that increases in funding are even necessary in

EPFA jurisdictions to ensure reasonable comparability with the provinces. Again, in the

Way Forward presentation, it states the “EPFA funding envelope may not be addressing

provincial cost drivers or funding pressures related to the operational efficiencies of

Agencies” (at p. 15). To address this, the presentation presents the option of adjusting the

EPFA costing model with increased investments to address cost drivers: “EPFA Plus”. To

implement this increased investment in the jurisdictions that do not function under the

EPFA, the Way Forward presentation estimates the cost to be $65.03 million. To top-up

the existing EPFA jurisdictions, EPFA Plus is estimated to cost $43.10 million. According

to the Way Forward presentation, EPFA Plus “[e]nsures funding remains reasonably

comparable with provinces and territories…” (at p. 16). While AANDC witnesses testified

that the amounts in the Way Forward presentation are rough estimates that err on the size

of magnitude, the Panel still finds they are indicative of the type of investments required to

provide more meaningful services to First Nations children and families on reserve and in

the Yukon.

[331] Moreover, these amounts are similar to those recommended in Wen:De Report

Three (see at p. 33). Wen:De Report Three also cautioned against implementing its

recommendations in a piece meal fashion as doing so would undermine the overall

efficacy of its proposed changes (see at p. 15). However, by not addressing all the

shortcomings of Directive 20-1 in implementing the EPFA, the overall efficacy of the EPFA

model is now undermined as indicated in the Way Forward presentation.

[332] A third comparison also arises from the Way Forward presentation. To resolve

comparability, the presentation recommends AANDC transfer child welfare services on

reserve to the provinces/territory. It recognizes that the provinces and territories have

expertise in child welfare and that there would be better oversight and compliance of child

and family services on reserve if they are given the full range of responsibilities, including

the responsibility for funding. However, the presentation notes that this option has the

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“[p]otential for dramatic increases in costs” for AANDC (Way Forward presentation at p.

17).

[333] In this same vein, another useful comparison in this case is the difference between

the delivery of child and family services through the FNCFS Program against the delivery

of those services through the Alberta Reform Agreement, BC MOU and BC Service

Agreement. AANDC argues these agreements are not evidence of how the province funds

the off reserve population or evidence that AANDC underfunds FNCFS Agencies.

However, these arguments do not address the fact that FNCFS Agencies are funded in a

different manner than the reimbursements provided by AANDC to the provinces. The

funding provided to Alberta and British Columbia under these agreements is not based on

population levels or assumptions about children in care and families in need. Rather, those

provinces are reimbursed for the actual costs or an agreed upon share of the costs for

providing child and family services. They receive adjustments for inflation and increases in

the costs of services, whereas FNCFS Agencies do not. Most importantly, because of the

payment of actuals and adjustments thereof annually, there is a more direct connection

between the child and family services standards of those provinces and the delivery of

those services to the First Nation communities they serve.

[334] By comparison, neither Directive 20-1 nor the EPFA provide adjustments for the

cost of living or for changes in provincial legislation and standards. Both types of

adjustments were identified by Wen:De Report Two as major flaws in Directives 20-1 and,

despite these findings, the EPFA model incorporated these same flaws. As Wen:De

Report Two specified, not adjusting funding for increases in the cost of living leads to both

under-funding of services and to distortion in the services funded (see at p. 45).

Furthermore, by not providing adjustments for changing provincial legislation and

standards, the FNCFS Program still contains no mechanism to ensure child and family

services provided on reserve are reasonably comparable to those provided to children in

similar circumstances off reserve (see Wen:De Report Two at p. 50).

120

[335] AANDC’s argument about the Complainants’ lack of comparative evidence also

ignores the fact that the NPR, Wen:De reports, Auditor General and Standing Committee

reports have all identified a need for AANDC to do this analysis and recommended they do

so. Moreover, in response to the Auditor General and Standing Committee reports

recommending AANDC perform a comparative analysis of child welfare services provided

on and off reserve, AANDC indicated that it has not done so because of inherent

difficulties in doing so. Despite said difficulties, “reasonable comparability” remains

AANDC’s standard for the FNCFS Program.

[336] The difficulties in performing this comparative analysis were also identified in a

document entitled Comparability of Provincial and INAC Social Programs Funding,

authored by AANDC employees and to be included in a Ministerial Briefing Binder (see

Annex, ex. 44). The document explains that for a number of reasons, such as differences

in the way social programs are delivered in the provinces in terms of types of services, the

number of services and the allocation of funding, it is difficult to arrive at conclusive and

comparable numbers (see Comparability of Provincial and INAC Social Programs Funding

at p. 1). In addition, provincial data may not be directly comparable as it could include

costs such as overhead or program costs not funded through the FNCFS Program (see

Comparability of Provincial and INAC Social Programs Funding at p. 4). Where total

expenditures per child in care are compared, there is some indication that AANDC funds

child and family services at higher levels compared to some provinces. However, the

Comparability of Provincial and INAC Social Programs Funding document, at page 4,

notes that funding levels do not relate to the real needs of children and their families:

this analysis is not able to recognize that disadvantaged groups may have

higher levels of need for services (due to poverty, poor housing conditions,

high levels of substance abuse, and exposure to family violence) or that the

services or placement options they require may be at a substantially higher

cost for services.

[337] Ms. D’Amico also testified about the difficulty in comparing services provided by

FNCFS Agencies to those provided by the provinces:

121

MS CHAN: […] Can you tell, or is there a way for the Program to

know if they are comparable in terms of the services that are being provided

on-Reserve?

MS D'AMICO: I don't believe that we can.

[…]

Because we are talking about different types of communities, different

types of systems and different types of services that are being administered

by different service delivery agents. So what I mean by this is, one First

Nation community off-Reserve who looks exactly the same as an off-

Reserve community isn't actually going to get the same services as that

other community, they are going to get culturally specific services that that

Agency deems appropriate for the children and families that they are

serving.

(Transcript Vol. 51 at p. 183)

[338] Because of these difficulties, Ms. D’Amico indicated that AANDC’s funding is not

premised on comparability of service levels between on and off reserve child and family

services, but simply on maintaining comparable funding levels with the province:

MS D'AMICO: Because in the case of EPFA we have -- we are

currently funding at the same salaries and staffing ratios as the province,

and that is the only comparable variables that we could find. So it has

nothing to do with the service delivery, it has to do with the funding, and that

-- and so we have found comparable variables that the province how the

province funds is how we fund.

(Transcript Vol. 51 at p. 103)

[339] However, as indicated above, even salaries are fixed when the EPFA is

implemented and in Alberta, for example, they are still using 2006 salary rates in 2014.

Furthermore, as indicated in the Comparability of Provincial and INAC Social Programs

Funding document, an approach to comparability based on funding and not service levels

does not recognize the higher levels of need for services for First Nations or that the

services or placement options they require may be at a substantially higher cost.

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[340] This last point allows the Panel to make an effective comparison between the child

and family services offered on and off reserve based on the principle of the best interest of

the child.

iv. Best interest of the child and Jordan’s Principle

[341] There is a focus on service levels and the needs of children and families off

reserve, namely an emphasis on least disruptive/intrusive measures. On the other hand,

under the federal FNCFS Program, there is a focus on funding levels and the application

of funding formulas, where funds for prevention/least disruptive measures are fixed and

funds to bring a child into care are covered at cost.

[342] Provincial child welfare legislation and standards focus on prevention and least

disruptive measures (see for example Ontario’s Child and Family Services Act at s. 1;

Alberta’s Child, Youth and Family Enhancement Act at s. 2; The Child and Family Services

Act in Manitoba at Declaration of Principles and s. 2; The Child and Family Services Act in

Saskatchewan at ss. 3-5; Nova Scotia’s Children and Family Services Act at Preamble

and ss. 2, 13, 20; British Columbia’s Child, Family and Community Service Act at ss.2-4,

30; and, Quebec’s Loi sur la Protection de la Jeunesse at ss. 1-4). These statutes

recognize that removing a child from his or her family, home or community should only be

done when all other least disruptive measures have been exhausted and there is no other

alternative.

[343] This focus on least disruptive measures recognizes the significant effect of

separating a family. The Supreme Court, in Winnipeg Child and Family Services v. K.L.W.,

2000 SCC 48 at paragraph 78, outlined the effects of bringing a child into care:

The most disruptive form of intervention is a court order giving the agency

temporary or permanent guardianship of a child. Particularly in the case of a

permanent order, this may sever legal ties between parent and child forever.

To make such an order, a court must find that the child is in need of

protection within the meaning of the applicable statute. In addition, the court

must find that the “best interests of the child” dictate a temporary or

permanent transfer of guardianship. As Lamer C.J. observed in G. (J.),

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supra, at para. 76: “Few state actions can have a more profound effect

on the lives of both parent and child.”

(Emphasis added)

[344] As indicated above, the provinces’ legislation and standards dictate that all

alternatives measures should be explored before bringing a child into care, which is

consistent with sound social work practice as described earlier. However, by covering

maintenance expenses at cost and providing insufficient fixed budgets for prevention,

AANDC’s funding formulas provide an incentive to remove children from their homes as a

first resort rather than as a last resort. For some FNCFS Agencies, especially those under

Directive 20-1, their level of funding makes it difficult if not impossible to provide prevention

and least disruptive measures. Even under the EPFA, where separate funding is provided

for prevention, the formula does not provide adjustments for increasing costs over time for

such things as salaries, benefits, capital expenditures, cost of living, and travel. This

makes it difficult for FNCFS Agencies to attract and retain staff and, generally, to keep up

with provincial requirements. Where the assumptions built into the applicable funding

formulas in terms of children in care, families in need and population levels are not

reflective of the actual needs of the First Nation community, there is even less of a

possibility for FNCFS Agencies to keep pace with provincial operational requirements that

may include, along with the items just mentioned, costs for legal or band representation,

insurance premiums, and changes to provincial/territorial service standards.

[345] AANDC officials working in the FNCFS Program have indicated that they are not

experts in the field of child welfare and, instead, rely on provincial legislation and standards

to dictate the level of funding that should be provided on reserves. Yet, they apply a

formula to fund FNCFS Agencies that does not take into account the standards for least

disruptive measures set by provincial legislation. Tellingly, in funding child and family

services, the provinces do not apply a funding formula:

MS CHAN: In terms of funding, have you seen provincial funding

formulas to calculate child welfare payment that is made by the province?

MS D'AMICO: Not to date.

124

MS CHAN: What difficulties does this cause for the Program, if any,

in determining how you are going to fund?

MS D'AMICO: So this has been our primary challenge, to try and

figure out how to fund equitably or comparably because we have

consistently asked the province, give us a funding formula for an Agency or

for a regional office in your jurisdiction and show us what that is and we will

see if we can replicate it, then we would be assured that, you know,

infamous provincial comparability.

[…]

The provinces don't have that, they have a chart of accounts, they

fund based on a variety of different things. You know, an example would be

British Columbia, they have five different regional offices; those five different

regional offices have different salary grids, they have different operational

budgets that are not based on any particular formula.

So it has been incredibly challenging to find those comparable pieces

so that we can ensure comparability. It has just been -- it's literally apples

and oranges.

So, like I said, it's those variables […] that we have been able to find

with the province to be able to inject in our formula so that at least we could

have, first of all, a consistent formula across the country, but one that is

tailored to every single jurisdiction based on provincial comparability,

provincial variables.

So it's not absolute in terms of service. If a service is provided in one

community, it's not necessarily being provided in another community even

off-Reserve. It's very difficult and the services vary, there is so many

different things that child protection and other community partners provide in

the vast spectrum of the social safety net.

(Transcript Vol. 51 at pp. 184-186)

[346] A focus on prevention services and least disruptive measures in the provincial

statutes mentioned above is inextricably linked to the concept of the best interest of the

child: a legal principle of paramount importance in both Canadian and international law

(see Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General),

2004 SCC 4 at para. 9; and, Baker v. Canada (Minister of Citizenship and Immigration),

[1999] 2 SCR 817 at para. 75 [Baker]). As explained by Professor Nicholas Bala:

125

[L]eading Canadian precedents, federal and provincial statutes and

international treaties are all premised on the principle that decisions about

children should be based on an assessment of their best interests. This is a

central concept for those who are involved making decisions about children,

not only for judges and lawyers, but for also assessors and mediators.

(Bala, Nicholas, “The Best Interests of the Child in the Post‑Modernist Era:

A Central but Illusive and Limited Concept”, in Special Lectures of the Law

Society of Upper Canada 2000: Family Law (Toronto: LSUC, 1999) at p.

3.1)

[347] With regard to the FNCFS Program, there is discordance between on one hand, its

objectives of providing culturally relevant child and family services on reserve, that are

reasonably comparable to those provided off reserve, and that are in accordance with the

best interest of the child and keeping families together; and, on the other hand, the actual

application of the program through Directive 20-1 and the EPFA. Again, while

maintenance expenditures are covered at cost, prevention and least disruptive measures

funding is provided on a fixed cost basis and without consideration of the specific needs of

communities or the individual families and children residing therein.

[348] The discordance between the objectives and the actual implementation of the

program is also exemplified by the lack of funding in Ontario, for Band Representatives

under the 1965 Agreement. Not only does the Band Representative address the need for

culturally relevant services, but it also addresses the goal of keeping families and

communities together and is directly provided for in Ontario’s Child and Family Services

Act.

[349] The adverse impacts outlined throughout the preceding pages are a result of

AANDC’s control over the provision of child and family services on First Nations reserves

and in the Yukon by the application of the funding formulas under the FNCFS Program

and 1965 Agreement. Those formulas are structured in such a way that they promote

negative outcomes for First Nations children and families, namely the incentive to take

children into care. The result is many First Nations children and families are denied the

opportunity to remain together or be reunited in a timely manner.

126

[350] In this regard, and in addressing the difference between the allocation of funding by

AANDC for First Nations child and family services and that of the provinces, another

important consideration brought forward by the Complainants and in the evidence is the

application of Jordan’s Principle.

[351] Jordan’s Principle is a child-first principle and provides that where a government

service is available to all other children and a jurisdictional dispute arises between Canada

and a province/territory, or between departments in the same government regarding

services to a First Nations child, the government department of first contact pays for the

service and can seek reimbursement from the other government/department after the child

has received the service. It is meant to prevent First Nations children from being denied

essential public services or experiencing delays in receiving them.

[352] Jordan’s Principle is in recognition of Jordan River Anderson, a child who was born

to a family of the Norway House Cree Nation in 1999. Jordan had a serious medical

condition, and because of a lack of services on reserve, Jordan’s family surrendered him

to provincial care in order to get the medical treatment he needed. After spending the first

two years of his life in a hospital, he could have gone into care at a specialized foster

home close to his medical facilities in Winnipeg. However, for the next two years, AANDC,

Health Canada and the Province of Manitoba argued over who should pay for Jordan’s

foster home costs and Jordan remained in hospital. They were still arguing when Jordan

passed away, at the age of five, having spent his entire life in hospital.

[353] On October 31, 2007, Ms. Jean Crowder, the Member of Parliament for Nanaimo-

Cowichan, brought forward motion 296 in the House of Commons:

That, in the opinion of the House, the government should immediately adopt

a child first principle, based on Jordan's Principle, to resolve jurisdictional

disputes involving the care of First Nations children.

The motion was unanimously passed on December 12, 2007 (see Annex, ex. 45).

[354] In response, AANDC and Health Canada entered into the Memorandum of

Understanding on the Federal Response to Jordan’s Principle (see Annex, ex. 46 [2009

MOU on Jordan’s Principle]; see also testimony of C. Baggley, Transcript Vol. 57 at pp. 9-

127

13, 23, 40-41, 84-85). In the 2009 MOU on Jordan’s Principle, signed by an Assistant

Deputy Minister for each department, both AANDC and Health Canada acknowledge that

they have a role to play in Jordan’s Principle and a shared responsibility in working

together to develop and implement a federal response (see at p. 1). The purpose of the

memorandum is to act as a guide for the two departments in addressing/resolving funding

disputes as they arise between the federal and provincial governments, as well as

between the two departments, “…ensuring that services to children identified in a Jordan’s

Principle case are not interrupted as a result of disputes” (2009 MOU on Jordan’s Principle

at p. 1).

[355] The memorandum also serves as a guide for AANDC and Health Canada to

collaborate on the federal implementation of Jordan’s Principle. In this regard, the

memorandum indicates that Health Canada’s role in responding to Jordan’s Principle is by

virtue of the range of health-related services it provides to First Nations people, including:

nursing services; home and community care; community programs; and, medically

necessary non-insured health benefits. AANDC’s role in responding to Jordan’s Principle

is by virtue of the range of social programs it provides to First Nations people, including:

special education; assisted living; income assistance; and, the FNCFS Program (see 2009

MOU on Jordan’s Principle at pp. 1-2).

[356] Once a possible Jordan’s Principle case is identified, the 2009 MOU on Jordan’s

Principle provides for a review of existing federal authorities and program policies to

determine whether the expenditures are eligible under an existing program and can be

paid through existing departmental funds. If the dispute over funding arises between the

federal and provincial governments, Health Canada and AANDC are to work together to

engage and collaborate with the province and First Nations representatives to resolve the

dispute through a case management approach. To ensure there is no disruption/delay in

service, Health Canada was allocated $11 million to fund goods/services while the dispute

is being resolved (see 2009 MOU on Jordan’s Principle at p. 2). The funds were provided

annually, in $3 million increments, from 2009 to 2012. The funds were never accessed and

have since been discontinued (see testimony of C. Baggley, Transcript Vol. 57 at pp. 123-

125).

128

[357] According to the 2009 MOU on Jordan’s Principle, a governance structure has

been developed to support communication and information-sharing between the two

departments on matters related to Jordan’s Principle. This governance structure includes

“…supporting the resolution of departmental disputes where HC and AANDC are

uncertain or do not agree on which department/jurisdiction is responsible for funding the

goods/services based on their respective mandates, policies and authorities” (2009 MOU

on Jordan’s Principle at p. 2). The governance structure was also established to ensure

that funding disputes are addressed and coordinated in a timely manner: timing to address

case needs and make decisions being “…crucial to ensuring that funding disputes do not

disrupt services provided to a child (2009 MOU on Jordan’s Principle at p. 3).

[358] Health Canada and AANDC renewed their Memorandum of Understanding on the

Federal Response to Jordan’s Principle in January 2013 (see Annex, ex. 47 [2013 MOU

on Jordan’s Principle]). Again, signed by an Assistant Deputy Minister from each

department, the 2013 MOU on Jordan’s Principle acknowledges that Health Canada and

AANDC “…have a role to play in supporting improved integration and linkages between

federal and provincial health and social services” (2013 MOU on Jordan’s Principle at p.

1). The 2013 MOU on Jordan’s Principle now provides that during the resolution of a

Jordan’s Principle case, the federal department within whose mandate the implicated

programs or service falls will seek Assistant Deputy Minister approval to fund on an interim

basis to ensure continuity of service.

[359] Ms. Corinne Baggley, Senior Policy Manager for the Children and Family

Directorate of the Social Policy and Programs branch of AANDC indicated that the federal

response to Jordan’s Principle is focused on cases involving a jurisdictional dispute

between a provincial government and the federal government and on children with multiple

disabilities requiring services from multiple service providers. Furthermore, the service in

question must be a service that would be available to a child residing off reserve in the

same location (see Transcript Vol. 57 at pp. 9-13; see also Annex, ex. 48). While she

estimated that approximately half of the cases tracked under the Jordan’s Principle

initiative involved disputes between federal departments, she indicated that the policy was

built specifically around Jordan’s case (see Transcript Vol. 58 pp. 24-25, 40-41).

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[360] The Complainants claim AANDC and Health Canada’s formulation of Jordan's

Principle has narrowly restricted the principle. Whereas the motion was framed broadly in

terms of services needed by children, AANDC and Health Canada’s formulation applies

only to inter-governmental disputes and to children with multiple disabilities.

[361] On the other hand, AANDC is of the view that Jordan’s Principle is not a child

welfare concept and is not a part of the FNCFS Program. Therefore, it is beyond the scope

of this Complaint. AANDC also argues that the FNCFS Program does not aim to address

all social needs on reserve as there are a number of other social programs that meet

those needs and are available to First Nations on reserve. Moreover, the FNCFS Program

authorities do not allow them to pay for an expense that would normally be reimbursed by

another program (i.e. the stacking provisions in the 2012 National Social Programs Manual

at p. 10, section 11.0). In any event, AANDC argues there is no evidence to suggest that

its approach to Jordan’s Principle results in adverse impacts.

[362] In the Panel’s view, while not strictly a child welfare concept, Jordan’s Principle is

relevant and often intertwined with the provision of child and family services to First

Nations, including under the FNCFS Program. Wen:De Report Three specifically

recommended the implementation of Jordan Principle on the following basis, at page 16:

Jurisdictional disputes between federal government departments and

between federal government departments and provinces have a significant

and negative effect on the safety and well-being of Status Indian children

[…] the number of disputes that agencies experience each year is

significant. In Phase 2, where this issue was explored in more depth, the 12

FNCFSA in the sample experienced a total of 393 jurisdictional disputes in

the past year alone. Each one took about 50.25 person hours to resolve

resulting in a significant tax on the already limited human resources.

(Emphasis added)

[363] Wen:De Report Two indicated that 36% of jurisdictional disputes are between

federal government departments, 27% between provincial departments and only 14%

were between federal and provincial governments (see at p. 38). Some of these disputes

took up to 200 hours of staff time to sort out: “[t]he human resource costs related to

130

resolving jurisdictional disputes make them an extraordinary cost for agencies which is not

covered in the formula” (Wen:De Report Two at p. 26).

[364] Jordan’s Principle also relates to the lack of coordination of social and health

services on reserve. That is, like Jordan, due to a lack of social and health services on

reserve, children are placed in care in order for them to access the services they need. As

noted in the 2008 Report of the Auditor General of Canada, at pages 12 and 17:

4.20 Child welfare may be complicated by social problems or health issues.

We found that First Nations agencies cannot always rely on other social and

health services to help keep a family together or provide the necessary

services. Access to such services differs not only on and off reserves but

among First Nations as well. INAC has not determined what other social and

health services are available on reserves to support child welfare services.

On-reserve child welfare services cannot be comparable if they have to deal

with problems that, off reserves, would be addressed by other social and

health services.

[…]

4.40 First Nations children with a high degree of medical need are in an

ambiguous situation. Some children placed into care may not need

protection but may need extensive medical services that are not available on

reserves. By placing these children in care outside of their First Nations

communities, they can have access to the medical services they need. INAC

is working with Health Canada to collect more information about the extent

of such cases and their costs.

[365] The 2008 Report of the Auditor General of Canada, at page 16, also found that

coordination amongst AANDC programs, and between AANDC and Health Canada

programs, is poor:

4.38 As the protection and well-being of First Nations children may require

support from other programs, we expected that INAC would facilitate

coordination between the [FNCFS] Program and other relevant INAC

programs, and facilitate access to other federal programs as appropriate.

4.39 We found fundamental differences between the views of INAC and

Health Canada on responsibility for funding Non-Insured Health Benefits for

First Nations children who are placed in care. According to INAC, the

services available to these children before they are placed in care should

continue to be available. According to Health Canada, however, an on-

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reserve child in care should have access to all programs and services

available to any child in care in a province, and INAC should take full

financial responsibility for these costs in accordance with federal policy.

INAC says it does not have the authority to fund services that are covered

by Health Canada. These differences in views can have an impact on the

availability, timing, and level of services to First Nations children. For

example, it took nine months for a First Nations agency to receive

confirmation that an $11,000 piece of equipment for a child in care would be

paid for by INAC.

(Emphasis added)

[366] For example, a four-year-old First Nations child suffered cardiac arrest and an

anoxic brain injury during a routine dental examination. She became totally dependent for

all activities of daily living. Before being discharged from hospital, she required significant

medical equipment, including a specialized stroller, bed and mattress, a portable lift and a

ceiling track system. A request was made to Health Canada’s Non-Insured Health Benefits

Program requesting approval for the medical equipment. However, the equipment was not

eligible under the program and required approval as a special exemption.

[367] An intake form disclosed during the hearing and prepared by provincial authorities

in Manitoba, but which accords with AANDC’s records of the incident, documents how the

case proceeded thereafter (see Annex, ex. 49 [Intake Form]; see also Annex, ex. 50; and,

testimony of C. Baggley, Transcript Vol. 58 at pp. 58-60). Initial contact was made with

AANDC on November 29, 2012. A conference call was held on December 4, 2012, where

Health Canada accepted to pay for the portable lift, but would “absolutely not” pay for the

specialized bed and mattress. On December 19, 2012, the child was discharged from

hospital. Over a month later, the specialized bed and mattress were provided, but only as

a result of an anonymous donation. In the concluding remarks of the Intake Form, where it

asks “[p]lease provide details on the barriers experienced to access the required services”

it states at page 8:

Health Canada does not have the authority to fund hospital or specialized

beds and mattresses. NIHB said “absolutely not”.

AANDC ineligible through In Home Care (only provide for non medical

supports) and family not in receipt of Income Assistance Program to access

special needs funding.

132

Southern Regional Health Authority (provincial) was approached but

indicated they are unable to fund the hospital bed.

Sandy Bay First Nation does not have the funding or has limited funding and

is unable to purchase bed.

Jurisdictions lacking funding authority to cover certain items which result in

gaps and disparities.

[368] The lack of integration between federal government programs on reserve, in more

areas than only with children with multiple disabilities, is highlighted in an AANDC

document entitled INAC and Health Canada First Nation Programs: Gaps in Service

Delivery to First Nation Children and Families in BC Region (see Annex, ex. 51 [Gaps in

Service Delivery to First Nation Children and Families in BC Region]). As indicated in the

accompanying email message attaching the document, under the subject line “Jordan’s

Principle: Parallel work with HC”, the document represents the views of AANDC’s British

Columbia regional office, including its Director of Intergovernmental Affairs, and is

informed by other experienced officials within the regional office.

[369] The Gaps in Service Delivery to First Nation Children and Families in BC Region

document indicates at page 1:

The work of the two departments on Jordan’s Principle has highlighted what

all of us knew from years of experience: that there are differences of opinion,

authorities and resources between the two departments that appear to

cause gaps in service to children and families resident on reserve. The main

programs at issue include INAC’s Income Assistance program and the Child

and Family Services program; for Health Canada, it is Non-Insured Health

Benefits program.

[370] The document goes on to identify gaps based on the first-hand experience of

AANDC officials and FNCFS Agencies. For example, once a child is in care, the FNCFS

Program cannot recover costs for Non-Insured Health Benefits from Health Canada. In

that situation, Health Canada deems that there is another source of coverage (the FNCFS

Program); however, AANDC does not have authority to pay for medical-related

expenditures. Generally, there is confusion in how to access non-insured health benefits

(i.e. where to get the forms; where to send the forms and who to call for questions given

133

the official website does not give contact information) (see Gaps in Service Delivery to

First Nation Children and Families in BC Region at pp. 1-2).

[371] Dental services are also identified as an area of contention for FNCFS Agencies

and First Nations individuals. Even in emergency situations, basic dental care is denied by

the Non-Insured Health Benefits program if pre-approval is not obtained. If pressed, Health

Canada advises clients to appeal the decision which can create additional delays. When a

child in care is involved however, the FNCFS Agency has no choice but to pay for the

work (see Gaps in Service Delivery to First Nation Children and Families in BC Region at

p. 2).

[372] Another medical related expenditure identified as a concern is mental health

services. Health Canada’s funding for mental health services is for short term mental

health crises, whereas children in care often require ongoing mental health needs and

those services are not always available on reserve. Therefore, children in care are not

accessing mental health services due to service delays, limited funding and time limits on

the service. To exacerbate the situation for some children, if they cannot get necessary

mental health services, they are unable to access school-based programs for children with

special needs that require an assessment/diagnosis from a psychologist (see Gaps in

Service Delivery to First Nation Children and Families in BC Region at pp. 2-3).

[373] In some cases, the FNCFS Program is paying for eligible Non-Insured Health

Benefits expenditures even though they are not eligible expenses under the FNCFS

Program (see Gaps in Service Delivery to First Nation Children and Families in BC Region

at pp. 2-3). This is problematic considering AANDC has to reallocate funds from some of

its other programs - which address underlying risk factors for First Nations children - in

order to pay for maintenance costs. Again, as the 2008 Report of the Auditor General of

Canada pointed out at page 25:

4.72 Because the program’s expenditures are growing faster than the

Department’s overall budget, INAC has had to reallocate funding from other

programs. In a 2006 study, the Department acknowledged that over the past

decade, budget reallocations—from programs such as community

infrastructure and housing to other programs such as child welfare—have

134

meant that spending on housing has not kept pace with growth in population

and community infrastructure has deteriorated at a faster rate.

4.73 In our view, the budgeting approach INAC currently uses for this type of

program is not sustainable. Program budgeting needs to meet government

policy and allow all parties to fulfill their obligations under the program and

provincial legislation, while minimizing the impact on other important

departmental programs. The Department has taken steps in Alberta to deal

with these issues and is committed to doing the same in other provinces by

2012.

[374] As mentioned above, AANDC’s own evaluations of the FNCFS Program have also

identified this issue. The 2007 Evaluation of the FNCFS Program identified the FNCFS

Program as one of five AANDC programs that have the potential to improve the well-being

of children, families and communities. The other four are the Family Violence Prevention

Program, the Assisted Living Program, the National Child Benefit Reinvestment Program

and the Income Assistance Program. According to the evaluation, “[i]t is possible that, with

better coordination, these programs could be used more strategically to support families

and help them address the issues most often associated with child maltreatment” (2007

Evaluation of the FNCFS Program at p. 38). In addition, the evaluation identifies other

federal programs for First Nations who live on reserve offered by Human Resources and

Social Development Canada, Justice Canada and Public Safety and Emergency

Preparedness Canada, along with Health Canada, that also directly contribute to healthy

families and communities (see 2007 Evaluation of the FNCFS Program at pp. 39-45). On

this basis, the 2007 Evaluation of the FNCFS Program, at pages 47-48, proposes three

approaches to FNCFS Program improvement:

Approach A: Resolve weaknesses in the current FNCFS funding formula,

Program Directive 20-1, because in its current form, it discourages agencies

from a differential response approach and encourages out-of-home child

placements.

Approach B: Besides resolving weaknesses in Program Directive 20-1,

encourage First Nations communities to develop comprehensive community

plans for involving other INAC social programs in child maltreatment

prevention. The five INAC programs (the FNCFS Program, the Assisted

Living Program, the National Child Benefit Reinvestment Program, the

Family Violence Prevention Program, and the Income Assistance Program)

all target the same First Nations communities, and they all have a role to

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play in improving outcomes for children and families, so their efforts should

be coordinated and a performance indicator for all of them under INAC’s

new performance framework for social programs should be the rate of child

maltreatment in on-reserve First Nation communities.

Approach C: In addition to approaches A and B, improve coordination of

INAC social programs with those of other federal departments that are

directed to First Nations on reserve, for example health and early childhood

development programs. With greater coordination and a stronger focus on

the needs of individual communities, these programs could make a greater

contribution to child maltreatment prevention, and could be part of a broader

healthy community initiative.

[375] Similarly, the 2010 AANDC Evaluation of the Implementation of the EPFA in

Alberta found several jurisdictional issues as challenging the effectiveness of service

delivery, notably the availability and access to supportive services for prevention. In 2012,

the AANDC Evaluation of the Implementation of the EPFA in Saskatchewan and Nova

Scotia found that “[t]here is a need to better coordinate federal programming that affects

children and parents requiring child and family services” (at p. 49). The AANDC Evaluation

of the Implementation of the EPFA in Saskatchewan and Nova Scotia, at page 49, goes

on to state:

It is clear that the FNCFS Program does not and cannot work in isolation

from other programming. Too many factors affect the overall need for child

and family services programming, and it would be unrealistic to assume that

agencies can fully deliver services related to all of them. AANDC could

improve its efficiency by having a better understanding of other AANDC or

federal programming that affect children and parents requiring child and

family services and facilitating the coordination of these programs. Economic

development, health promotion, education and cultural integrity are key

areas where an integration of programming and services has been noted as

potentially addressing community well-being in a way that is both effective

and necessary for positive long-term outcomes, and ultimately a sustained

reduction in the number of children coming into care.

[376] Jordan’s Principle was also considered by the Federal Court in Pictou Landing

Band Council v. Canada (Attorney General), 2013 FC 342. The Pictou Landing Band

Council (the PLBC) applied for judicial review of an AANDC decision not to reimburse

them for in-home health care to one of its members. The PLBC indicated that Jordan’s

Principle was at issue. However, after case conferencing with the provincial government

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and officials from the PLBC, AANDC and Health Canada determined there was no

jurisdictional dispute in the matter as both levels of government agreed that the funding

requested was above what would be provided to a child living off reserve.

[377] The Federal Court found AANDC’s interpretation of Jordan’s Principle to be narrow

and the finding that it was not engaged to be unreasonable:

[96] In this case, there is a legislatively mandated provincial assistance

policy regarding provision of home care services for exceptional cases

concerning persons with multiple handicaps which is not available on

reserve.

[97] The Nova Scotia Court held an off reserve person with multiple

handicaps is entitled to receive home care services according to his needs.

His needs were exceptional and the [Social Assistance Act] and its

Regulations provide for exceptional cases. Yet a severely handicapped

teenager on a First Nation reserve is not eligible, under express provincial

policy, to be considered despite being in similar dire straits. This, in my view,

engages consideration under Jordan’s Principle which exists precisely to

address situations such as Jeremy’s.

[378] In determining that AANDC and Health Canada did not properly assess the PLBC

request for funding to meet its member’s needs, the Federal Court concluded that:

[111] I am satisfied that the federal government took on the obligation

espoused in Jordan’s Principle. As result, I come to much the same

conclusions as the Court in Boudreau. The federal government contribution

agreements required the PLBC to deliver programs and services in

accordance with the same standards of provincial legislation and policy.

The [Social Assistance Act] and Regulations require the providing provincial

department to provide assistance, home services, in accordance with the

needs of the person who requires those services. PLBC did. Jeremy does.

As a consequence, I conclude AANDC and Health Canada must provide

reimbursement to the PLBC.

[…]

[116] Jordan’s Principle is not an open ended principle. It requires

complimentary social or health services be legally available to persons off

reserve. It also requires assessment of the services and costs that meet the

needs of the on reserve First Nation child.

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[379] Jordan’s Principle is designed to address issues of jurisdiction which can result in

delay, disruption and/or denial of a good or service for First Nations children on reserve.

The 2009 and 2013 Memorandums of Understanding have delays inherently built into

them by including a review of policy and programs, case conferencing and approvals from

the Assistant Deputy Minister, before interim funding is even provided. It should be noted

that the case conferencing approach was what was used in Jordan’s case, sadly, without

success (see testimony of Dr. Cindy Blackstock, Transcript Vol. 48 at p. 104).

[380] It also unclear why AANDC`s position focuses mainly on inter-governmental

disputes in situations where a child has multiple disabilities requiring services from multiple

service providers. The evidence above indicates that a large number of jurisdictional

disputes occur between federal departments, such as AANDC, Health Canada and others.

Tellingly, the $11 million Health Canada fund to address Jordan’s Principle cases was

never accessed. According to Ms. Baggley, the reasons for this were that the cases

coming forward did not meet the criteria for the application of Jordan’s Principle; or, were

resolved before having to access the fund (see Transcript Vol. 57 at pp. 123-125).

[381] In the Panel’s view, it is Health Canada’s and AANDC’s narrow interpretation of

Jordan’s Principle that results in there being no cases meeting the criteria for Jordan’s

Principle. This interpretation does not cover the extent to which jurisdictional gaps may

occur in the provision of many federal services that support the health, safety and well-

being of First Nations children and families. Such an approach defeats the purpose of

Jordan’s Principle and results in service gaps, delays and denials for First Nations children

on reserve. Coordination amongst all federal departments and programs, especially

AANDC and Health Canada programs, would help avoid these gaps in services to First

Nations children in need.

[382] More importantly, Jordan’s Principle is meant to apply to all First Nations children.

There are many other First Nations children without multiple disabilities who require

services, including child and family services. Having to put a child in care in order to

access those services, when those services are available to all other Canadians is one of

the main reasons this Complaint was made.

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v. Summary of findings

[383] The FNCFS Program, corresponding funding formulas and other related

provincial/territorial agreements intend to provide funding to ensure the safety and well-

being of First Nations children on reserve by supporting culturally appropriate child and

family services that are meant to be in accordance with provincial/territorial legislation and

standards and be provided in a reasonably comparable manner to those provided off-

reserve in similar circumstances. However, the evidence above indicates that AANDC is

far from meeting these intended goals and, in fact, that First Nations are adversely

impacted and, in some cases, denied adequate child welfare services by the application of

the FNCFS Program and other funding methods.

[384] Under the FNCFS Program, Directive 20-1 has a number of shortcomings and

creates incentives to remove children from their homes and communities. Mainly, Directive

20-1 makes assumptions based on population thresholds and children in care to fund the

operations budgets of FNCFS Agencies. These assumptions ignore the real child welfare

situation in many First Nations’ communities on reserve. Whereas operations budgets are

fixed, maintenance budgets for taking children into care are reimbursable at cost. If an

FNCFS Agency does not have the funds to provide services through its operations budget,

often times the only way to provide the necessary child and family services is to bring the

child into care. For small and remote agencies, the population thresholds of Directive 20-1

significantly reduce their operations budgets, affecting their ability to provide effective

programming, respond to emergencies and, for some, put them in jeopardy of closing.

[385] Directive 20-1 has not been significantly updated since the mid-1990’s resulting in

underfunding for FNCFS agencies and inequities for First Nations children and families on

reserves and in the Yukon. In addition, Directive 20-1 is not in line with current provincial

child welfare legislation and standards promoting prevention and least disruptive

measures for children and families. As a result, many First Nations children and their

families are denied an equitable opportunity to remain with their families or to be reunited

in a timely manner. In 2008, at the time of the Complaint, the vast majority of FNCFS

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Agencies across Canada functioned under Directive 20-1. At the conclusion of the hearing

in 2014, Directive 20-1 was still applicable in three provinces and in the Yukon Territory.

[386] AANDC incorporated some of the same shortcomings of Directive 20-1 into the

EPFA, such as the assumptions about children in care and population levels, along with

the fixed streams of funding for operations and prevention. Despite being aware of these

shortcomings in Directive 20-1 based on numerous reports, AANDC has not followed the

recommendations in those reports and has perpetuated the main shortcoming of the

FNCFS Program: the incentive to take children into care - to remove them from their

families.

[387] Furthermore, like Directive 20-1, the EPFA has not been consistently updated in an

effort to keep it current with the child welfare legislation and practices of the applicable

provinces. Once EPFA is implemented, no adjustments to funding for inflation/cost of living

or for changing service standards are applied to help address increased costs over time

and to ensure that prevention-based investments more closely match the full continuum of

child welfare services provided off reserve. In contrast, when AANDC funds the provinces

directly, things such as inflation and other general costs increases are reimbursed,

providing a closer link to the service standards of the applicable province/territory.

[388] In terms of ensuring reasonably comparable child and family services on reserve to

the services provided off reserve, the FNCFS Program has a glaring flaw. While FNCFS

Agencies are required to comply with provincial/territorial legislation and standards, the

FNCFS Program funding authorities are not based on provincial/territorial legislation or

service standards. Instead, they are based on funding levels and formulas that can be

inconsistent with the applicable legislation and standards. They also fail to consider the

actual service needs of First Nations children and families, which are often higher than

those off reserve. Moreover, the way in which the funding formulas and the program

authorities function prevents an effective comparison with the provincial systems. The

provinces/territory often do not use funding formulas and the way they manage cost

variables is often very different. Instead of modifying its system to effectively adapt it to the

provincial/territorial systems in order to achieve reasonable comparability; AANDC

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maintains its funding formulas and incorporates the few variables it has managed to obtain

from the provinces/territory, such as salaries, into those formulas.

[389] Given the current funding structure for the FNCFS Program is not adapted to

provincial/territorial legislation and standards, it often creates funding deficiencies for such

items as salaries and benefits, training, cost of living, legal costs, insurance premiums,

travel, remoteness, multiple offices, capital infrastructure, culturally appropriate programs

and services, band representatives, and least disruptive measures. It is difficult, if not

impossible, for many FNCFS Agencies to comply with provincial/territorial child and family

services legislation and standards without appropriate funding for these items; or, in the

case of many small and remote agencies, to even provide child and family services.

Effectively, the FNCFS funding formulas provide insufficient funding to many FNCFS

Agencies to address the needs of their clientele. AANDC’s funding methodology controls

their ability to improve outcomes for children and families and to ensure reasonably

comparable child and family services on and off reserve. Despite various reports and

evaluations of the FNCFS Program identifying AANDC’s “reasonable comparability”

standard as being inadequately defined and measured, it still remains an unresolved issue

for the program.

[390] Notwithstanding budget surpluses for some agencies, additional funding or

reallocations from other programs, the evidence still indicates funding is insufficient. The

Panel finds AANDC’s argument suggesting otherwise is unreasonable given the

preponderance of evidence outlined above. In addition, the reallocation of funds from other

AANDC programs, such as housing and infrastructure, to meet the maintenance costs of

the FNCFS Program has been described by the Auditor General of Canada as being

unsustainable and as also negatively impacting other important social programs for First

Nations on reserve. Again, recommendations by the Auditor General and Standing

Committee on Public Accounts on this point have largely gone unanswered by AANDC.

[391] Furthermore, in areas where the FNCFS Program is complemented by other

federal programs aimed at addressing the needs of children and families on reserve, there

is also a lack of coordination between the different programs. The evidence indicates that

federal government departments often work in silos. This practice results in service gaps,

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delays or denials and, overall, adverse impacts on First Nations children and families on

reserves. Jordan’s Principle was meant to address this issue; however, its narrow

interpretation by AANDC and Health Canada ignores a large number of disputes that can

arise and need to be addressed under this Principle.

[392] While seemingly an improvement on Directive 20-1 and more advantageous than

the EPFA, the application of the 1965 Agreement in Ontario also results in denials of

services and adverse effects for First Nations children and families. For instance, given the

agreement has not been updated for quite some time, it does not account for changes

made over the years to provincial legislation for such things as mental health and other

prevention services. This is further compounded by a lack of coordination amongst federal

programs in dealing with health and social services that affect children and families in

need, despite those types of programs being synchronized under Ontario’s Child and

Family Services Act. The lack of surrounding services to support the delivery of child and

family services on-reserve, especially in remote and isolated communities, exacerbates

the gap further. There is also discordance between Ontario’s legislation and standards for

providing culturally appropriate services to First Nations children and families through the

appointment of a Band Representative and AANDC’s lack of funding thereof. Tellingly,

AANDC’s position is that it is not required to cost-share services that are not included in

the 1965 Agreement.

[393] Overall, AANDC’s method of providing funding to ensure the safety and well-being

of First Nations children on reserve and in the Yukon, by supporting the delivery of

culturally appropriate child and family services that are in accordance with

provincial/territorial legislation and standards and provided in a reasonably comparable

manner to those provided off reserve in similar circumstances, falls far short of its

objective. In fact, the evidence demonstrates adverse effects for many First Nations

children and families living on reserve and in the Yukon, including a denial of adequate

child and family services, by the application of AANDC’s FNCFS Program, funding

formulas and other related provincial/territorial agreements. These findings are consistent

with those of the NPR, Wen:De reports, Auditor General of Canada reports and Standing

Committee on Public Accounts reports. Again, the Panel accepts the findings in those

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reports and has relied on them to make its own findings. Those findings are also

corroborated by the other testimonial and documentary evidence outlined above, including

the internal documents emanating from AANDC.

[394] As will be seen in the next section, the adverse effects generated by the FNCFS

Program, corresponding funding formulas and other related provincial/territorial

agreements perpetuate disadvantages historically suffered by First Nations people.

C. Race and/or national or ethnic origin is a factor in the adverse impacts or

denials

[395] As mentioned above, there is no dispute in this case that First Nations possess the

characteristics of race and/or national or ethnic origin. Discrimination claims regarding

Aboriginal peoples have been founded on both grounds (see for example The Queen v.

Drybones, [1970] SCR 282; Bear v. Canada (Attorney General), 2003 FCA 40; Bignell-

Malcolm v. Ebb and Flow Indian Band, 2008 CHRT 3; and Commission des droits de la

personne et des droits de la jeunesse c. Blais, 2007 QCTDP 11).

[396] The provision of child and family services under the FNCFS Program and the other

provincial agreements are specifically aimed at First Nations living on reserve. Under the

Yukon Agreement, the services are aimed at all First Nations living in the territory. That is,

the determination of the public to which the services are offered is based uniquely on the

race and/or ethnic origin of the service recipients. Pursuant to the application of the

FNCFS Program, corresponding funding formulas and the other provincial/territorial

agreements, First Nations people living on reserve and in the Yukon are prima facie

adversely differentiated and/or denied services because of their race and/or national or

ethnic origin in the provision of child and family services.

[397] AANDC argues there is no evidence that any changes to the FNCFS Program and

corresponding funding formulas or the other related provincial/territorial agreements would

lead to better outcomes for First Nations children and families. Therefore, it argues the

Complainants have failed to establish a prima facie case of discrimination. In any event,

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the question of whether federal funding is sufficient to meet a perceived need is beyond

the scope of an investigation into discrimination under section 5 of the CHRA.

[398] The prima facie discrimination analysis is not concerned with proposed outcomes. It

is concerned with adverse impacts and whether a prohibited ground is a factor in any

adverse impacts. Proposed outcomes only come into play if the complaint is substantiated

and an order from the Tribunal is required to rectify the discrimination under section 53(2)

of the CHRA. The Panel also disagrees that the question of whether funding is sufficient to

meet a perceived need is beyond the scope of an investigation into discrimination under

the CHRA. That question and evidence related thereto informs the ultimate determination

to be made in this case: whether First Nations children and families residing on-reserve

have an opportunity equal with other individuals in accessing child and family services.

That is, it addresses the issue of substantive equality.

i. Substantive equality

[399] The purpose of the CHRA is to give effect to the principle of equality. That “all

individuals should have an opportunity equal with other individuals to make for

themselves the lives that they are able and wish to have and to have their needs

accommodated, consistent with their duties and obligations as members of society”

(CHRA at s. 2, emphasis added). The equality jurisprudence under section 15 of the

Charter informs the content of the CHRA’s equality statement (see Caring Society FCA at

para. 19). In this regard, the Supreme Court has consistently held that equality is not

necessarily about treating everyone the same. As mentioned above, “identical treatment

may frequently produce serious inequality” (Andrews at p. 164).

[400] As articulated in Vriend v. Alberta, [1998] 1 SCR 493 at para. 69, “[i]t is easy to say

that everyone who is just like “us” is entitled to equality […] it is more difficult to say that

those who are “different” from us in some way should have the same equality rights that

we enjoy”. In other words, true equality and the accommodation of differences, what is

termed ‘substantive equality’, will frequently require the making of distinctions (see

Andrews at pp. 168-169). That is, in some cases “discrimination can accrue from a failure

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to take positive steps to ensure that disadvantaged groups benefit equally from services

offered to the general public” (see Eldridge at para. 78).

[401] In Eldridge, the issue was whether the failure to provide sign language interpreters

for hearing impaired persons as part of a publicly funded scheme for the provision of

medical care was in violation of section 15 of the Charter. The Supreme Court held that

discrimination stemmed from the actions of subordinate authorities, such as hospitals, who

acted as agents of the government in providing the medical services set out in legislation.

However, the Legislature, in defining its objective as guaranteeing access to a range of

medical services, could not evade its obligations under section 15 of the Charter to provide

those services without discrimination by appointing hospitals to carry out that objective.

The medical care system applied equally to the entire population of the province, but the

lack of interpreters prevented hearing impaired persons from benefitting from the system

to the same extent as hearing persons. The legislation was discriminatory because it had

the effect of denying someone the equal protection or benefit of the law.

[402] In determining whether there has been discrimination in a substantive sense, the

analysis must also be undertaken in a purposive manner “…taking into account the full

social, political and legal context of the claim” (see Law v. Canada (Minister of

Employment and Immigration), [1999] 1 SCR 497 at para. 30). For Aboriginal peoples in

Canada, this context includes a legacy of stereotyping and prejudice through colonialism,

displacement and residential schools (see R. v. Turpin, [1989] 1 SCR 1296 at p. 1332;

Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 at para.

66; Lovelace v. Ontario, [2000] 1 SCR 950 at para. 69; R. v. Kapp, [2008] 2 S.C.R. 483 at

para. 59; and, R. v. Ipeelee, [2012] 1 S.C.R. 433 at para. 60).

[403] In providing the benefit of the FNCFS Program and the other related

provincial/territorial agreements, AANDC is obliged to ensure that its involvement in the

provision of child and family services does not perpetuate the historical disadvantages

endured by Aboriginal peoples. If AANDC’s conduct widens the gap between First Nations

and the rest of Canadian society rather than narrowing it, then it is discriminatory (see A at

para. 332; and, Eldridge at para. 73).

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[404] The evidence in this case not only indicates various adverse effects on First

Nations children and families by the application of AANDC’s FNCFS Program,

corresponding funding formulas and other related provincial/territorial agreements, but also

that these adverse effects perpetuate historical disadvantages suffered by Aboriginal

peoples, mainly as a result of the Residential Schools system.

ii. Impact of the Residential Schools system

[405] Please note that the information below contains graphic facts about Residential

Schools. If this information causes distress, especially for survivors and their families, a

24-hour Indian Residential Schools Crisis Line has been set up to provide support,

including emotional and crisis referral services:

1-866-925-4419

a. History of Residential Schools

[406] Dr. John Milloy, a historian and author of A National Crime, The Canadian

Government and the Residential School System, 1879 to 1986 (Winnipeg: University of

Manitoba Press, 2006) [A National Crime]), was qualified as an expert on the history of

Residential Schools before the Tribunal. His evidence was uncontroverted and supported

by official archives and other documents referenced in his book. As such, the Panel

accepts Dr. Milloy’s evidence as fact.

[407] During the Residential Schools era, Aboriginal children were removed from their

homes, often forcibly, and brought to residential schools to be “civilized”. Living conditions

in many cases were appalling, giving place to disease, hunger, stress, and despair.

Children were often cold, overworked, shamed and could not speak their native language

for fear of severe punishment, including some students who had needles inserted into their

tongues. Many children were verbally, sexually and/or physically abused. There were

instances where students were forced to eat their own vomit. Some children were locked

in closets, cages, and basements. Others managed to run away, but some of those who

146

did so during the winter months died in the cold weather. Many children committed suicide

as a result of attending a Residential School.

[408] Overall, a large number of Aboriginal children under the supervision of the

Residential Schools system died while “in-care” (see A National Crime at p. 51). Many of

those who managed to survive the ordeal are psychologically scarred as a result. In

addition to the impacts on individuals, Dr. Milloy also explained how the Residential

Schools affected First Nations communities as a whole. In losing future generations to the

Residential Schools, the culture, language and the very survival of many First Nations

communities was put in jeopardy.

[409] Elder Robert Joseph, from the Kwakwaka’wakw community, gave a very moving

and detailed account of his personal experience in the Residential Schools system.

According to Elder Joseph, abuse, strip searches, withholding gifts and visits from family

members, and public shaming were very commonplace. In his view, some of the strip

searches were actually veiled instances of sexual assault. In one instance, as a form of

punishment, he recounted being stripped naked in front of the boys’ division of the school

and told to bend over. He also spoke of children being locked in closets and cages and the

prevalence of racist remarks.

[410] Elder Joseph’s experience gave him a deep sense of loneliness and he turned to

alcohol to cope with the despair. He has since turned his life around and is now an

advocate for reconciliation and healing for Aboriginal people.

[411] The Government of Canada has recognized the impacts and consequences of the

Residential Schools system. In a 2008 Statement of Apology to former students of

Residential Schools (see Annex, ex. 52), former Prime Minister Stephen Harper stated:

The treatment of children in Indian Residential Schools is a sad chapter in

our history.

For more than a century, Indian Residential Schools separated over 150,000

Aboriginal children from their families and communities. In the 1870's, the

federal government, partly in order to meet its obligation to educate

Aboriginal children, began to play a role in the development and

administration of these schools. Two primary objectives of the Residential

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Schools system were to remove and isolate children from the influence of

their homes, families, traditions and cultures, and to assimilate them into the

dominant culture. These objectives were based on the assumption

Aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed,

some sought, as it was infamously said, "to kill the Indian in the child".

Today, we recognize that this policy of assimilation was wrong, has caused

great harm, and has no place in our country.

[…]

The government now recognizes that the consequences of the Indian

Residential Schools policy were profoundly negative and that this policy has

had a lasting and damaging impact on Aboriginal culture, heritage and

language. While some former students have spoken positively about their

experiences at residential schools, these stories are far overshadowed by

tragic accounts of the emotional, physical and sexual abuse and neglect of

helpless children, and their separation from powerless families and

communities.

The legacy of Indian Residential Schools has contributed to social problems

that continue to exist in many communities today.

[…]

To the approximately 80,000 living former students, and all family members

and communities, the Government of Canada now recognizes that it was

wrong to forcibly remove children from their homes and we apologize for

having done this. We now recognize that it was wrong to separate children

from rich and vibrant cultures and traditions that it created a void in many

lives and communities, and we apologize for having done this. We now

recognize that, in separating children from their families, we undermined the

ability of many to adequately parent their own children and sowed the seeds

for generations to follow, and we apologize for having done this. We now

recognize that, far too often, these institutions gave rise to abuse or neglect

and were inadequately controlled, and we apologize for failing to protect you.

Not only did you suffer these abuses as children, but as you became

parents, you were powerless to protect your own children from suffering the

same experience, and for this we are sorry.

The burden of this experience has been on your shoulders for far too long.

The burden is properly ours as a Government, and as a country. There is no

place in Canada for the attitudes that inspired the Indian Residential Schools

system to ever prevail again. You have been working on recovering from this

experience for a long time and in a very real sense, we are now joining you

on this journey. The Government of Canada sincerely apologizes and asks

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the forgiveness of the Aboriginal peoples of this country for failing them so

profoundly.

[412] In the spirit of reconciliation, the Panel also acknowledges the suffering caused by

Residential Schools. Rooted in racist and neocolonialist attitudes, the individual and

collective trauma imposed on Aboriginal people by the Resident Schools system is one of

the darkest aspects of Canadian history. As will be explained in the following section, the

effects of Residential Schools continue to impact First Nations children, families and

communities to this day.

b. Transformation of Residential Schools into an aspect of the child

welfare system

[413] Residential Schools operated as a “school system” from the 1880’s until the 1960’s,

when it became a marked component of the child welfare system. In about 1969, the

Church’s involvement in the Residential Schools system ceased, and the federal

government took over sole management of the institutions. At around the same time, new

regulations came into effect outlining who could attend Residential Schools, placing an

emphasis on orphans and “neglected” children. The primary role of many Residential

Schools changed from a focus on “education” to a focus on “child welfare”. Despite this,

many children were not sent home, because their parents were assessed as not being

able to assume the responsibility for the care of their children (see A National Crime at pp.

211-212; and, testimony of Dr. Milloy, Transcript Vol. 34 at pp. 19-20).

[414] Over a 50-year period, between the 1930’s to the 1980’s, the number of schools

declined steadily from 78 schools in 1930 down to 12 schools in 1980. The last school

closed in 1986. The FNCFS Program is then implemented in 1990.

c. Intergenerational trauma of Residential Schools

[415] Dr. Amy Bombay, Ph.D. in neuroscience and M.Sc. in psychology, was qualified as

an expert on the psychological effects and transmission of stress and trauma on wellbeing.

She spoke about the intergenerational transmission of trauma among the offspring of

Residential School survivors. The Panel finds Dr. Bombay’s evidence reliable and helpful

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in understanding the impacts of the individual and collective trauma experienced by

Aboriginal peoples and finds her evidence highly relevant to the case at hand.

[416] Dr. Bombay explained how Residential Schools fits into the larger traumatic history

that Aboriginal peoples have been exposed to:

…for indigenous groups in Canada and worldwide, colonialism has

comprised multiple collective traumas […] these include things like military

conquest, epidemic diseases and forced relocation.

So Indian residential schools is really just one example of one

collective trauma which is part of a larger traumatic history that aboriginal

peoples have already been exposed to.

(Transcript Vol. 40 at p. 94)

[417] According to Dr. Bombay, these collective traumas have had a cumulative effect

over time, namely on individual and community health (see Transcript Vol. 40 at p. 83). In

her words: “these collective effects are greater than the sum of the individual effects”

(Transcript Vol. 40 at p. 82). Similar effects have been shown in other populations and in

other groups who have undergone similar collective traumas, such as Holocaust survivors,

Japanese Americans subjected to internment during World War II, and survivors of the

Turkish genocide of Armenians (see Transcript Vol. 40 at pp. 111-112). To measure and

describe the fact that some groups have undergone this chronic exposure to collective

traumas, Dr. Maria Yellow Horse Brave Heart of the University of New Mexico coined the

term “historical trauma”, which is defined as “…the cumulative emotional and

psychological wounding over the lifespan across generations emanating from massive

group trauma” (see testimony of Dr. Bombay, Transcript Vol. 40 at pp. 94-95).

[418] For Residential School survivors, Dr. Bombay indicated that they are more likely to

suffer from various physical and mental health problems compared to Aboriginal adults

who did not attend. For example, Residential School survivors report higher levels of

psychological distress compared to those who did not attend, and they are also more likely

to be diagnosed with a chronic physical health condition (see Transcript Vol. 40 at pp. 109-

110).

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[419] With respect to social outcomes, Dr. Bombay explained some of the

intergenerational impacts of Residential Schools as follows:

…numerous qualitative research studies have shown that the lack of

traditional parental role models in residential schools impeded the

transmission of traditional positive childrearing practices that they otherwise

would have learned from their parents, and that seeing -- being exposed to

the neglect and abuse and the poor treatment that a lot of the caregivers in

residential schools -- how they treated the children, actually instilled negative

-- a lot of negative parenting practices, as this was the only models of

parenting that they were exposed to.

(Transcript Vol. 40 at p. 110)

[420] Generationally, the above noted impacts could descend from the Residential

School survivor, to their children and then to their grandchildren. In this regard, Dr.

Bombay indicated, relying on the 2002-2003 Regional Health Survey, that 43% of First

Nations adults on-reserve perceived that their parents’ attendance at Residential School

negatively affected the parenting that they received while growing up; 73.4% believed that

their grandparents’ attendance at Residential School negatively affected the parenting that

their parents received; 37.2% of First Nations adults whose parents attended Residential

School had contemplated suicide in their life versus 25.7% whose parents did not; and, the

grandchildren of survivors were also at an increased risk for suicide as 28.4% had

attempted suicide versus only 13.1% of those whose grandparents did not attend

Residential School (see Transcript at Vol. 40 pp. 110-11, 114-115).

[421] In her own recent comprehensive research assessing the health and well-being of

First Nations people living on reserve, Dr. Bombay found that children of Residential

School survivors reported greater adverse childhood experiences and greater traumas in

adulthood, all of which appeared to contribute to greater depressive symptoms in

Residential School offspring (see Annex, ex. 53 at p. 373; see also Transcript Vol. 40 at

pp. 69, 71).

[422] Dr. Bombay’s evidence helps inform the child and family services needs of

Aboriginal peoples. Generally, it reinforces the higher level of need for those services on-

reserves. By focusing on bringing children into care, the FNCFS Program, corresponding

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funding formulas and other related provincial/territorial agreements perpetuate the damage

done by Residential Schools rather than attempting to address past harms. The history of

Residential Schools and the intergenerational trauma it has caused is another reason - on

top of some of the other underlying risk factors affecting Aboriginal children and families

such as poverty and poor infrastructure - that exemplify the additional need of First Nations

people to receive adequate child and family services, including least disruptive measures

and, especially, services that are culturally appropriate.

[423] AANDC submits that in determining what services to provide and how to deliver

them, the FNCFS Agencies decide what is “culturally appropriate” for their community. The

definition of what is culturally appropriate depends on the specific culture of each First

Nation community. According to AANDC, this is best left to the discretion of the FNCFS

Agencies or First Nations leadership.

[424] However, in the 2008 Report of the Auditor General of Canada, the Auditor General

indicated that “[t]o deliver this program as the policy requires, we expected that the

Department would, at a minimum know what “culturally appropriate services” means” (at s.

4.18, p. 12). That is, AANDC had no assurances that the FNCFS Program funds child

welfare services that are culturally appropriate. In response, AANDC developed a guiding

principle for what it understands culturally appropriate services to be:

the Government of Canada provides funding, as a matter of social policy, to

support the delivery of culturally appropriate services among First

Nation communities that acknowledge and respect values, beliefs and

unique circumstances being served. As such, culturally appropriate

services encourage activities such as kinship care options where a child is

placed with an extended family member so that cultural identity and

traditions may be maintained.

(see AANDC’s Response to the 2009 Report of the Standing Committee on

Public Accounts, emphasis added)

[425] Even with this guiding principle, if funding is restricted to provide such services,

then the principle is rendered meaningless. A glaring example of this is the denial of

funding for Band Representatives under the 1965 Agreement in Ontario. Another is the

assumptions built into Directive 20-1 and the EPFA. If funding does not correspond to the

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actual child welfare needs of a specific First Nation community, then how is it expected to

provide services that are culturally appropriate? With unrealistic funding, how are some

First Nations communities expected to address the effects of Residential Schools? It will

be difficult if not impossible to do, resulting in more kids ending up in care and

perpetuating the cycle of control that outside forces have exerted over Aboriginal culture

and identity.

[426] Similar to the Residential Schools era, today, the fate and future of many First

Nations children is still being determined by the government, whether it is through the

application of restrictive and inadequate funding formulas or through bilateral agreements

with the provinces. The purpose of having a First Nation community deliver child and

family services, and to be involved through a Band Representative, is to ensure services

are culturally appropriate and reflect the needs of the community. This in turn may help

legitimize the child and family services in the eyes of the community, increasing their

effectiveness, and ultimately help rebuild individuals, families and communities that have

been heavily affected by the Residential Schools system and other historical trauma.

[427] In this regard, it should be noted again that the federal government is in a fiduciary

relationship with Aboriginal peoples and has undertaken to improve outcomes for First

Nations children and families in the provision of child and family services. On this basis,

more has to be done to ensure that the provision of child and family services on First

Nations reserves is meeting the best interest of those communities and, in the particular

context of this case, the best interest of First Nations children. This also corresponds to

Canada’s international commitments recognizing the special status of children and

Indigenous peoples.

iii. Canada’s international commitments to children and Indigenous

peoples

[428] As stated earlier, Amnesty International was granted “Interested Party” status to

assist the Tribunal in understanding the relevance of Canada’s international human rights

obligations to the Complaint. Amnesty International argues that the interpretation and

application of the CHRA, and in particular of section 5, must respect Canada’s

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international obligations as enunciated in various international United Nations instruments,

such as the Convention on the Rights of the Child, the International Covenant on Civil and

Political Rights, the International Covenant on Economic, Social and Cultural Rights, the

Convention on Elimination of all Forms of Discrimination, the Universal Declaration on

Human Rights and the Declaration on the Rights of Indigenous Peoples.

[429] Amnesty International also refers to the views of treaty bodies, such as the United

Nations Human Rights Committee (UNHRC), the Committee on Economic, Social and

Cultural Rights (CESCR), the Committee on the Elimination of Racial Discrimination

(CERD) and the Committee on the Rights of the Child (CRC) in support of its argument

that when a treatment discriminates both on the basis of First Nations identity and because

of residency, it constitutes multiple violations of the prohibition of discrimination, which is a

peremptory norm of international law. Specifically, Amnesty International points to these

bodies’ recommendations that special attention must be given to the prohibition of

discrimination against children.

[430] In AANDC’s view, the international law concepts and arguments advanced by

Amnesty International do not assist the Tribunal in interpreting and applying the CHRA to

the facts of this Complaint. Rather, they see Amnesty International’s arguments as a claim

that the Government of Canada is in violation of its international obligations, which is

beyond the purview of the Complaint.

[431] In order to form part of Canadian law, international treaties need national legislative

implementation, unless they codify norms of customary international law that are already

found in Canadian domestic law. However, when a country becomes party to a treaty or a

covenant, it clearly indicates its adherence to the contents of such a treaty or covenant

and therefore makes a commitment to implement its principles in its national legislation.

This public engagement is solemn and binding in international law. It is a declaration from

the country that its national legislation will reflect its international commitments. Therefore,

international law remains relevant in interpreting the scope and content of human rights in

Canadian law, as was underlined by the Supreme Court on numerous occasions since

Chief Justice Dickson’s dissent in Reference Re Public Service Employee Relations Act

(Alta.), [1987] 1 SCR 313.

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[432] The basic principle, which is not limited to Charter interpretation, is that “the Charter

should generally be presumed to provide protection at least as great as that afforded by

similar provisions in international human rights documents which Canada has ratified”

(Slaight Communications Inc. v. Davidson, [1989] 1 SCR 1038 at p. 1056). That is so

because Parliament and the provincial legislatures are presumed to respect the principles

of international law (see Baker at para. 81).

[433] This approach often leads the Supreme Court to look at decisions and

recommendations of human right bodies to interpret the scope and content of domestic

law provisions in the light of international law (see for example Canada (Human Rights

Commission) v. Taylor, [1990] 3 SCR 892 at p. 920; B. (R.) v. Children's Aid Society of

Metropolitan Toronto, [1995] 1 SCR 315 at pp. 149-150; Divito v. Canada (Public Safety

and Emergency Preparedness), 2013 SCC 47 at paras 26-27; and, Saskatchewan

Federation of Labour v. Saskatchewan, 2015 SCC 4 at paras 154-160).

[434] In recent years, the Supreme Court has been willing to expand the relevance of

international law and to give effect to Canada’s role and actions in the development of

norms of international law, particularly in the area of human rights (see United States v.

Burns, 2001 SCC 7 at para. 81 [Burns]; and, Canada (Justice) v. Khadr, 2008 SCC 28 at

paras. 2-3). In Burns, the Supreme Court found that Canada’s advocacy for the abolition of

the death penalty, and efforts to bring about change in extradition arrangements when a

fugitive faces the death penalty, prevented it from extraditing someone to the United

States facing the same sentence without obtaining assurance that it would not be carried

out. The same reasoning applies to the case at hand as Canada has expressed its views

internationally on the importance of human rights on numerous occasions.

[435] Indeed, since the foundation of the United Nations (the UN), Canada has been

actively involved in the promotion of human rights on the international scene. This began

with the participation of the Canadian Director of the UN Secretariat’s Division for Human

Rights, Mr. John Humphrey, in writing the preliminary draft of the Universal Declaration of

Human Rights (the Universal Declaration), in 1947. Today, Canada still voices itself as a

strong supporter of human rights at the international level.

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[436] Canada’s international human rights obligations with respect to equality and non-

discrimination stem from various legal instruments. Similarities can be seen in the wording

of both domestic and international human rights instruments and in the scope and content

of their provisions. The close relationship between Canadian and international human

rights law can also be seen both in the periodic reports submitted by Canada to various

international treaty monitoring bodies on the steps taken domestically to give effect to the

obligations flowing from the treaties and in the monitoring bodies’ recommendations to

Canada.

[437] Developments in human rights at the national level followed the Universal

Declaration at the international level. Adopted by the United Nations General Assembly by

resolution 217A at its 3rd session in Paris on 10 December 1948, article 2 of the Universal

Declaration sets out the principle of equality and non-discrimination in the enjoyment of

human rights. Article 7 proclaims equality before the law and equal protection of the law.

As indicated above, these equality principles are now ingrained in section 15 of the

Charter and in the purpose of the CHRA.

[438] Initially, the Universal Declaration was intended as a guide for governments in their

efforts to guarantee human rights domestically. It was also meant to enunciate human

rights principles that would be further developed into a legally binding convention. This

eventually led to the adoption of two covenants and two optional protocols that, along with

the Universal Declaration, are considered to form the International Bill of Rights.

[439] The first of those two covenants was the International Covenant on Civil and

Political Rights, 999 U.N.T.S. 171 (the ICCPR), entered into force by Canada on August

19, 1976. At the same time, Canada recognized the jurisdiction of the UNHRC to hear

individual complaints by ratifying the Optional Protocol to the International Covenant on

Civil and Political Rights, 999 U.N.T.S. 302. Articles 2 and 26 of the ICCPR guarantee

equality and prohibit discrimination in terms that are similar to those of the Universal

Declaration.

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[440] In General Comment 18, thirty-seventh session, 10 November 1989 at paragraph

7, the UNHRC stated that the term “discrimination” as used in the ICCPR should be

understood to imply:

any distinction, exclusion, restriction or preference which is based on any

ground such as race, colour, sex, language, religion, political or other

opinion, national or social origin, property, birth or other status, and which

has the purpose or effect of nullifying or impairing the recognition, enjoyment

or exercise by all persons, on an equal footing, of all rights and freedoms.

The UNHRC went on to state that the aim of the protection is substantive equality, and to

achieve this aim States may be required to take specific measures (see at paras. 5, 8, and

12-13).

[441] The second of the two covenants that stem directly from the Universal Declaration

is the International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3 (the

ICESCR), which Canada entered into force on August 19, 1976. Article 2(2) guarantees

the exercise of the rights protected without discrimination. Article 10 provides that special

measures of protection and assistance should be taken on behalf of all children and young

persons without any discrimination for reasons of parentage or other conditions.

[442] The ICESCR is considered to be of progressive application. However, in General

Comment No. 20, 2 July 2009 (E/C.12/GC/20), the CESCR stated that, given their

importance, the principles of equality and non-discrimination are of immediate application,

notwithstanding the provisions of article 2 of the ICESR (see paras. 5 and 7). The CESCR

also affirmed that the aim of the ICESCR is to achieve substantive equality by “…paying

sufficient attention to groups of individuals which suffer historical or persistent prejudice

instead of merely comparing the formal treatment of individuals in similar situations” (at

paras. 8; see also paras. 9 and 10). It added that the exercise of covenant rights should

not be conditional on a person’s place of residence (see at para. 34).

[443] In a report to the CESCR outlining key measures it adopted for the period of

January 2005 to December 2009 to enhance its implementation of the ICESCR, Canada

reported on the FNCFS Program and declared that “[t]he anticipated result is a more

secure and stable family environment and improved outcomes for Indian children ordinarily

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resident on reserve” (see Canada’s Sixth Report on the United Nations’ International

Covenant on Economic, Social and Cultural Rights (Minister of Public Works and

Government Services, 2013) at para. 103). Canada also reported that it had begun

transitioning the FNCFS Program to a more prevention based model, the EPFA, “…on a

jurisdiction-by-jurisdiction basis with ready and willing First Nations and provincial/territorial

partners […] with the goal to have all jurisdictions on board by 2013” (at paras. 105-106).

While the Government of Canada made this undertaking, the evidence is clear that this

goal was not met.

[444] In addition to the covenants that protect human rights in general, Canada is a party

to legal instruments that focus on specific issues or aim to protect specific groups of

persons. Canada is a party to the International Convention for the Elimination of all Forms

of Racial Discrimination, 660 U.N.T.S. 195 (the ICERD), ratified in 1970. The ICERD

clarifies the prohibition of discrimination found in the Universal Declaration, to which it

refers to in its preamble. Articles 1 and 2 define racial discrimination and direct States to

take all necessary measures to ensure the adequate development and protection of

certain racial groups or individuals belonging to them. The purpose is to guarantee them

the full and equal enjoyment of human rights and fundamental freedoms, including special

measures whenever warranted. Article 5 further highlights rights whose enjoyment must

be free of discrimination, including the right to social services, which includes public health,

medical care and social security.

[445] The monitoring body of the ICERD, the CERD, has discussed the meaning and

scope of special measures in the ICERD. It has expressed a similar understanding of

substantive equality as Canadian courts (see CERD, General Recommendation No. 32,

September 24, 2009 (CERD/C/GC/32) at para. 8). In addition, it recognized that “special

measures” that may be called for in order to achieve effective equality “…include the full

span of legislative, executive, administrative, budgetary and regulatory instruments, at

every level in the State apparatus…” (at para. 13).

[446] In 2011, Canada reported to the CERD on the measures taken domestically to

implement the ICERD. The CERD made several recommendations, including:

“[d]iscontinuing the removal of Aboriginal children from their families and providing family

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and child care services on reserves with sufficient funding” [see Consideration of reports

submitted by States parties under article 9 of the convention, Concluding observations of

the CERD, 9 March 2012 (CERD/C/CAN/CO/19-20) at para. 19(f)].

[447] Although AANDC argues that the federal government is merely funding child

welfare services on-reserve as a matter of social policy, budgetary measures in and of

themselves are an important component of the steps to be taken in order to achieve

substantive equality for First Nations children. The recommendation of the CERD, read

with the views it expressed in General Recommendation No. 32, indicate that the CERD

sees insufficient funding of child care services on reserve as inhibiting substantive equality

for First Nations in the provision of child and family services.

[448] Another important international instrument aiming at the protection of a specific

group of persons that is relevant to the present case is the Convention on the Rights of the

Child, Can. T.S. 1992 No. 3 (the CRC), entered into force by Canada on January 12,

1992. Children have the same human rights as adults. However, they are more vulnerable

and in need of protection that addresses their special needs. Consequently, the CRC

focuses on giving them the special care, assistance and legal protection that they need

(see in particular articles 2, 3, 5, 7.1, 8.1, 9, 9.1, 18.1, 20, 25 and 30). Furthermore, when it

ratified the CRC, Canada made a Statement of Understanding expressing its view that, in

assessing what measures are appropriate to implementing the rights recognized in the

CRC, the rights of Aboriginal children to enjoy their own culture, to profess and practice

their own religion and to use their own language must not be denied (Convention on the

Rights of the Child, Declarations and Reservations, Canada, online: United Nations

<http://www.treaties.un.org>).

[449] The CRC’s monitoring body, the CRC Committee, stressed the importance of

culturally appropriate social services for indigenous children (see General Comment No.

11, February 12, 2009 (CRC/C/GC/11) at para. 25). With respect to childcare and support

services, Canada reported that “[t]he Government of Canada plays a supporting role by

providing a range of child and family benefits and transferring funds to other governments

in Canada based on shared goals and objectives” (Canada’s Third and Fourth Reports on

the Convention on the Rights of the Child, 20 November 2009 at para. 49). Canada also

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reported, as it did to the CESCR, that it is incrementally shifting its child welfare programs

for Aboriginal children to a prevention-focused approach and that it expected that all

agencies would be using the prevention-focused approach by 2013 (see at para. 98).

[450] In response to Canada, the CRC Committee expressed deep concern “…at the

high number of children in alternative care and at the frequent removal of children from

their families as a first resort in cases of neglect or financial hardship or disability”

(Concluding observations on the combined third and fourth periodic report of Canada,

adopted by the Committee at its sixty-first session (17 September – 5 October 2012), 6

December 2012 (CRC/C/CAN/CO/3-4) at para. 55). Among other things, the CRC

Committee recommended that Canada intensify cooperation with communities and

community leaders to find suitable alternative care solutions for children in these

communities [see at para. 56(f)]. It further recommended that Canada “[e]nsure that

funding and other support, including welfare services, provided to Aboriginal, African-

Canadian, and other minority children, including welfare services, is comparable in quality

and accessibility to services provided to other children in the State party and is adequate

to meet their needs” [see at para. 68(c)].

[451] Again, the recommendations of the CRC Committee reinforce the need for

adequate funding, linked to the needs of First Nations children and families, in order to

achieve substantive equality in the provision of child and family services on-reserve.

[452] Finally, the United Nations Declaration on the Rights of Indigenous Peoples, GA

Res. 61/295, UN GAOR, 61st Sess., Supp. No 49 Vol III, UN Doc A/61/49 (2007) (the

UNDRIP), which was adopted by the United Nations General Assembly on September 13,

2007, was endorsed by Canada on November 12, 2010. Article 2 provides that Indigenous

peoples and individuals are free and equal to all other peoples and individuals and have

the right to be free from any kind of discrimination, in the exercise of their rights, in

particular rights based on their indigenous origin or identity. Although this international

instrument is, at the time being, a declaration and not a treaty or a covenant, and is not

legally binding except to the extent that some of its provisions reflect customary

international law, when Canada endorsed it, it reaffirmed its commitment to “…improve the

well-being of Aboriginal Canadians”(Canada's Statement of Support on the United Nations

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Declaration on the Rights of Indigenous Peoples, November 12, 2010, online: Indigenous

and Northern Affairs Canada <http://www.aadnc-aandc.gc.ca>).

[453] The international instruments and treaty monitoring bodies referred to above view

equality to be substantive and not merely formal. Consequently, they consider that specific

measures, including of a budgetary nature, are often required in order to achieve

substantive equality. These international legal instruments also reinforce the need for due

attention to be paid to the unique situation and needs of children and First Nations people,

especially the combination of those two vulnerable groups: First Nations children.

[454] The concerns expressed by international monitoring bodies mirror many of the

issues raised in this Complaint. The declarations made by Canada in its periodic reports to

the various monitoring bodies clearly show that the federal government is aware of the

steps to be taken domestically to address these issues. Canada’s statements and

commitments, whether expressed on the international scene or at the national level,

should not be allowed to remain empty rhetoric.

[455] Substantive equality and Canada’s international obligations require that First

Nations children on-reserve be provided child and family services of comparable quality

and accessibility as those provided to all Canadians off-reserve, including that they be

sufficiently funded to meet the real needs of First Nations children and families and do not

perpetuate historical disadvantage.

VI. Complaint substantiated

[456] In light of the above, the Panel finds the Complainants have presented sufficient

evidence to establish a prima facie case of discrimination under section 5 of the CHRA.

Specifically, they prima facie established that First Nations children and families living on

reserve and in the Yukon are denied [s. 5(a)] equal child and family services and/or

differentiated adversely [s. 5(b)] in the provision of child and family services.

[457] Through the FNCFS Program and other related provincial/territorial agreements,

AANDC provides a service intended to “ensure”, “arrange”, “support” and/or “make

available” child and family services to First Nations on reserve. With specific regard to the

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FNCFS Program, the objective is to ensure culturally appropriate child and family services

to First Nations children and families on reserve and in the Yukon that are intended to be

in accordance with provincial/territorial legislation and standards and provided in a

reasonably comparable manner to those provided off reserve in similar circumstances.

However, the evidence in this case demonstrates that AANDC does more than just ensure

the provision of child and family services to First Nations, it controls the provision of those

services through its funding mechanisms to the point where it negatively impacts children

and families on reserve.

[458] AANDC’s design, management and control of the FNCFS Program, along with its

corresponding funding formulas and the other related provincial/territorial agreements

have resulted in denials of services and created various adverse impacts for many First

Nations children and families living on reserves. Non-exhaustively, the main adverse

impacts found by the Panel are:

 The design and application of the Directive 20-1 funding formula, which provides

funding based on flawed assumptions about children in care and population

thresholds that do not accurately reflect the service needs of many on-reserve

communities. This results in inadequate fixed funding for operation (capital costs,

multiple offices, cost of living adjustment, staff salaries and benefits, training, legal,

remoteness and travel) and prevention costs (primary, secondary and tertiary

services to maintain children safely in their family homes), hindering the ability of

FNCFS Agencies to provide provincially/territorially mandated child welfare

services, let alone culturally appropriate services to First Nations children and

families and, providing an incentive to bring children into care because eligible

maintenance expenditures are reimbursable at cost.

 The current structure and implementation of the EPFA funding formula, which

perpetuates the incentives to remove children from their homes and incorporates

the flawed assumptions of Directive 20-1 in determining funding for operations and

prevention, and perpetuating the adverse impacts of Directive 20-1 in many on-

reserve communities.

 The failure to adjust Directive 20-1 funding levels, since 1995; along with funding

levels under the EPFA, since its implementation, to account for inflation/cost of

living;

 The application of the 1965 Agreement in Ontario that has not been updated to

ensure on-reserve communities can comply fully with Ontario’s Child and Family

Services Act.

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 The failure to coordinate the FNCFS Program and other related provincial/territorial

agreements with other federal departments and government programs and services

for First Nations on reserve, resulting in service gaps, delays and denials for First

Nations children and families.

 The narrow definition and inadequate implementation of Jordan’s Principle,

resulting in service gaps, delays and denials for First Nations children.

[459] The FNCFS Program, corresponding funding formulas and other related

provincial/territorial agreements only apply to First Nations people living on-reserve and in

the Yukon. It is only because of their race and/or national or ethnic origin that they suffer

the adverse impacts outlined above in the provision of child and family services.

Furthermore, these adverse impacts perpetuate the historical disadvantage and trauma

suffered by Aboriginal people, in particular as a result of the Residential Schools system.

[460] AANDC’s evidence and arguments challenging the Complainants’ allegations of

discrimination have been addressed throughout this decision. Overall, the Panel finds

AANDC’s position unreasonable, unconvincing and not supported by the preponderance

of evidence in this case. Otherwise, as mentioned earlier, AANDC did not raise a statutory

exception under sections 15 or 16 of the CHRA.

[461] Despite being aware of the adverse impacts resulting from the FNCFS Program for

many years, AANDC has not significantly modified the program since its inception in 1990.

Nor have the schedules of the 1965 Agreement in Ontario been updated since 1998.

Notwithstanding numerous reports and recommendations to address the adverse impacts

outlined above, including its own internal analysis and evaluations, AANDC has sparingly

implemented the findings of those reports. While efforts have been made to improve the

FNCFS Program, including through the EPFA and other additional funding, those

improvements still fall short of addressing the service gaps, denials and adverse impacts

outlined above and, ultimately, fail to meet the goal of providing culturally appropriate child

and family services to First Nations children and families living on-reserve that are

reasonably comparable to those provided off-reserve.

[462] This concept of reasonable comparability is one of the issues at the heart of the

problem. AANDC has difficulty defining what it means and putting it into practice, mainly

because its funding authorities and interpretation thereof are not in line with

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provincial/territorial legislation and standards. Despite not being experts in the area of child

welfare and knowing that funding according to its authorities is often insufficient to meet

provincial/territorial legislation and standards, AANDC insists that FNCFS Agencies

somehow abide by those standards and provide reasonably comparable child and family

services. Instead of assessing the needs of First Nations children and families and using

provincial legislation and standards as a reference to design an adequate program to

address those needs, AANDC adopts an ad hoc approach to addressing needed changes

to its program.

[463] This is exemplified by the implementation of the EPFA. AANDC makes

improvements to its program and funding methodology, however, in doing so, also

incorporates a cost-model it knows is flawed. AANDC tries to obtain comparable variables

from the provinces to fit them into this cost-model, however, they are unable to obtain all

the relevant variables given the provinces often do not calculate things in the same fashion

or use a funding formula. By analogy, it is like adding support pillars to a house that has a

weak foundation in an attempt to straighten and support the house. At some point, the

foundation needs to be fixed or, ultimately, the house will fall down. Similarly, a REFORM

of the FNCFS Program is needed in order to build a solid foundation for the program to

address the real needs of First Nations children and families living on reserve.

[464] Not being experts in child welfare, AANDC’s authorities are concerned with

comparable funding levels; whereas provincial/territorial child and family services

legislation and standards are concerned with ensuring service levels that are in line with

sound social work practice and that meet the best interest of children. It is difficult, if not

impossible, to ensure reasonably comparable child and family services where there is this

dichotomy between comparable funding and comparable services. Namely, this

methodology does not account for the higher service needs of many First Nations children

and families living on reserve, along with the higher costs to deliver those services in many

situations, and it highlights the inherent problem with the assumptions and population

levels built into the FNCFS Program.

[465] AANDC’s reasonable comparability standard does not ensure substantive equality

in the provision of child and family services for First Nations people living on reserve. In

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this regard, it is worth repeating the Supreme Court’s statement in Withler, at paragraph

59, that “finding a mirror group may be impossible, as the essence of an individual’s or

group’s equality claim may be that, in light of their distinct needs and circumstances, no

one is like them for the purposes of comparison”. This statement fits the context of this

complaint quite appropriately. That is, human rights principles, both domestically and

internationally, require AANDC to consider the distinct needs and circumstances of First

Nations children and families living on-reserve - including their cultural, historical and

geographical needs and circumstances – in order to ensure equality in the provision of

child and family services to them. A strategy premised on comparable funding levels,

based on the application of standard funding formulas, is not sufficient to ensure

substantive equality in the provision of child and family services to First Nations children

and families living on-reserve.

[466] As a result, and having weighed all the evidence and argument in this case on a

balance of probabilities, the Panel finds the Complaint substantiated.

[467] The Panel acknowledges the suffering of those First Nations children and families

who are or have been denied an equitable opportunity to remain together or to be reunited

in a timely manner. We also recognize those First Nations children and families who are or

have been adversely impacted by the Government of Canada’s past and current child

welfare practices on reserves.

VII. Order

[468] As the Complaint has been substantiated, the Panel may make an order against

AANDC pursuant to section 53(2) of the CHRA. The aim in making an order under section

53(2) is not to punish AANDC, but to eliminate discrimination (see Robichaud at para. 13).

To accomplish this, the Tribunal’s remedial discretion must be exercised on a principled

basis, considering the link between the discriminatory practice and the loss claimed (see

Chopra v. Canada (Attorney General), 2007 FCA 268 at para. 37). In other words, the

Tribunal’s remedial discretion must be exercised reasonably, in consideration of the

165

particular circumstances of the case and the evidence presented (Hughes v. Elections

Canada, 2010 CHRT 4 at para. 50).

[469] It is also important to reiterate that the CHRA gives rise to rights of vital importance.

Those rights must be given full recognition and effect through the Act. In crafting remedies

under the CHRA, the Tribunal’s powers under section 53(2) must be given such fair, large

and liberal interpretation as will best ensure the objects of the Act are obtained. Applying a

purposive approach, remedies under the CHRA should be effective in promoting the right

being protected and meaningful in vindicating the rights and freedoms of the victim of

discrimination (see CN v. Canada (Canadian Human Rights Commission), [1987] 1 SCR

1114 at p. 1134; and, Doucet-Boudreau at paras. 25 and 55).

[470] The Complainants, Commission and Interested Parties request a variety of

remedies to address the findings in this Complaint, including declaratory orders; orders to

cease the discriminatory practice and take measures to redress or prevent it from

reoccurring; and, compensation under sections 53(2)(e) and 53(3) of the CHRA.

[471] Furthermore, unrelated to the remedies requested under section 53(2), the Panel is

also seized of a previous motion from the Complainants for costs related to the allegation

that AANDC abused the Tribunal’s process through its late disclosure of documents.

A. Findings of discrimination

[472] The Caring Society requests several declarations be made by the Tribunal in order

to clarify which aspects of the FNCFS Program, corresponding funding formulas and other

related provincial/territorial agreements are discriminatory. According to the Caring

Society, this Tribunal routinely provides declaratory relief in the form of findings of

discrimination.

[473] Indeed, throughout this decision, and generally at paragraph 458 above, the Panel

has outlined the main adverse impacts it has found in relation to the FNCFS Program and

other related provincial/territorial agreements. As race and/or national or ethnic origin is a

factor in those adverse impacts, the Panel concluded First Nations children and families

living on reserve and in the Yukon are discriminated against in the provision of child and

166

family services by AANDC. The Panel believes these findings address the Caring

Society’s request for declaratory relief.

B. Cease the discriminatory practice and take measures to redress and

prevent it

[474] Section 53(2)(a) of the CHRA allows the Tribunal to order that the person found to

be engaging in the discriminatory practice “cease the discriminatory practice and take

measures, in consultation with the Commission on the general purposes of the measures,

to redress the practice or to prevent the same or a similar practice from occurring in

future”. Furthermore, section 53(2)(b) allows the Tribunal to order that the person “…make

available to the victim of the discriminatory practice, on the first reasonable occasion, the

rights, opportunities or privileges that are being or were denied the victim as a result of the

practice”.

[475] Pursuant to these sections of the CHRA, the Complainants and Commission

request immediate relief for First Nations children. In their view, this can be accomplished

by ordering AANDC to remove the most discriminatory aspects of the funding schemes it

uses to fund FNCFS Agencies under the FNCFS Program and child and family services in

Ontario under the 1965 Agreement; and, requiring AANDC to properly implement Jordan’s

Principle. Moving forward in the long term, the Complainants and Commission request

other orders that AANDC reform the FNCFS Program and the 1965 Agreement to ensure

equitable levels of service, including funding thereof, for First Nations child and family

services on-reserve.

[476] The Caring Society has provided a detailed methodology of how this reform can be

achieved. It proposes a three-step process to redesign the FNCFS Program: (1)

reconvene the National Advisory Committee to identify discriminatory elements in the

provision of funding to FNCFS Agencies and make recommendations thereon; (2) fund tri-

partite regional tables to negotiate the implementation of equitable and culturally based

funding mechanisms and policies for each region; and, (3) develop an independent expert

structure with the authority and mandate to ensure AANDC maintains non-discriminatory

and culturally appropriate First Nations child and family services.

167

[477] Relatedly, the Caring Society also requests the public posting of information

regarding the FNCFS Program, Jordan’s Principle and children in care to educate FNCFS

Agencies and the public about AANDC’s child welfare policies, practices and directives

and to help prevent future discrimination. Furthermore, it asks that AANDC staff be trained

on First Nations culture, historic disadvantage, human rights and social work.

[478] The AFN requests similar reform, including commissioning a study to determine the

most effective means of providing care for First Nations children and families and greater

performance measurements and evaluations of AANDC employees related to the

provision of First Nations child and family services. Similarly, in Ontario, the COO requests

that an independent study of funding and service levels for First Nations child welfare in

Ontario based on the 1965 Agreement be conducted.

[479] Consistent with Canada’s international obligations, Amnesty International stresses

the need for a timely and effective remedy to achieve substantive equality for First Nations

children and families on reserve, including increased funding, systemic structural changes

to the way AANDC provides funding and a comprehensive and systematic monitoring

mechanism for assuring non-repetition of breaches of the rights of First Nations children.

[480] AANDC submits that, while the Tribunal may order amendments to policy and

provide guidance on the shape of amendments, it cannot prescribe the specific policy that

must be adopted. According to AANDC, this is particularly appropriate in this case where

the policy at issue is a complex scheme that takes into account competing priorities and

must fit within broader governmental policy approaches. Such decisions are entitled to

some considerable degree of deference and margin of reasonableness. Furthermore,

AANDC argues the proposed remedy would intrude into the executive branch of

government’s role to establish public policy and direct the spending of public funds in

accordance with fiscal priorities. AANDC is also concerned that some of the proposed

reform measures are over-broad and beyond the scope of the Complaint. As such, it views

aspects of the methodology proposed by the Complainants to be beyond the power of the

Tribunal or any other court to order.

168

[481] The Panel is generally supportive of the requests for immediate relief and the

methodologies for reforming the provision of child and family services to First Nations

living on reserve, but also recognizes the need for balance espoused by AANDC. AANDC

is ordered to cease its discriminatory practices and reform the FNCFS Program and 1965

Agreement to reflect the findings in this decision. AANDC is also ordered to cease

applying its narrow definition of Jordan’s Principle and to take measures to immediately

implement the full meaning and scope of Jordan's principle.

[482] More than just funding, there is a need to refocus the policy of the program to

respect human rights principles and sound social work practice. In the best interest of the

child, all First Nations children and families living on-reserve should have an opportunity

“…equal with other individuals to make for themselves the lives that they are able and wish

to have and to have their needs accommodated, consistent with their duties and

obligations as members of society” (CHRA at s. 2).

[483] That said, given the complexity and far-reaching effects of the relief sought, the

Panel wants to ensure that any additional orders it makes are appropriate and fair, both in

the short and long-term. Throughout these proceedings, the Panel reserved the right to

ask clarification questions of the parties while it reviewed the evidence. While a

discriminatory practice has occurred and is ongoing, the Panel is left with outstanding

questions about how best to remedy that discrimination. The Panel requires further

clarification from the parties on the actual relief sought, including how the requested

immediate and long-term reforms can best be implemented on a practical, meaningful and

effective basis.

[484] Within three weeks of the date of this decision, the Panel will contact the parties to

determine a process for having its outstanding questions on remedy answered on an

expeditious basis.

C. Compensation

[485] Under section 53(2)(e), the Tribunal can order compensation to the victim of

discrimination for any pain and suffering that the victim experienced as a result of the

169

discriminatory practice. In addition, section 53(3) provides for the Tribunal to order

compensation to the victim if the discriminatory practice was engaged in wilfully or

recklessly. Awards of compensation under each of those sections cannot exceed $20,000.

[486] The Caring Society asks the Panel to award compensation under section 53(3) for

AANDC’s wilful and reckless discriminatory conduct with respect to each First Nations

child taken into care since February 2006 to the date of the award. In the Caring Society’s

view, as early as the 2000 findings of the NPR, AANDC voluntarily and egregiously

omitted to rectify discrimination against First Nations children. It also notes that the federal

government benefited for many years from the money it failed to devote to the provision of

equal child and family services for First Nations children. As a result, it believes the

maximum amount of $20,000 should be awarded per child. The Caring Society requests

the compensation be placed in an independent trust to fund healing activities for the

benefit of First Nations children who have suffered discrimination in the provision of child

and family services.

[487] The AFN also requests compensation. It asks for an order that it, AANDC, the

Caring Society and the Commission form an expert panel to establish appropriate

individual compensation for children, parents and siblings impacted by the child welfare

practices on reserve between 2006 and the date of the Tribunal’s order.

[488] Amnesty International submits any compensation should address both physical and

psychological damages, including the emotional harm and inherent indignity suffered as a

result of the breach.

[489] AANDC submits there is insufficient evidence before the Tribunal to award the

requested compensation. It argues the Caring Society’s request is fundamentally flawed

as it depends on the unproven premise that all these children were removed from their

homes because of AANDC’s funding practices. According to AANDC, the Caring Society’s

assertions overlook the complex nature of factors that lead to a child being removed from

his or her home and, given the absence of individual evidence thereon, it is impossible for

the Tribunal to assess compensation on an individual basis. Furthermore, AANDC submits

170

the Complainants’ authority to receive and distribute funds on behalf of “victims” has not

been established.

[490] Similar to its comments above, the Panel has outstanding questions regarding the

Complainants’ request for compensation under sections 53(2)(e) and 53(3) of the CHRA.

Again, within three weeks of the date of this decision, the Panel will contact the parties to

determine a process for having its outstanding questions on remedy answered.

D. Costs for obstruction of process

[491] As part of a motion for disclosure decided in ruling 2013 CHRT 16, the

Complainants requested costs from AANDC with respect to its alleged obstruction of the

Tribunal’s process. At that time, the Panel took the costs request under reserve and

indicated the issue would be the subject of a subsequent ruling. The Complainants have

reiterated their request for costs as part of their closing submissions on this Complaint. In

response, AANDC reaffirmed its assertion that the Tribunal does not have the authority to

award such costs.

[492] The Panel continues to reserve its ruling on the Complainants’ request for costs in

relation to the motion for disclosure decided in ruling 2013 CHRT 16. A ruling on the issue

will be provided in due course.

E. Retention of jurisdiction

[493] The Complainants, Commission and Interested Parties request the Panel retain

jurisdiction over this matter until any orders are fully implemented.

[494] As indicated above, the Panel has outstanding questions on the remedies being

sought by the Complainants and Commission. A determination on those remedies is still to

be made. As such, the Panel will maintain jurisdiction over this matter pending the

determination of those outstanding remedies. Any further retention of jurisdiction will be re-

evaluated when those determinations are made.

171

Signed by

Sophie Marchildon

Panel Chairperson

Edward P. Lustig

Tribunal Member

Ottawa, Ontario

January 26, 2016

172

VIII. Annex: exhibit references

1. Exhibit HR-6, Tab 74: Glossary of Social Work Terms, prepared for the Canadian

Human Rights Commission by Michelle Sturtridge (February 2013)

2. Exhibit HR-1, Tab 3: Dr. Rose-Alma J. MacDonald & Dr. Peter Ladd et al., First

Nations Child and Family Services Joint National Policy Review Final Report

(Ottawa: Assembly of First Nations and Department of Indian Affairs and Northern

Development, 2000)

3. Exhibit HR-3, Tab 29: Department of Indian and Northern Affairs Canada, First

Nations Child and Family Services National Program Manual (Ottawa: Social Policy

and Programs Branch, 2004)

4. Exhibit HR-13, Tab 272: Indian and Northern Affairs Canada, National Social

Programs Manual (January 31, 2012)

5. Exhibit HR-11, Tab 214: Memorandum of Agreement Respecting Welfare

Programs for Indians, between the Government of Canada and the Government of

the Province of Ontario (19 May, 1966)

6. Exhibit HR-13, Tab 270: Arrangement for the Funding and Administration of Social

Services, between Her Majesty the Queen in right of Canada and Her Majesty the

Queen in right of Alberta (23 January, 1992)

7. Exhibit HR-13, Tab 275: Service Agreement Regarding the Funding of Child

Protection Services of First Nations Children Ordinarily Resident on Reserve,

between the Province of British Columbia and Her Majesty the Queen in right of

Canada (March 30, 2012)

8. Exhibit HR-13, Tab 274: Memorandum of Understanding for the Funding of Child

Protection Services for Indian Children, between Her Majesty the Queen in right of

Canada and Her Majesty the Queen in right of the province of British Columbia (28

March, 1996)

9. Exhibit HR-13, Tab 305: Funding Agreement, between Her Majesty the Queen in

Right of Canada and the Government of Yukon (March 23, 2012)

10. Exhibit HR-4, Tab 38: Fact Sheet – First Nations Child and Family Services

(October 2006), previously online: Indian and Northern Affairs Canada

<http://www.ainc-inac.gc.ca/pr/info/fnsocec/fncfs_e.html>

11. Exhibit HR-13, Tab 285: Indian and Northern Affairs Canada, First Nations Child

and Family Services British Columbia Transition Plan (Decision by Assistant

Deputy Minister – ESDPP) by Megan Reiter, Barbara D’Amico & Steven Singer

(March 16, 2011)

173

12. Exhibit HR-15, Tab 404: Indian and Northern Affairs Canada, Reform of the

FNCFS Program in Quebec (Information for the Deputy Minister) by Rosalee

LaPlante & Catherine Hudon (July 7, 2008)

13. Exhibit HR-1, Tab 4: John Loxley, Fred Wien and Cindy Blackstock, Bridging

Econometrics and First Nations Child and Family Service Agency Funding: Phase

One Report, a summary of research needed to explore three funding models for

First Nations child welfare agencies (Vancouver: First Nations Child and Family

Caring Society of Canada, 2004)

14. Exhibit HR-4, Tab 32: Indian and Northern Affairs Canada, Evaluation of the First

Nations Child and Family Services Program (Departmental Audit and Evaluation

Branch, March 2007)

15. Exhibit HR-1, Tab 5: Dr. Cindy Blackstock et al., Wen:De We Are Coming to the

Light of Day (Ottawa: First Nations Child and Family Caring Society, 2005)

16. Exhibit HR-1, Tab 6: John Loxley et al., Wen:De The Journey Continues (Ottawa:

First Nations Child and Family Caring Society, 2005)

17. Exhibit HR-3, Tab 11: Auditor General of Canada, May 2008 Report of the Auditor

General of Canada to the House of Commons, Chapter 4, First Nations Child and

Family Services Program – Indian and Northern Affairs Canada (Ottawa: Minister of

Public Works and Government Services Canada, 2008)

18. Exhibit HR-3, Tab 15: House of Commons Report of the Standing Committee on

Public Accounts, Chapter 4, First Nations Child and Family Services Program –

Indian and Northern Affairs Canada of the May 2008 Report of the Auditor General

(Ottawa: Communication Canada-Publishing, March 2009, 40

Parliament, 2

session)

19. Exhibit HR-3, Tab 16: Government of Canada Response to the Report of the

Standing Committee on Public Accounts on Chapter 4, First Nations Child and

Family Services Program – Indian and Northern Affairs Canada of the May 2008

Report of the Auditor General (Presented to the House of Commons on August 19,

2009) online: Parliament of Canada

<http://www.parl.gc.ca/CommitteeBusiness/ReportsResponses.aspx>

20. Exhibit HR-5, Tab 53: Auditor General of Canada, 2011 Status Report of the

Auditor General of Canada to the House of Commons, Chapter 4, Programs for

First Nations on Reserves (Ottawa: Minister of Public Works and Government

Services Canada, 2011)

21. Exhibit HR-4, Tab 45: House of Commons Report of the Standing Committee on

Public Accounts, Chapter 4, Programs for First Nations on Reserves, of the 2011

Status Report of the Auditor General of Canada (Ottawa: Public Works and

Government Services Canada, February 2012, 41

Parliament, 1

session)

174

22. Exhibit HR-5, Tab 54: Government Response to the Report of the Standing

Committee on Public Accounts on Chapter 4, Programs for First Nations on

Reserves, of the 2011 Status Report of the Auditor General of Canada (Presented

to the House of Commons on June 5, 2012) online: Parliament of Canada

<http://www.parl.gc.ca/CommitteeBusiness/ReportsResponses.aspx>

23. Exhibit HR-11, Tab 239: Indian and Northern Affairs Canada, Strategic Direction

and Policy Directorate, Ontario Region, Discussion Paper: 1965 Agreement

Overview (November 2007)

24. Exhibit HR-11, Tab 21: Commission to Promote Sustainable Child Welfare,

Discussion Paper: Aboriginal Child Welfare in Ontario (July 2011)

25. Exhibit HR-14, Tab 362: Letter from Mary Anne Chambers, Minster of Children

and Youth Services, to John Duncan, Minister of Indian and Norther Affairs Canada

(February 23, 2007)

26. Exhibit HR-11, Tab 222: Letter from Laurel Broten, Minster of Children and Youth,

and Grand Chief Phillips, Chiefs of Ontario, to John Duncan, Minister of Indian and

Norther Affairs Canada (March 25, 2011)

27. Exhibit HR-11, Tab 223: Letter from John Duncan, Minister of Indian and Norther

Affairs Canada, to Laurel Broten, Minster of Children and Youth, and Grand Chief

Phillips, Chiefs of Ontario (n.d. July 7, 2011?)

28. Exhibit HR-11, Tab 224: Department of Indian Affairs and Northern Development

Canada, Abinoojii Mental Health Services Mandate, Information for Regional

Director General and Assistant Reginal Directors General prepared by Nicole

Anthony (April 1, 2011)

29. Exhibit HR-11, Tab 209: Ontario Association of Children’s Aid Societies, Child

Welfare Report (2012)

30. Exhibit HR-13, Tab 281: Letter from Glen Foulger, Revenue Manager, and Robert

Parenteau, Director of Operations for Aboriginal Regional Support Services,

Ministry of Children and Family Development, British Columbia, to Linda Stiller,

Manager of Inter-Governmental Affairs, Indian and Northern Affairs Canada (June

22, 2007)

31. Exhibit HR-14, Tab 353: Indian and Northern Affairs Canada, First Nations Child

and Family Services (FNCFS), presentation to Policy Committee (April 12, 2005)

32. Exhibit HR-6, Tab 64: Indian and Northern Affairs Canada, First Nations Child and

Family Services (FNCFS) Q’s and A’s (n.d.)

33. Exhibit HR-13, Tab 330: Indian and Northern Affairs Canada, Explanations on

Expenditures of Social Development Programs (n.d.)

34. Exhibit HR-14, Tab 354: Indian and Northern Affairs Canada, Social Programs,

presentation (February 7, 2006)

175

35. Exhibit HR-6, Tab 81: Indian and Northern Affairs Canada, First Nation Child and

Family Services: Putting Children and Families First in Alberta, presentation [n.d.]

36. Exhibit HR-3, Tab 17: Letter from Micheal Wernick, Deputy Minister, Indian and

Northern Affairs Canada, to Bruce Stanton, Chair of the Standing Committee on

Aboriginal Affairs and Northern Development (11 September 2009)

37. Exhibit HR-5, Tab 48: Indian and Northern Affairs Canada, Final Report:

Implementation Evaluation of the Enhanced Prevention Focused Approach in

Alberta for the First Nations Child and Family Services Program (Evaluation,

Performance Measurement and Review Branch, September 2010)

38. Exhibit HR-12, Tab 247: Aboriginal Affairs and Northern Development Canada,

Final Report: Implementation Evaluation of the Enhanced Focused Approach in

Saskatchewan and Nova Scotia for the First Nations Child and Family Services

Program (Evaluation, Performance Measurement and Review Branch, November

23, 2012)

39. Exhibit HR-9, Tab 146: Aboriginal Affairs and Northern Development Canada, Key

Findings: Implementation Evaluation of the Enhanced Prevention Focused

Approach in Saskatchewan and Nova Scotia, presentation (April 27, 2012)

40. Exhibit HR-12, Tab 248: Aboriginal Affairs and Northern Development Canada,

First Nations Child and Family Services Program (FNCFS) The Way Forward,

presentation by Odette Johnson, Director of the Children and Family Services

Directorate of AANDC to Françoise Ducros, Assistant Deputy Minister, ESDPPS

(August 29, 2012)

41. Exhibit HR-13, Tab 288: Aboriginal Affairs and Northern Development Canada,

Renewal of the First Nations Child and Family Services Program, presentation by

Sheilagh Murphy, Director General, Social Policy and Programs Branch, to DGPRC

(October 31, 2012)

42. Exhibit HR-13, Tab 289: Aboriginal Affairs and Northern Development Canada,

Renewal of the First Nations Child and Family Services Program, presentation by

Sheilagh Murphy, Director General, Social Policy and Programs Branch, to DGPRC

(November 2, 2012)

43. Exhibit R-14, Tab 85: Aboriginal Affairs and Northern Development Canada,

British Columbia First Nations Enhanced Prevention Services Model and

Accountability Framework, working draft (December 19, 2013)

44. Exhibit HR-14, Tab 351: Indian and Northern Affairs Canada, Comparability of

Provincial and INAC Social Programs Funding, attachment to an email sent by

Serge Menard, Policy Analyst, Social Policy and Programs Branch (October 16,

2008)

176

45. Exhibit HR-3, Tab 20: Private Members’ Business, 39

Parliament, 2

Session,

Hansard, 012 (October 31, 2007); and, Vote No. 27, 39

Parliament, 2

Session,

Sitting No. 36 (December 12, 2007)

46. Exhibit R-14, Tab 41: Memorandum of Understanding on the Federal Response to

Jordan’s Principle, between Indian and Northern Affairs Canada and Health

Canada (June 24, 2009)

47. Exhibit HR-11, Tab 235: Memorandum of Understanding on the Federal Response

to Jordan’s Principle, between Aboriginal Affairs and Northern Development

Canada and Health Canada (January 2013)

48. Exhibit R-14, Tab 39: Health Canada, Update on Jordan’s Principle: The Federal

Government Response, presentation (June 2011)

49. Exhibit HR-15, Tab 420: Jordan’s Principle Case Conferencing to Case Resolution

Federal/Provincial Intake Form (November 21, 2012)

50. Exhibit R-14, Tab 54: Federal Focal Points Tracking Tool Reference Chart –

Manitoba Region (January 2013)

51. Exhibit HR-6, Tab 78: Indian and Northern Affairs Canada, INAC and Health

Canada First Nation Programs: Gaps in Service Delivery to First Nation Children

and Families in BC Region, attachment to an email sent by Bill Zaharoff, Director

of Intergovernmental Affairs, British Columbia Region (June 3, 2009)

52. Exhibit HR-3, Tab 10: Government of Canada, Statement of Apology - to former

students of Indian Residential Schools (June 11, 2008)

53. Exhibit HR-14, Tab 340: Amy Bombay, Kim Matheson and Hymie Anisman, “The

Impact of Stressors on Second Generation Indian Residential Schools Survivors”

(2011), 48(4) Transcultural Psychiatry 367

Canadian Human Rights Tribunal

Parties of Record

Tribunal File: T1340/7008

Style of Cause: First Nations Child and Family Caring Society of Canada et al. v.

Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada)

Decision of the Tribunal Dated: January 26, 2016

Dates and Place of Hearing: February 25, 26, 27 and 28, 2013;

March 1, 2013;

April 2, 3, 4, 8 and 9, 2013;

May 13, 14, 21 and 22, 2013;

July 15, 16, 17, 19, 22 and 24, 2013;

August 7, 12, 28, 29 and 30, 2013;

September 3, 4, 5, 6, 11, 12, 23, 24, 25 and 26, 2013;

October 28, 29 and 30, 2013;

November 6, 2013;

December 5, 9 and 10, 2013;

January 9, 10, 13, 14 and 15, 2014;

February 10, 11, 12 and 13, 2014;

March 17, 18, 19 and 20, 2014;

April 2, 3, 4 and 30, 2014;

May 1, 7, 8, 14, 15, 28, 29 and 30, 2014;

October 20, 21, 22, 23 and 24, 2014

Ottawa, Ontario

Appearances:

Sébastien Grammond, Robert Grant, David Taylor, Anne Levesque, Sarah Clarke,

Michael Sabet, Paul Champ and Yavar Hameed, counsel for the First Nations Child and

Family Caring Society of Canada, the Complainant

Stuart Wuttke and David Nahwegahbow, counsel for the Assembly of First Nations, the

Complainant

Daniel Poulin, Philippe Dufresne, Sarah Pentney and Samar Musallam, counsel for the

Canadian Human Rights Commission

Jonathan Tarlton, Melissa Chan, Patricia MacPhee, Nicole Arsenault, Ainslie Harvey,

Michelle Casavant and Terry McCormick, counsel for the Respondent

Michael Sherry, counsel for the Chiefs of Ontario, Interested Party

Justin Safayeni, counsel for Amnesty International, Interested Party