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

Case Summary

R.R., an Afro-Indigenous mother, brought a complaint against the Vancouver Aboriginal Child and Family Services Society (VACFSS) under the Human Rights Code for discrimination on the grounds of race, colour, ancestry, and mental disability. In 2016, VACFSS apprehended R.R.’s four children, denying R.R. custody and restricting her access to her children. R.R.’s complaint was about VACFSS’s decisions to deny and restrict access from April 2017 to December 2018. R.R. says these decisions were made based on prejudicial assumptions about her as an Afro-Indigenous mother and her ability to parent while living with a mental health disability. R.R. says VACFSS relied on stereotypes about intergenerational residential school trauma, rather than assessing her ability to parent on her own merits. The BC Human Rights Tribunal (Tribunal) also considered whether VACFSS failed to accommodate R.R.’s cultural and disability-related needs with appropriate support.

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

In 2022, the BC Human Rights Tribunal ruled that VACFSS discriminated against R.R. However, following a judicial review, the BC Supreme Court overturned the Tribunal’s decision. The BC Supreme Court found that while the Tribunal has jurisdiction to consider allegations of discrimination in the family policing context, there were legal and procedural errors that required setting aside the decision of the Tribunal. R.R. has appealed the BC Supreme Court’s judicial review decision to the BC Court of Appeal.

BC Human Rights Tribunal (2020) – R.R. v VACFSS

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

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

BC Supreme Court – Judicial Review (2023) – VACFSS v R.R.

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

The judicial review centered around the power of the Tribunal to consider discriminatory practices by family policing agencies (i.e., the scope of the Tribunal’s jurisdiction). This decision impacted the ability of parents and caregivers engaged in the family policing system to seek redress under the Human Rights Code. West Coast LEAF intervened in this case to ensure that the BC Supreme Court takes into consideration the historical and social context of the family policing system, including colonization, systemic discrimination, racism, and misogyny. We asked the BC Supreme Court to consider the overlapping systems of discrimination that operate to disadvantage Indigenous families when it determines the scope of the Tribunal’s role in matters concerning the family policing system.

On January 22, 2024, the BC Supreme Court overturned the Tribunal’s decision and sent it back to the Tribunal for reconsideration. While the BC Supreme Court rightly rejected VACFSS’s argument that the Tribunal lacked jurisdiction over family policing matters, we are concerned about the downplaying of the role of systemic and historic context in the analysis of individual complaints of discrimination. Furthermore, the court downplayed the negative impact that discrimination against parents can have on their children.

BC Court of Appeal (2024) – R.R. v VACFSS

West Coast LEAF has been granted intervener status in this appeal, where the BC Supreme Court’s decision is being reviewed. We will provide our perspective on the importance of the Human Rights Tribunal’s jurisdiction over family policing proceedings. Our argument will draw on the social and historical context of the family policing system and the inherent power imbalance between MCFD workers and parents/caregivers.

Building on prior work advocating for shifts in the family policing system, we will provide insights on the discriminatory impacts of the tools and practices used by MCFD workers. We will also argue that the rights of children do not need to be pitted against the rights of parents, especially in the context of unjustifiable discrimination.

Next steps

R.R.’s appeal will be heard at the BC Court of Appeal from December 11 to 13, 2024.

Case Documents

Application for Leave to Intervene – BC Human Rights Tribunal

Application for Leave to Intervene – BC Supreme Court

Read More

• Release: BC Human Rights Tribunal rules family policing system discriminated against Indigenous mother
• Release: BC Supreme Court to review Human Rights Tribunal’s decision on discriminatory practice by child welfare agency
• BC Supreme Court confirms Human Rights Tribunal jurisdiction, but sends Indigenous mother back for a rehearing