Canadian Human  
Rights Tribunal  
Tribunal canadien  
des droits de la personne  
Citation: 2022 CHRT 8  
Date: March 24, 2022  
File No.: T1340/7008  
Between:  
First Nations Child and Family Caring Society of Canada  
- and -  
Assembly of First Nations  
Complainants  
Commission  
- and -  
Canadian Human Rights Commission  
- and -  
Attorney General of Canada  
(Representing the Minister of Indigenous and Northern Affairs Canada)  
Respondent  
- and -  
Chiefs of Ontario  
- and -  
Amnesty International  
- and -  
Nishnawbe Aski Nation  
Interested parties  
Ruling  
Members:  
Sophie Marchildon  
Edward P. Lustig  
Contents  
I.  
Context......................................................................................................................1  
II.  
III.  
Requested orders on consent...................................................................................6  
Grounds for the motion and Tribunal findings...........................................................9  
A.  
B.  
Grounds for the motion ..................................................................................9  
Tribunal findings...........................................................................................14  
(i)  
Performance Informed Budgeting.....................................................15  
Fund Actual Cost Post-Majority Care ...............................................18  
(ii)  
(iii)  
High Needs Jordan’s Principle Recipients past the Age of  
Majority .............................................................................................25  
(iv)  
(v)  
Fund Needs Assessment and Long Term Funding Research..........29  
Timelines for Supporting Research Data Requests..........................33  
ISC Cultural Competency and Anti-Discrimination Plan...................33  
(vi)  
(vii) Amendment to 2018 CHRT 4 ...........................................................39  
(viii) Amendment to 2021 CHRT 12 .........................................................39  
(ix)  
Establish the End Date for Compensation........................................48  
IV.  
V.  
Legal Framework ....................................................................................................53  
Final remarks ..........................................................................................................60  
Panel Chair’s remarks.............................................................................................61  
Orders.....................................................................................................................61  
VI.  
VII.  
VIII. Retention of Jurisdiction..........................................................................................63  
I.  
Context  
[1]  
This ruling concerns a March 4, 2022, consent order request made by the parties to  
these proceedings to expand Jordan’s Principle services orders to youth from 18 to 25 years  
of age and for the application of the FNCFS program to youth ages 18 to 25 that age out of  
care. This consent order also provides for increased funding for prevention services for  
children, youth and families. This consent order request addresses a specific timeline for the  
implementation of the above and to set March 31, 2022 as the end date for eligibility for  
compensation for the victims of the discrimination found by the Tribunal. Finally, the parties  
made a number of other consent order requests. This will be further detailed below.  
[2]  
In 2016, the Tribunal released its 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), 2016 CHRT 2 [Merit Decision] and found that this case is about children and 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. The Tribunal found that Canada racially discriminated against First Nations  
children on reserve and in the Yukon in a systemic way not only by underfunding the FNCFS  
Program but also in the manner that it designed, managed and controlled it. One of the worst  
harms found by the Tribunal was the FNCFS Program creating incentives to remove First  
Nations from their homes, families and communities. Another major harm to First Nations  
children was that zero cases were approved under Jordan’s Principle given the narrow  
interpretation and restrictive eligibility criteria developed by Canada. The Tribunal found that  
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 children. The Tribunal  
ordered Canada to cease the discriminatory practice, take measures to redress and prevent  
it from reoccurring, and reform the FNCFS Program and the 1965 Agreement in Ontario to  
reflect the findings in the Merit Decision. The Tribunal determined it would proceed in phases  
for immediate, mid-term and long-term relief so as to allow immediate change followed by  
adjustments and finally, sustainable long-term relief informed by data collection, new studies  
and best practices as identified by First Nations experts, the specific needs of First Nations  
 
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communities and of First Nations Agencies, the National Advisory Committee on child and  
family services reform and the parties.  
[3]  
The Tribunal also ordered Canada 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. Jordan’s Principle orders and the substantive equality goal were further  
detailed in subsequent rulings. In 2020 CHRT 20 the Tribunal stated that:  
[89] Jordan’s Principle is a human rights principle grounded in substantive  
equality. The criterion included in the Tribunal’s definition in 2017 CHRT 14 of  
providing services “above normative standard” furthers substantive equality  
for First Nations children in focusing on their specific needs which includes  
accounting for intergenerational trauma and other important considerations  
resulting from the discrimination found in the Merit Decision and other  
disadvantages such as historical disadvantage they may face. The definition  
and orders account for First Nations’ specific needs and unique  
circumstances. Jordan’s Principle is meant to meet Canada’s positive  
domestic and international obligations towards First Nations children under  
the CHRA, the Charter, the Convention on the Rights of the Child and the  
UNDRIP to name a few. Moreover, the Panel relying on the evidentiary record  
found that it is the most expeditious mechanism currently in place to start  
eliminating discrimination found in this case and experienced by First Nations  
children while the National Program is being reformed. Moreover, this  
especially given its substantive equality objective which also accounts for  
intersectionality aspects of the discrimination in all government services  
affecting First Nations children and families. Substantive equality is both a  
right and a remedy in this case: a right that is owed to First Nations children  
as a constant and a sustainable remedy to address the discrimination and  
prevent its reoccurrence. This falls well within the scope of this claim.  
[4]  
Consequently, the Tribunal determined all the above need to be adequately funded.  
This means in a meaningful and sustainable manner so as to eliminate the systemic  
discrimination and prevent it from reoccurring.  
[5]  
Furthermore, recently, the Quebec Court of Appeal in Renvoi à la Cour d'appel du  
Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières  
Nations, des Inuits et des Métis, 2022 QCCA 185, recognized the Tribunal’s concern that  
funding only formed part of the Preamble and did not create an obligation for sustainable  
funding under An Act Respecting First Nations, Inuit and Metis children, youth and families,  
SC 2019, c 24 (see paras. 271-272, 274). The Court at para. 562 states: Ainsi, une nouvelle  
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approche s’impose, ayant pour piliers la collaboration fédérale-provinciale et la prise en  
compte des peuples autochtones en tant quacteurs politiques et producteurs de droit. Cette  
approche doit prévaloir tant pour ce qui est des initiatives législatives que de leur mise en  
œuvre, y compris leur financement(emphasis ours).  
[6]  
The Panel is pleased with this helpful finding that will guide governments in the future.  
Moreover, as part of this motion, in her affidavit dated March 4, 2022, Dr. Cindy Blackstock  
asserts that:  
25. [she] is concerned that First Nations affirming their jurisdiction under An  
Act Respecting First Nations, Métis and Inuit children, youth and families may  
not benefit from the Tribunal orders, including this consent order. Canada has  
taken the position, and has repeatedly advised her, that it does not have  
obligations under the Tribunal’s orders to First Nations affirming their  
jurisdiction under An Act Respecting First Nations, Métis and Inuit children,  
youth and families. Dr. Blackstock affirms the Agreement in Principle reached  
on December 31, 2021(AIP), also excludes such First Nations. However, the  
AIP does state that these First Nations will not receive less funding than they  
would have received under the Reformed CFS Funding Approach for the  
services in question.  
[7]  
[8]  
Dr. Blackstock adds that:  
25. … Respecting the right of First Nations to be self-determining, I believe  
that First Nations ought to have the right to make a free, prior and informed  
choice about which funding approaches, policies and practices, including  
those arising from the Tribunal proceedings, ought to apply.  
The Tribunal agrees and is satisfied the AIP ensures First Nations affirming their  
jurisdiction under An Act Respecting First Nations, Métis and Inuit children, youth and  
families will not receive less funding than they would have received under the reformed First  
Nations Child and Family Services [FNCFS] Funding Approach for the services in question.  
[9]  
This is significant to ensure that First Nations do not have to face the unacceptable  
choice between adequate and sustainable funding under the reformed FNCFS Program or  
the exercise of their inherent right to self-government to develop and offer their own child  
and family services with the uncertainty of adequate sustainable funding especially upon the  
date of renewal of the agreements between the First Nation and Canada.  
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[10] The Panel agrees with Ms. Stephanie Wellman from the Assembly of First Nations  
(AFN) that the focus of this case is not on the Act Respecting First Nations, Métis and Inuit  
children, youth and families and that “[i]t is not for Canada, the AFN, this Tribunal or any  
other party to these proceedings to speak to the manner in which self-determining peoples  
opt to exercise their jurisdiction.” (March 7, 2022 Affidavit, para. 80).  
[11] This Tribunal’s case is also about children and families who are also rights holders  
and deserve to have their human rights respected. The Tribunal’s role is to eliminate the  
discrimination found and prevent the same or similar practices to reoccur.  
[12] The Tribunal cannot force First Nations that are not part of these proceedings to do  
anything. However, the Tribunal has jurisdiction over Canada as per the Canadian Human  
Rights Act, RSC 1985 c H-6 [CHRA] to ensure that discriminatory practices adversely  
impacting First Nations children and families are eliminated and do not resurface in a new  
form in the long-term.  
[13] The Tribunal made findings in the Merit Decision where Canada had concluded a  
funding agreement with the Attawapiskat First Nation:  
[122] 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].  
(emphasis added).  
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[14] When the Tribunal expressed its concerns about sustainable and adequate funding  
not being guaranteed under the Act Respecting First Nations, Métis and Inuit children, youth  
and families, it did so with the above in mind and not in any way to hinder First Nations’  
inherent rights that this Panel has recognized on multiple occasions.  
[15] The Tribunal’s focus is on Canada not repeating its past discriminatory practices or  
creating new ones that would harm First Nations children, families and Nations.  
[16] Finally on this point, the Tribunal is pleased to hear that the AFN sought, and  
achieved, recognition within the AIP that such First Nations exercising their jurisdiction would  
receive no less than the funding provided under the eventual reformed FNCFS Program. In  
her March 4, 2022, affidavit Dr. Valerie Gideon, Associate Deputy Minister of ISC, asserts  
that:  
15. [t]he Agreement-in-Principle notes that First Nations that have chosen to  
avail themselves of the framework offered by An Act respecting First Nations,  
Inuit and Métis children, youth and families … to facilitate the exercise of their  
jurisdiction will “not receive less funding than they would have received under  
the reformed FNCFS Funding Approach for the services for which they have  
assumed jurisdiction.” ISC [Indigenous Service Canada] will ensure that  
enhancements to the FNCFS Program, including those sought through this  
motion, are made available to those First Nations retroactive to April 1, 2022.  
[17] Dr. Valerie Gideon further affirms that:  
16. … ISC and the Assembly of First Nations will discuss how to adjust the  
[Act respecting First Nations, Inuit and Métis children, youth and families’]  
interim funding framework to reflect these enhancements. By April 1, ISC will  
also have reached out to the two Indigenous Governing Bodies who have  
signed or are on the cusp of signing coordination and fiscal relationship  
agreements. It will propose to discuss the enhancements available to those  
two entities. Regardless of the time required to have those discussions, ISC  
will make retroactive to April 1, 2022, any adjustments to the Indigenous  
Governing Bodies’ agreements.  
[18] This is extremely positive news and with the understanding that this commitment is  
reflective of what will also be included in the Final Settlement agreement for long-term reform  
addresses the Tribunal’s concerns on this point.  
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II.  
Requested orders on consent  
[19] In particular, this consent motion is for the following orders, as agreed to by the  
parties on December 31, 2021:  
1. Reform to the First Nations Child and Family Services Program  
(“FNCFS Program”) shall reflect a performance-informed budgeting  
approach, with consideration of the well-being indicators defined in the  
Institute for Fiscal Studies and Democracy (“IFSD”) Measuring to  
Thrive framework.  
2. Canada shall fund at actual cost post-majority care to youth ageing out  
of care and young adults who were formerly in care up to and including  
the age of 25 across all provinces and territories (“post-majority care”).  
This funding shall be accessible through the actuals process for  
maintenance and protection reimbursed at the actual cost to the First  
Nations authorized post-majority service provider and shall be  
available until March 31, 2023. After this time, funding for post-majority  
care will be made available through the reformed FNCFS Program’s  
funding formulas, policies, procedures and agreements in an  
evidence- informed way agreed to by the Parties.  
3. Given Canada’s commitment to non-discrimination and substantive  
equality, Canada shall assess the resources required to provide  
assistance to families and/or young adults in identifying supports for  
needed services of high needs Jordan’s Principle recipients past the  
age of majority (as defined in the applicable First Nations or  
provincial/territorial statute). Canada shall consult with the Parties  
within sixty (60) days of the order to discuss the scope and scale of  
these transition supports and how such funding capacity can be  
incorporated into the Jordan’s Principle long-term reform.  
4. Canada shall fund the following research through the Institute for Fiscal  
Studies and Democracy (“IFSD”):  
a. the IFSD Phase 3 Proposal (including stage 5): Implementing a  
well-being focused approach to First Nations child and family  
services through performance budgeting, dated July 22, 2021;  
b. the IFSD needs assessment regarding the real needs of First  
Nations not served by an agency to identify their needs as they  
relate to prevention, operations and to further identify remedies  
to gaps that need to be closed as part of long-term reform (the  
“Non-Agency First Nations Needs Assessment”);  
 
7
c. the IFSD assessment regarding available data on the use of  
Jordan’s Principle to inform a future cost assessment of  
Canada’s implementation of Jordan’s Principle and program  
reform (the “Jordan’s Principle Data Needs Assessment”); and  
d. upon completion of the Jordan’s Principle Data Assessment,  
the IFSD needs assessment regarding a long-term funding  
approach for Jordan’s Principle, including but not limited to  
identifying and addressing formal equality gaps, in keeping with  
the Tribunal’s rulings, including but not limited to 2016 CHRT 2,  
2017 CHRT 35, 2020 CHRT 20 and 2020 CHRT 36 (the  
“Jordan’s Principle Long Term Funding Approach Research”).  
5. Canada shall fulfil all IFSD data requests within ten (10) business days  
or propose reasonable alternative timelines required to protect privacy.  
6. a. Canada shall consult with the Parties and implement the mandatory  
cultural competency training and performance commitments for  
employees within Indigenous Services Canada. b. Canada shall also  
work with the Parties to establish an expert advisory committee within  
sixty (60) days of this order to develop and oversee the implementation  
of an evidence- informed work plan to prevent the recurrence of  
discrimination. Canada shall take reasonable measures to begin  
implementing the work plan.  
7. Pursuant to paragraph 413(3) of 2018 CHRT 4, adding the following  
paragraph to the Tribunal’s order in 2018 CHRT 4:  
[421.1]: In amendment to paragraphs 410, 411, 420 and 421  
Canada shall, as of April 1, 2022, fund prevention/least  
disruptive measures at $2500 per person resident on reserve  
and in the Yukon in total prevention funding in advance of the  
complete reform of the FNCFS Program funding formulas,  
policies, procedures and agreements. Canada shall fund the  
$2500 on an ongoing basis adjusted annually based on inflation  
and population until the reformed FNCFS Program is fully  
implemented. This amount will provide a baseline for the  
prevention element in the reformed FNCFS Program pursuant  
to paragraph 1 of the Consent Order. Flexibility will be provided  
on the implementation for First Nations governments and  
FNCFS agencies not ready on the start date, which will require  
more time due to exceptional circumstances that will be further  
defined with the parties. Funds will be directed to the First  
Nations and/or First Nations child and family service  
providers(s) responsible for the delivery of prevention services.  
These funds shall be eligible to be carried forward by the First  
Nation and/or First Nations child and family service providers(s).  
8
8. Pursuant to 2021 CHRT 12 at paragraph 42(5), adding the following  
paragraph to the Tribunal’s order in 2021 CHRT 12:  
[42.1] In amendment to paragraph 42(1), Canada shall, as of  
April 1, 2022, fund prevention/least disruptive measures for  
non-Agency First Nations (as defined in 2021 CHRT 12) at  
$2500 per person resident on reserve and in the Yukon, on the  
same terms as outlined in 2018 CHRT 4 at paragraph 421.1  
with respect to FNCFS Agencies.  
9. Pursuant to 2019 CHRT 39 at paragraphs 245, 248, 249 and 254,  
establish March 31, 2022, as the end date for compensation for  
removed First Nations children and their parents/caregiving  
grandparents.  
[20] The wording for the seventh proposed order was modified in response to questions  
raised by the Panel. The Panel believed that given the procedural history in this case, the  
requested order should be clarified, to avoid future disagreements between the parties on  
the interpretation of the order. In particular, on March 11, 2022, the Tribunal wrote to the  
parties seeking clarification. The Panel’s main question related to the $2,500 funding per  
person resident on reserve and in the Yukon for prevention services in advance of the  
complete reform of the FNCFS Program funding formulas, policies, procedures and  
agreements.  
[21] The Panel requested clarity in the case where reform is delayed and the prevention  
funds that are carried over have all been used. The Panel believed this eventuality should  
be reflected in the terms of the requested order to ensure that First Nations communities  
and First Nations agencies would have sufficient prevention funds while reform is  
completed.  
[22] In response to the Panel’s questions, the Parties agreed to add the following wording  
to the requested order:  
Canada shall fund the $2500 on an ongoing basis adjusted annually based  
on inflation and population until the reformed FNCFS Program is fully  
implemented. This amount will provide a baseline for the prevention element  
in the reformed FNCFS Program pursuant to paragraph 1 of the Consent  
Order. Flexibility will be provided on the implementation for First Nations  
governments and FNCFS agencies not ready on the start date, which will  
9
require more time due to exceptional circumstances that will be further defined  
with the parties.  
[23] The Panel considered this amended wording proposed by the Parties in its analysis.  
III.  
A.  
Grounds for the motion and Tribunal findings  
Grounds for the motion  
[24] The Caring Society, the AFN and Canada made joint submissions on the grounds  
for this motion and filed separate affidavits along with untested evidence in support of this  
motion. The Chiefs of Ontario (COO), the Nishnawbe Aski Nation (NAN), the Commission  
and Amnesty International filed separate letters with the Tribunal indicating their consent to  
the motion. The Tribunal has considered all the materials and submissions filed by the  
parties. In the interest of conciseness, only some will be reproduced below:  
11. As part of the Actuals Decision [2018 CHRT 4], the Tribunal ordered  
Canada, in consultation with the Parties, to undertake a cost analysis of the  
real needs of FNCFS Agencies, including small agencies, and to guide a data  
collection process (paragraphs 408, 418 and 421). The Caring Society and  
the AFN requested that the Institute of Fiscal Studies and Democracy (the  
“IFSD”) take on the research outlined by the Tribunal, with the AFN acting as  
the project contract holder. The National Advisory Committee on First Nations  
Child and Family Services (the “NAC”) provided directional and strategic  
support.  
12. In April 2018, the IFSD began its work on the following: (a) developing  
reliable data collection, analysis, and reporting methodology for analyzing the  
needs of FNCFS Agencies, in alignment with the Tribunal’s rulings; (b)  
providing technical expertise to analyze agency needs, providing strategic  
advice on how best to monitor and respond to actual agency needs from fiscal  
and governance perspectives; and (c) analyzing the needs assessment  
completed by FNCFS Agencies and communities.  
13. On December 15, 2018, the IFSD released its first report, Enabling First  
Nations Children to Thrive (the “IFSD Phase One Report”). The IFSD Phase  
One Report defined and outlined the existing funding gaps in the FNCFS  
Program and the ongoing hardships facing First Nations children, youth, and  
their families: gaps in funding for prevention, poverty, information technology,  
and capital were identified as key components to the ongoing disparity.  
   
10  
14. Following the release of the IFSD Phase One Report, the Caring Society  
and the AFN asked the IFSD to define a funding approach and performance  
measurement framework for First Nations child and family services, with  
funding support from Indigenous Services Canada. The purpose of this  
second phase was to present a funding structure; a means of developing  
evidence to understand the well-being of children, families, and communities;  
and a range of scenarios to cost the proposed approach. Canada agreed to  
fund this second phase on May 13, 2019.  
15. On July 31, 2020, IFSD released its second report, Funding First Nations  
child and family services (FNCFS): A performance budget approach to well-  
being (the “IFSD Phase Two Report”). Based on 2019/2020 fiscal data, the  
IFSD Phase Two Report proposes a performance framework called  
“Measuring to Thrive” and a needs-based block funding approach based on  
indicators of well-being, bottom-up budgeting complemented by need and  
performance components, as well as control exercised by First Nations in the  
development and delivery of child well-being services.  
16. The IFSD Phase Two Report outlines a funding approach designed as a  
block transferred budget with components addressing gaps in need, including  
prevention, poverty, geography, information technology and capital, with other  
supplements for the shift to a result-focused approach that addresses the real  
needs of First Nations children, youth, families, and First Nations. Among the  
various components costed by the IFSD, the funding approach recommends  
that prevention be funded (at the upper end) at $2500 per capita, based on  
community population, automatically adjusted based on inflation and  
population.  
17. On July 22, 2021, the IFSD submitted its response to the AFN’s request  
for proposal for Research for the Modeling of a Wellbeing Focused Approach  
for First Nations Child and Family Services Through Performance Budgeting  
(“IFSD Phase Three”). IFSD Phase Three is focused on modeling the funding  
approach outlined in the IFSD Phase Two Report in order to build capacity  
and an enhanced bottom-up planning framework for FNCFS Agencies and  
First Nations, while building confidence among stakeholders. Canada agreed  
to fund the entire proposal on December 31, 2021.  
18. On April 2, 2019, the AFN proffered evidence regarding the many  
challenges youth in care face once they age out of care. On November 22,  
2019, Youth in Care Canada released Justice, Equity and Culture: the First-  
Ever YICC Gathering of First Nations Youth Advisors (the “2019 Youth in Care  
Report”), which was tendered in evidence and referenced in 2020 CHRT 7  
paras. 30-32. In December 2021, Youth in Care Canada released Children  
Back, Land Back: A Follow-Up Report for First Nations Youth in Care Advisors  
(the “2021 Youth in Care Report”). The evidence, including evidence put  
forward during the hearing on the merits, underscores the need for young  
people to be involved in matters affecting them on an ongoing basis as well  
11  
as services and supports to assist youth in care and former youth in care as  
they transition to adulthood.  
ISC’s inclusion of post-majority care in the FNCFS Program  
19. Prior to March 2020, First Nations children were no longer eligible for  
services pursuant to the FNCFS Program when they reached the age of  
majority in their province or territory of residence.  
20. On March 27, 2020, following discussions at the Consultation Committee  
on Child Welfare (“CCCW”), Canada announced that, as an exceptional  
measure in response to the COVID-19 pandemic, it would temporarily keep  
supports in place for First Nations young adults ageing out of care after  
reaching the age of majority to avoid discharging them from care during the  
pandemic.  
21. In Budget 2021, Canada announced that it would continue to fund post-  
majority supports under the FNCFS Program for First Nations young adults  
for up to two years beyond the point the individual is no longer eligible for child  
and family services, either because they have reached the age of majority, or  
are no longer eligible for extended care services as per the provincial or Yukon  
legislation. The Tribunal has found that many of these young people were  
removed as children unnecessarily due to Canada’s discrimination as found  
by the Tribunal.  
22. The evidence filed in support of this motion (some of which is already  
before the Tribunal) indicates that First Nations youth ageing out of care who  
do not have access to post-majority supports may have higher needs owing  
to the multi-generational trauma of residential schools and hardships arising  
from Canada’s discrimination found by the Tribunal. Youth in care and former  
youth in care are a marginalized group with unique needs that require specific  
supports.  
Canada’s Commitments to Immediate Measures that Redress the  
Ongoing Discrimination  
23. Canada acknowledges that it has the onus to redress the discrimination  
identified by the Tribunal and prevent its recurrence. This consent order is the  
first step on the path to the long-term measures ordered by the Tribunal.  
24. Starting in November 2021, the Parties engaged in settlement discussions  
regarding the long-term reform of the FNCFS Program and Jordan’s Principle.  
The Parties were assisted by the Honourable Murray Sinclair.  
25. On December 31, 2021, the Parties announced that they had reached an  
Agreement-in-Principle on long-term reform. As part of that Agreement-in-  
Principle, the Parties committed to reforming the FNCFS Program by March  
31, 2023, as well as improving compliance with and reforming Jordan’s  
12  
Principle. Also, in the Agreement-in-Principle, the parties have agreed that the  
Reformed CFS Funding Approach will accommodate First Nations and  
FNCFS service providers experiencing exceptional circumstances, to be  
defined in the Final Settlement Agreement, which may require a longer  
transition to the Reformed CFS.  
26. In addition, the terms of the consent order sought in this consent motion  
(see paras 1-9 under “orders sought”) were annexed to the Agreement-in-  
Principle. Following the execution of the Agreement-in-Principle, the Caring  
Society, the AFN, and Canada agreed to seek this order as soon as possible.  
27. While the research and community consultation are not at a sufficient  
stage for complete reform of the FNCFS Program to be implemented, the  
funding of prevention at $2,500 per capita will provide families with supports  
they need and deserve to begin addressing the structural risk factors that  
contribute to the over-representation of First Nations children in care.  
Prevention funding at $2,500 per capita will also provide First Nations and  
FNCFS Agencies with greater resources “up front” (as opposed to through the  
application-based actuals process) and will provide greater funding to First  
Nations without FNCFS Agencies (currently receiving $947 per capita, subject  
to inflation adjustments, pursuant to 2021 CHRT 12).  
28. With respect to Jordan’s Principle, the evidence demonstrates that for  
some high needs First Nations youth and young adults who reach the age of  
majority, the loss of access to Jordan’s Principle is detrimental to them and  
their families. Canada has agreed to assess the resources required to aid  
families and/or young adults in identifying supports for needed services for  
these recipients. Canada shall consult with the Parties within sixty (60) days  
of the order to discuss the scope and scale of these transition supports and  
how such funding capacity can be incorporated into the Jordan’s Principle  
long-term reform.  
29. Canada acknowledges that Indigenous Services Canada (“ISC”) requires  
transformation in order to address the “old mindset” repeatedly identified by  
the Tribunal, which contributed to the discrimination under the FNCFS  
Program and Jordan’s Principle. In response to 2016 CHRT 16 at para 29,  
2018 CHRT 4 at para 154, 2019 CHRT 7 at para 63, 2020 CHRT 15 at para  
84, and 2021 CHRT 41 at para 341, Canada has agreed to consult with the  
Parties and continue the implementation of mandatory cultural competency  
training and performance commitments for employees within ISC, to complete  
work begun through the CCCW. In addition, Canada has agreed to work with  
the Parties to establish an expert advisory committee within sixty (60) days of  
the order to develop and oversee the implementation of an evidence-informed  
work plan to prevent the recurrence of discrimination. Canada has further  
agreed to take reasonable measures to begin implementing the work plan.  
13  
30. Finally, the Parties acknowledge that some questions remain unanswered  
regarding the best path forward for long-term reform. This is particularly the  
case with respect to modeling the IFSD Phase Two Report, assessing the real  
needs of First Nations without FNCFS Agencies, formulating a better long-  
term approach to Jordan’s Principle and reforming ISC to prevent the  
discrimination from recurring. Canada has agreed to provide funding and data  
to enable IFSD to conduct the following research to assist the Parties in  
developing long-term solutions to address the findings of the Tribunal:  
a. IFSD Phase Three;  
b. the Non-Agency First Nations Needs Assessment;  
c. the Jordan’s Principle Data Assessment; and  
d. the Jordan’s Principle Needs Assessment.  
31. To ensure that the work undertaken by the IFSD can be completed in a  
timely manner, Canada is agreeing to fulfill all IFSD data requests within ten  
(10) business days or propose reasonable alternative timelines required to  
protect privacy.  
Based on Canada’s Commitments, the End Date for Compensation  
Under the FNCFS Program is Justified  
32. Based on Canada’s consent to the orders outlined herein, the Parties are  
of the view that the factual basis on which the Compensation Entitlement  
Decision was made will significantly change as of April 1, 2022, due to  
increased amounts of prevention funding being made available to  
communities.  
33. In addition, the provision of post-majority supports to young people ageing  
out of care or young adults who were in care duly considers the multi-  
generational trauma flowing from Canada’s discrimination and enables a  
more holistic child welfare approach. Young people in care and young adults  
from care have long advocated for post-majority supports and this action  
responds to their advocacy.  
34. As a result, the Parties request that the Tribunal set March 31, 2022, as  
the end date for eligibility for compensation under the Compensation  
Entitlement Decision for the particular victims impacted by the discrimination  
in the FNCFS Program identified by the Tribunal in 2016 CHRT 2 and  
subsequent decisions.  
35. This amendment to the Compensation Entitlement Decision will resolve  
one of the issues before the Federal Court of Appeal in Canada’s appeal from  
the Federal Court’s decision upholding the Compensation Entitlement  
Decision.  
36. Should the Parties to the Federal Court class proceedings in Federal Court  
File Nos. T-402-19 and T-1751-21 reach a settlement agreement, Canada  
14  
and the Assembly of First Nations will make submissions to the Tribunal  
regarding the impact of that settlement agreement with respect to the  
Tribunal’s Compensation Entitlement Decision and Compensation Payment  
Decision and any relief requested from the Tribunal in that regard.  
37. The Parties further rely on:  
(a) subsection 91(24) of the Constitution Act, 1867;  
(b) Section 53(2) of the Canadian Human Rights Act, R.S.C.  
1985, c. H-6;  
(c) Rules 1(6), 3(1), and Rule 3(2) of this Tribunal’s Rules of  
Procedure (Proceedings prior to July 11, 2021;  
(d) the Tribunal’s implied jurisdiction to control its own  
processes; and  
(e) such further and other grounds as counsel may advise.  
B.  
Tribunal findings  
[25] Some of the evidence such as the affidavits and some attachments were untested,  
nevertheless the Tribunal may accept such evidence given section 50(3)(c) of the CHRA:  
subject to subsections (4) and (5), authorizes the Tribunal to receive and  
accept any evidence and other information, whether on oath or by affidavit or  
otherwise, that the member or panel sees fit, whether or not that evidence or  
information is or would be admissible in a court of law.  
[26] However, while the evidence can be accepted under this section, the probative value  
will be appreciated by the Panel in weighing the evidence.  
[27] Furthermore, some of the evidence was already tested at the hearing on the merits  
or in subsequent proceedings.  
[28] The Panel has weighed the evidence considering the above.  
[29] Upon consideration, the Panel agrees with the parties’ order requests and will  
address them now in turn.  
 
15  
(i)  
Performance Informed Budgeting  
Order request #1. Reform to the First Nations Child and Family Services  
Program (“FNCFS Program”) shall reflect a performance-informed budgeting  
approach, with consideration of the well-being indicators defined in the  
Institute for Fiscal Studies and Democracy (“IFSD”) Measuring to Thrive  
framework.  
[30] The AFN insisted that discussions on compensation also include a separate track on  
long-term reform. The Panel believes this was instrumental and necessary. Moreover, it is  
in line with the Panel’s approach to remedies in this case and the Panel’s goal to remain  
seized of this case until sustainable long-term reform orders on consent or otherwise have  
been made that will eliminate the systemic racial discrimination found and prevent it from  
reoccurring.  
[31] The AFN submits that Canada advised it was open to negotiations on both  
compensation and long-term reform.  
[32] While the Panel has considered all the materials, it finds Dr. Cindy Blackstock’s  
affidavit reliable given her expert knowledge of the matters at hand. Moreover, upon  
examination of the evidence attached to the affidavit, the Panel finds the affirmed declaration  
to be consistent with the referenced evidence. Dr. Blackstock provides a concise and very  
useful outline of this order request indicating that:  
16. As part of this consent motion, Canada has agreed to reform the FNCFS  
Program to reflect a performance-informed budgeting approach, with  
consideration of the well-being outcome indicators defined in the IFSD  
Measuring to Thrive framework. A Tribunal order requiring Canada to adopt a  
performance-informed budgeting approach consistent with the Measuring to  
Thrive framework will provide a foundation for the further development of a  
durable and equitable long term funding approach for the FNCFS Program  
that addresses ongoing discrimination and prevents its recurrence. The  
Measuring to Thrive framework provides the foundation for the further  
development of the Reformed Funding Approach pursuant to the IFSD Phase  
Three Research proposal. The Reformed Funding Approach must be based  
on evidence informed principles including the following:  
a. Funding will be provided by Canada based on evidence  
informed well-being indicators for First Nations children, youth,  
and families, as opposed to being driven by bureaucratic  
markers for funding;  
 
16  
b. The well-being indicators will facilitate reliable data collection  
at a community,  
regional and national level to inform best practices and improve  
federal child welfare policies and legislation over time;  
c. Funding will be based on a bottom-up budgeting approach  
driven by the actual needs of children, families and  
communities, reflecting the guidance and direction provided by  
the Tribunal to date; and  
d. Funding will address the structural drivers of the over-  
representation as well as culturally based child welfare services.  
[33] Dr. Blackstock further affirms that:  
17. The Measuring to Thrive framework is a results-based tool to plan,  
monitor, and assess the performance of policies and programs, against the  
goal of thriving First Nations children, families and First Nations. It is vital that  
the factors driving the over-representation of First Nations children in care  
(such as poverty, poor housing, substance misuse and domestic violence) be  
measured and addressed to ensure success and erase the discriminatory  
funding practices of Canada.  
18. Implementation of the performance-based budgeting framework in the  
Measuring to Thrive approach consistent with the IFSD recommendations,  
will center funding levels and structures on the needs of children, youth and  
families. This will mark a departure from the non evidence informed  
bureaucratic approach that was a hallmark of Canada’s discriminatory  
conduct and funding formulas, policies, procedures and agreements under  
the FNCFS Program.  
[34] The Panel finds this approach in line with its findings and previous orders such as a  
“cease its discriminatory practices and reform the FNCFS Program and 1965 Agreement to  
reflect the findings in this decision” order. In other words, those injunction-like powers to  
cease and desist aim to compel Canada to stop the systemic discrimination found by the  
Tribunal following the evidence-based findings in the Merit Decision and subsequent rulings  
as a road map with indicators of what constitutes the systemic discrimination found. Further,  
reform is an important component of the Tribunal’s orders. As the Panel previously stated,  
“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  
17  
Nations children and families living on reserve” (see Merit Decision at paras. 463,  
underlining changed). Consequently, the National Program, funding formulas and  
agreements need a full-scale reform not just support pillars (band-aid, unsustainable short-  
term solutions) put in place.  
[35] Further, the Panel believes that the consent order requests are in line with its findings:  
AANDC’s [now ISC] reasonable comparability standard does not ensure  
substantive equality in the provision of child and family services for First  
Nations people living on reserve. In 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.  
(see Merit Decision at para 465, emphasis added).  
[36] In 2018 CHRT 4 at para. 236 the Tribunal ordered that its immediate to mid-term  
orders will remain in effect:  
Until such time as one of the options below occur:  
1. Nation (Indigenous)-to Nation (Canada) agreement  
respecting self-governance to provide its own child welfare  
services.  
2. Canada reaches an agreement that is Nation specific even if  
the Nation is not yet providing its own child welfare services and  
the agreement is more advantageous for the Indigenous Nation  
than the orders in this ruling.  
3. Reform is completed in accordance with best practices  
recommended by the experts including the NAC and the parties  
and interested parties, and Eligibility of reimbursements from  
prevention/least disruptive measures, building repairs, intake  
18  
and investigations and legal fees services are no longer based  
on discriminatory funding formulas or programs.  
4. Evidence is brought by any party or interested party to the  
effect that readjustments of this order need to be made to  
overcome specific unforeseen challenges and is accepted by  
the Panel.  
(emphasis added)  
[37] The Panel believes that subparagraph 4 applies in these consent order requests.  
Moreover, the Panel believes that some of the consent order requests, including request #  
1, are intended to comply in the near future with subparagraph 3 above.  
[38] Furthermore, in 2018 CHRT 4 at para. 415:  
The Panel also recognizes that in light of its orders, and the fact that data  
collection will be further improved in the future and the NAC’s work will  
progress, more adjustments will need to be made as the quality of information  
increases.  
[39] Moreover, Dr. Valerie Gideon asserts in her March 4, 2022, affidavit that:  
7. ISC has agreed to fund the AFN to contract IFSD to undertake Phase Three  
of its research, Implementing a well-being focused approach to First Nations  
child and family services through performance budgeting. That research will  
model the reformed FNCFS funding approach with First Nations and service  
providers. ISC and the parties will consider Phase Three’s findings and  
recommendations in the transition to the new funding approach  
(recommendations on such topics as the FNCFS Program’s performance  
indicators and the activities of the national First Nations-led Secretariat  
function).  
[40] For the reasons explained above, the Panel agrees to make such order and, as will  
be explained below, the Panel has the power to make such an order.  
(ii)  
Fund Actual Cost Post-Majority Care  
Order request # 2. Canada shall fund at actual cost post-majority care to  
youth ageing out of care and young adults who were formerly in care up to  
and including the age of 25 across all provinces and territories (“post-majority  
care”). This funding shall be accessible through the actuals process for  
maintenance and protection reimbursed at the actual cost to the First Nations  
authorized post-majority service provider and shall be available until March  
 
19  
31, 2023. After this time, funding for post-majority care will be made available  
through the reformed FNCFS Program’s funding formulas, policies,  
procedures and agreements in an evidence- informed way agreed to by the  
Parties.  
[41] Dr. Blackstock in her affidavit and evidence correctly characterizes the Tribunal’s  
previous decisions and the evidence in the record.  
[42] Dr. Blackstock affirms that:  
31. [a]lthough the Tribunal did not directly address or consider post majority  
services in the Merits Decision or in the rulings that followed, evidence was  
tendered during the hearing on the merits on some of the tragic circumstances  
facing First Nation youth leaving care at the age of majority. Excerpts of the  
following evidence from the hearing on the merits are attached as Exhibit “E”  
to [her] affidavit:  
a. Commission’s Book of Documents, Tab 3: National Policy  
Review at p. 56;  
b. Commission’s Book of Documents, Tab 5: Wen: De We are  
Coming to the Light of Day at pp. 195 and 200;  
c. Commission’s Book of Documents, Tab 389: Report of the  
Commission of Inquiry into the Circumstances Surrounding the  
Death of Phoenix Sinclair at p. 44;  
d. My February 25, 2013, examination-in-chief at pp. 146-147;  
and  
e. Betty Kennedy’s September 4, 2013, examination-in-chief at  
pp. 14.  
[43] The Panel agrees with the Caring Society that:  
32. [i]t is important to recognize that, given the long history of this case, all  
First Nations young adults currently aged 18-25 who were placed in care  
under the FNCFS Program experienced the harms arising from Canada’s  
discrimination. Canada, therefore, has a positive moral obligation to provide  
supports to these young people to mitigate some of the harms its willful and  
reckless discrimination caused. The Panel also agrees the evidence listed by  
Dr. Blackstock above address leaving care at the age of majority and support  
the need for the requested order.  
The Caring Society believes strongly in centering and empowering the voices  
of youth in care. Therefore, on September 2019, the Caring Society entered  
20  
into an agreement with Youth in Care Canada (“YICC”) to organize a national  
consultation with First Nations youth in care or formerly in care regarding the  
Compensation Process. In November 2019, YICC released Justice, Equity  
and Culture: the First-Ever YICC Gathering of First Nations Youth Advisors,  
which is attached as Exhibit “11” to [Dr. Blackstock’s] December 8, 2019,  
affidavit filed with the Tribunal. This report makes important recommendations  
regarding the Compensation Process and recommendations regarding child  
welfare system reforms, including the need for post-majority supports for  
youth transitioning out of care.  
In November 2021, the Caring Society entered into an agreement with the  
Assembly of Seven Generations (A7G) to provide an advisory report  
regarding reform of the FNCFS Program, among other things. In January  
2022, A7G released Children Back, Land Back: A Follow-Up Report of First  
Nations Youth In Care Advisors. This report also included key  
recommendations regarding the need for supports for First Nations young  
adults transitioning out of care. A copy of this report is attached to [Dr.  
Blackstock’s] affidavit dated March 4, 2022, as Exhibit “F”.  
[44] The Panel has considered the evidence provided through Dr. Blackstock’s affidavit  
alongside all the evidence in the record.  
[45] The Panel considered and accepted the YICC’s 2019 recommendations as part of  
the compensation process orders (see 2020 CHRT 7 at paras. 31-34).  
[46] The Panel finds the YICC reports and recommendations to be reliable given the  
methodology employed to arrive to their findings. Furthermore, the reports and  
recommendations are also highly relevant given the YICC’s direct knowledge and  
experience of the impacts of being in care and aging out of care.  
[47] The findings in YICC’s report CHILDREN BACK, LAND BACK: A Follow-Up Report  
of First Nations Youth In Care Advisors discuss how the underfunding impacted their  
childhood and adolescence as well as long-term impacts. These impacts included the  
following but are not limited to:  
• Removal from birth, biological or blood family  
• Lack of support for birth, biological or blood family money instead flows to  
foster families. In this vein, there are minimal supports to be able to cover the  
cost of living.  
21  
• Lack of resources for child and family services as well as related services  
which have a major impact on child and family well-being, for example health  
clinics, therapy, and rehab centers on reserve.  
• Youth believe underfunding caused them to be shifted from temporary to  
permanent wards of the state and even resulted in being adopted to non-  
Indigenous families.  
Attending services and placements not culturally safe therefore resulting in  
experiences of microaggressions and racism.  
• Struggling with addiction and mental health with no proper supports.  
• Experiencing homelessness and poverty especially after aging out of care.  
• Increased vulnerability of experiencing human trafficking.  
• Increased interaction with the criminal justice system (for the youth in care  
as well as their families).  
• Lack of supports to succeed in school, resulting in high school dropouts and  
undiagnosed learning disabilities.  
[48] The YICC report #2 made important recommendations and stated that “while we  
cannot turn back time to undo the harm and abuse that Indigenous youth and children have  
experienced in child welfare, we can use the lessons of hindsight and the generations of  
reports, recommendations and solutions to prevent harm and abuse from happening to  
another generation of Indigenous youth and children” (p. 28).  
[49] Another important recommendation is that:  
Canada and its provinces/territories must acknowledge and be honest about  
the violence they have caused to Indigenous youth and children and their  
families through their policies and legislation. This acknowledgement of past  
and ongoing violence must be followed up with actions and systemic changes.  
Within this acknowledgement, Indigenous rights as well as distinctions-based  
rights, treaty rights, and inherent rights must be recognized. Indigenous  
peoples must be involved in every aspect of these systems that impact them  
alongside evaluation of these systems to ensure ideologies are remedies.  
Furthermore, First Nations must be supported to move to self government with  
culturally based and equitable funding if they want to go that path.  
(p. 28, emphasis omitted).  
[50] The YICC report also mentions at p. 30 that:  
22  
It is an understatement to say that the relationship between Indigenous youth,  
children, families and communities and Canada is tense and strained. Trust  
has been broken. Those that have been impacted by child welfare want to see  
justice and accountability. Canada cannot be trusted to make the best  
decisions for Indigenous youth and children and Canada’s promise to do  
better cannot be trusted. Until trust can be rebuilt, there must be a mechanism  
in place that can hold Canada accountable. This mechanism must be led and  
designed by Indigenous youth as mentioned in Accountability in Our Lifetime:  
A Call to Honour the Rights of Indigenous Children and Youth.  
[51] Some of the recommendations are directed to youth aging out of care:  
Presently, supports to “age out” of child welfare vary by province and territory.  
The First Nations Child and Family Services program ends care at age 18,  
though there is an ongoing moratorium on “aging out” of care due to the  
COVID-19 pandemic. The Federal 2021 Budget promised to “permanently  
ensure that First Nations youth who reach the age of majority receive the  
supports that they need, for up to two additional years, to successfully  
transition to independence.” It is essential to listen to and incorporate  
feedback from the youth who will be impacted by this policy change. The  
decision to formally transition into adulthood must also be made in  
consultation with the youth leaving care including based on their own  
readiness level. Supports must be provided to help youth transition into  
adulthood.  
(p. 37)  
[52] The Panel accepts the YICC’s recommendations and finds that many findings in  
report #2 to be corroborating the evidence provided by the parties in these proceedings that  
led to the Tribunal’s previous findings. This speaks to the probative value of the report #2.  
Finally on this point, the Panel wants to emphasize the YICC’s voices have also been heard  
by this Tribunal. The Panel values the YICC’s viewpoint informed by direct experience.  
[53] Moreover, research has been completed by Dr. Mary Ellen Turpel-Lafond. Dr. Turpel-  
Lafond’s report, “On Their Own: Examining the Needs of B.C. Youth as They Leave  
Government Care”, dated April 2014, explored the issue of the termination of services for  
youth involved with the child and family services system in British Columbia when they reach  
the age of 19. This report noted that despite improvements to the supports available to  
transition young people out of care and into independence, there remains much to be done  
to assist them to become full, contributing members of society. This report is filed as an  
exhibit to the affidavit of Dr. Mary Ellen Turpel-Lafond on April 2, 2019.  
23  
[54] The report, “Paige’s Story: Abuse, Indifference and a Young Life Discarded”, filed as  
an exhibit to the affidavit of Dr. Mary Ellen Turpel-Lafond on April 2, 2019, provides an  
analysis of ongoing issues faced by Indigenous youth involved with the child and family  
services system. The report documents the life of an Indigenous girl from British Columbia,  
who never received the nurturing or protection she deserved. The Representative has taken  
the unusual step of using Paige’s actual name in this report, because it is important to  
acknowledge that this is the story of a real girl, a real person a person who deserved much  
better from the society in which she briefly lived. Paige was in and out of the child and family  
services system, being moved some 50 plus times between the ages of 14 to 16. There  
were serious issues with respect to Paige’s required protection, but various parties who had  
interactions with Paige failed to report her circumstances to the authorities. This resulted in  
Paige aging out of care at age 19 without a transition plan or adequate supports, which  
culminated in Paige’s death from an overdose shortly after her 19th birthday. The outcome  
was predictable and should have been prevented. The report made several  
recommendations regarding the “professional indifference” demonstrated by those who are  
supposed to care for children that contributed to Paige’s death, and to put in place  
safeguards for all children in care, with particular attention paid to Indigenous children, to  
provide and enhance transition supports as they age out of care.  
[55] Further, the Reclaiming Power and Place: The Final Report of the National Inquiry  
into Missing and Murdered Indigenous Women and Girls, is attached to Stephanie  
Wellman’s affidavit dated March 7, 2022, as Exhibit “H”. This Report outlines the need for  
support for youth aging out of care. For example, Call for Justice 12.11 outlines further  
programming recommendations for youth "aging-out" of care. These recommendations  
include “a complete network of support from childhood into adulthood based on capacity  
and needs,” as well as “opportunities for education, housing, and related supports. This  
includes the provision for free post-secondary education for all children in care in Canada.”  
[56] The Panel finds there is sufficient probative, relevant and reliable evidence in this  
case to make the requested order.  
[57] The Panel agrees with the consent order request and finds this could bring positive  
change to youth aging out of care especially given the higher risks to experience,  
24  
homelessness, poverty and human trafficking and other risks as identified in YICC’s report  
#2 and referred to above.  
[58] Moreover, the MMIWG, Reclaiming Power and Place: The Final Report of the  
National Inquiry into Missing and Murdered Indigenous Women and Girls vol. 1a, made  
similar findings:  
The National Inquiry heard about instances of human trafficking from First  
Nations, Inuit, and Métis witnesses, who often spoke about their experiences  
within the context of their history within child welfare, or the need to find  
medical care not available in home communities  
(p. 565)  
For Indigenous girls and 2SLGBTQQIA youth, the dangers associated with  
moving from one place to another or with being displaced from a safe  
community are significantly heightened. However, given the extensive  
violence and abuse experienced by many youth in care, leaving a foster home  
or other living accommodation may be the only option that seems to exist in  
order to escape violence.  
Erin Pavan, the manager of STRIVE Youth in Care Transition Program,  
poignantly described the lack of security that exists for Indigenous girls, youth,  
and 2SLGBTQQIA people in these contexts: “So, aging out of care is really  
like a euphemism for the abrupt termination of all … services. Like, this ‘aging  
out,’ I don’t even like this term, I think it’s too gentle for what the experience  
is; it’s like being pushed off a cliff, right?”  
For many of the family and friends who shared their truths, the failure to  
address the realities of abuse and violence experienced by children and youth  
within child welfare forces many youth, in their attempts to escape violence,  
to enter into more dangerous situations, which usually begin with running  
away. Even for those youth who do remain in care, aging out of care and the  
lack of support are akin to as Erin puts it pushing them off a cliff. In both  
cases, poverty, housing, barriers to education, and unique vulnerabilities to  
drugs, trafficking, and other forms of interpersonal violence collectively  
remove safety. As we heard from many families, recognizing what happens  
at the edge of this cliff and how basic economic and social security is  
undermined here is key to understanding the violence that leads to the  
disappearance and death of Indigenous women and girls.  
Understandably, the challenges of daily survival mean that, for many youth in  
foster care or those who have aged out of foster care, completing high school,  
25  
pursuing post-secondary education, or finding employment become  
impossible. Erin Pavan put things into perspective.  
They’re not graduating high school; I think that by age 19, like  
32% of youth aging out of care will have a high school diploma,  
compared to 84% for the general population. And, so they’re not  
finishing school.  
They’re also less likely to have a job. They’re going to make less  
money. A lot of them are relying on income assistance right off  
the bat, 40% will go right onto income assistance.  
The income assistance rate just finally got raised in BC, but for  
Vancouver it is not even near enough money to live off of. You  
can’t even pay rent with it, never mind buy food. So they’re  
going into extreme poverty right off the bat, with no high school  
diploma, not enough supportive people in their lives. Obviously,  
by definition, anyone who’s been through care is going to have  
trauma. So they’ve got trauma; they’re more likely to have  
issues with their mental health, with substance use, more likely  
to be involved with the criminal justice system, become young  
parents. They’re more likely to die young. Of the 1,000 youth  
who age out of care in BC every year, three to four will be dead  
before they turn 25.  
So I think you can really see the connection, right, between the  
missing and murdered young women and the care system.  
(pp. 555-557, footnotes omitted).  
[59] The Panel thanks the parties for this important advancement and their dedicated  
efforts. The Panel is honored to make such an order that may have far reaching positive  
effects for youth aging out of care.  
[60] Finally on this point, the Panel finds it has the power to make such an order. As  
successfully demonstrated by the parties, the evidence in this case supports the order. The  
Tribunal’s powers to make the order are further explained below.  
(iii) High Needs Jordan’s Principle Recipients past the Age of Majority  
Order request # 3. Given Canada’s commitment to non-discrimination and  
substantive equality, Canada shall assess the resources required to provide  
assistance to families and/or young adults in identifying supports for needed  
services of high needs Jordan’s Principle recipients past the age of majority  
 
26  
(as defined in the applicable First Nations or provincial/territorial statute).  
Canada shall consult with the Parties within sixty (60) days of the order to  
discuss the scope and scale of these transition supports and how such  
funding capacity can be incorporated into the Jordan’s Principle long-term  
reform.  
[61] Stephanie Wellman, Director of Social Development with the Assembly of First  
Nations (AFN), employed with the AFN since May 2015, provided an affidavit affirmed on  
March 7, 2022. Prior to this Ms. Wellman worked in the AFN Health Sector and transferred  
sectors in March 2018 to the AFN Social Development Sector. In the Social Development  
Sector, she worked on Jordan’s Principle until 2019.  
[62] The Panel finds her affidavit and evidence very helpful given her relevant experience  
and expertise and the important details provided in her affidavit and evidence. Moreover,  
the Panel finds the evidence filed to support her affidavit does corroborate her declaration.  
[63]  
She affirms that:  
16. On December 31, 2021, the Parties executed an AIP on long-term reform  
and a separate AIP on compensation. On January 4, 2022, the Parties publicly  
announced that they reached these agreements. As part of the AIP on long-  
term reform, and upon execution of a Final Settlement Agreement by  
November 30, 2022, the Parties committed to reforming the FNCFS Program  
by March 31, 2023 and improving Canada’s compliance with and reforming  
Jordan’s Principle.  
[64] As Ms. Wellman stated in her affidavit:  
20. The AFN has been mandated and called on by First Nations leadership,  
parents and caregivers, Jordan’s Principle Service Coordinators (Navigators)  
and others with intimate knowledge of the impact of Jordan’s Principle to  
advocate for supports for youth with disabilities beyond the age of majority.  
The advocacy of the AFN has been fundamental in supporting and calling on  
Canada to address said issues, which is an immediate measure requested in  
this Motion.  
21. The AFN Chiefs-in-Assembly have called for the need to improve how  
Jordan’s Principle is delivered, with a goal of ensuring that First Nations are  
not limited by the current program authorities. This was a component of AFN  
Resolution 27/2018, Support for the long-term implementation of Jordan’s  
Principle, attached to [her] affidavit as “Exhibit A”.  
27  
22. The AFN has participated in and organized several gatherings concerning  
Jordan’s Principle. During these sessions, the AFN heard the need to be  
supporting youth beyond the age of majority, as disabilities do not simply end  
when a child turns 18.  
23. At the Jordan’s Principle Service Coordinators Gathering in November  
2019, presenter Lyndia Jones, from the Independent First Nations (Ontario),  
provided a recommendation for on-reserve disability services for First Nations  
children “aging out” of Jordan’s Principle eligibility, attached to [Ms.  
Wellman’s] affidavit as “Exhibit B”.  
24. Further, at the Jordan’s Principle Summit in September 2018, the  
challenges of youth aging out of Jordan’s Principle eligibility were noted,  
referencing the need for adult-focused disabilities programs on-reserve, and  
support for caregivers. The report from the Jordan’s Principle Summit is  
attached to [Ms. Wellman’s] affidavit as “Exhibit C”.  
25. The AFN led national engagement on federal accessibility legislation and  
noted the potential implications for First Nations persons with disabilities.  
The most prominent shortcomings of Jordan’s Principle are the  
stringent eligibility criteria and the child only policy, providing no  
greater access to services or protection from jurisdiction  
wrangling for [First Nations persons with disabilities] over 18  
years of age” (Appendix B, p. 7).  
[65] The Panel finds this is supported by other evidence found at pages 7-8 of Appendix  
B to the AFN led Engagement on Federal Accessibility Legislation dated March 2017).  
Further, in Appendix A, at p. 18:  
Jordan’s Principle could be expanded in contemplation of accessibility  
legislation to apply to any First Nations person, regardless of age, with any  
type of disability or disabilities caught in a jurisdictional dispute where those  
services are available off-reserve.  
[66] Ms. Wellman’s affidavit continues:  
26. [She states that] a number of reports have supported the AFN’s advocacy  
efforts and First Nations concerning the issue of post-majority care for high  
needs individuals. In terms of regional reports, the Keewaywin Engagement  
Manitoba First Nations Jordan’s Principle Implementation Report, from  
Manitoba in 2017 call for supports beyond the age of 18, attached to my  
affidavit as “Exhibit E”, states:  
28  
Youth with special needs that are aging out of care require  
support past 18 years of age and the same services and  
supports they received while under the age of 18 must continue  
into their adult lives. Providing life skills programming and  
access to independent living units will empower our young  
adults aging out of care to move toward independence.  
31. In the final report of the Public Inquiry Commission on relations between  
Indigenous Peoples and certain public services in Québec: listening,  
reconciliation and progress, known as the Viens Commission report, is  
attached to [Ms. Wellman’s] affidavit as “Exhibit G”. This report recommended  
that the provincial government “initiate discussions with the federal  
government to extend the Jordan’s Principle to adults”.  
34. In 2021, three human rights complaints were filed against Canada for its  
failure to support First Nations adults with disabilities in Manitoba. The  
complaints highlight that Jordan’s Principle has effected important changes  
for children and youth with disabilities. However, there remains a critical gap  
when youth reach the age of majority, who are then left without the services  
and supports that they were receiving. These complaints also bring forward  
concerns about connection to culture for young adults and other adults with  
disabilities who are forced to leave their communities to access supports, due  
to the lack of disability supports and services on-reserve.  
[67] Dr. Blackstock affirms in her March 4, 2022, affidavit that:  
36. The Caring Society provides some assistance to First Nations children,  
families and First Nations community navigators to ensure ISC’s approach  
and provision of Jordan’s Principle is consistent with the Tribunal’s decisions.  
In this role, we have encountered many First Nations youth who are receiving  
significant supports, services, and products via Jordan’s Principle. Some of  
these individuals are high needs youth who are having their day-to-day needs  
managed and met by services funded under Jordan’s Principle. ISC ceases  
providing Jordan’s Principle services, products and supports when youth  
reach the provincial age of majority meaning that high needs adolescents will  
almost certainly experience gaps in supports, services and products  
detrimental to their health and overall well-being.  
[68] The consent order sought will enable Canada to assess the resources required to  
provide assistance to families and/or young adults in identifying supports for needed  
services of high needs Jordan’s Principle recipients past the age of majority.  
29  
[69] After considering all the evidence including the above, the Panel agrees with the  
requested order. The Panel finds the evidence filed as part of this motion supports a finding  
that First Nations with high needs and with disabilities given the eligibility cut-off when  
reaching the age of majority stop receiving services under Jordan’s Principle and experience  
barriers and gaps in services.  
[70] Of note, the First Nations and First Nations Persons with Disabilities Engagement on  
Federal Accessibility Legislation report dated March 2017, at Appendix B, page 8, mentions  
that:  
Due to the fact that there is no clear governmental department that should be  
responsible for providing services to First Nations Persons With Disabilities, it  
is necessary that the government develop a cross-departmental coordinated  
effort […] to ensure a comprehensive provision of services.  
[71]  
The requested order will allow to obtain evidence-based information to ensure First  
Nations persons with disabilities and high needs reaching the age of majority have their  
specific needs met. This is consistent with applying a substantive equality lens to services  
and programs.  
[72] It is also in the interest of the good administration of justice and human rights to  
address this now rather than to wait for the three complaints to proceed.  
[73] Finally on this point, the Panel finds it has the power to make such an order. As  
successfully demonstrated by the parties, the evidence in this case supports the order. The  
Tribunal’s powers to make the order are further explained below.  
(iv)  
Fund Needs Assessment and Long Term Funding Research  
Order request # 4. Canada shall fund the following research through the  
Institute for Fiscal Studies and Democracy (“IFSD”):  
a. the IFSD Phase 3 Proposal (including stage 5): Implementing a  
well-being focused approach to First Nations child and family  
services through performance budgeting, dated July 22, 2021;  
b. the IFSD needs assessment regarding the real needs of First  
Nations not served by an agency to identify their needs as they  
 
30  
relate to prevention, operations and to further identify remedies  
to gaps that need to be closed as part of long-term reform (the  
“Non-Agency First Nations Needs Assessment”);  
c. the IFSD assessment regarding available data on the use of  
Jordan’s Principle to inform a future cost assessment of  
Canada’s implementation of Jordan’s Principle and program  
reform (the “Jordan’s Principle Data Needs Assessment”); and  
d. upon completion of the Jordan’s Principle Data Assessment,  
the IFSD needs assessment regarding a long-term funding  
approach for Jordan’s Principle, including but not limited to  
identifying and addressing formal equality gaps, in keeping with  
the Tribunal’s rulings, including but not limited to 2016 CHRT 2,  
2017 CHRT 35, 2020 CHRT 20 and 2020 CHRT 36 (the  
“Jordan’s Principle Long Term Funding Approach Research”).  
[74] In her March 4, 2022, affidavit, Dr. Blackstock affirms that:  
39. The Caring Society recognizes that further funding approach research and  
work is required to achieve meaningful long-term reform to satisfy the  
Tribunal’s direction in the Merits Decision. Under the FNCFS Program, further  
research is necessary to model the Measuring to Thrive framework as  
outlined in the IFSD Phase Three Proposal. …  
40. The results of the IFSD Phase Three work will assist the Parties in  
finalizing a long-term reform funding approach for the FNCFS Program (the  
“Phase Three Recommendations”). Canada’s agreement to fund this work as  
of December 31, 2021, pursuant to this consent motion is an important step  
to reforming the FNCFS Program on a final basis. …  
41. Research to inform evidence-based long-term reform recommendations  
for Jordan’s Principle will be critical to ensuring that Jordan’s Principle is  
equitable, sustainable, accessible and that Canada is held accountable for the  
full and proper implementation of the Tribunal’s orders. The Caring Society  
strongly believes such research must inform a longer-term funding approach  
for Jordan’s Principle that embeds the Measuring to Thrive framework  
indicators for children, families, and communities to promote more holistic and  
seamless funding. We also see value in underpinning Jordan’s Principle with  
the Spirit Bear Plan, given the large number of Jordan’s Principle requests  
that relate to formal equality.  
[75] Further:  
42. IFSD has agreed to take on this Jordan’s Principle research and, pursuant  
to this consent motion, Canada has agreed to fund it.  
31  
[76] The Panel agrees with the Caring Society and finds this is in line with the Panel’s  
approach, findings and orders to eliminate systemic discrimination and prevent the same or  
similar discriminatory practices to emerge. Moreover, recently filed evidence in support of  
this motion substantiates Dr. Blackstock’s assertions. The Panel finds this order is  
necessary to achieve evidence-based meaningful and sustainable long-term reform  
informed by the real needs of children, youth and families. This is consistent with the Panel’s  
orders to provide services according to the First Nations children’s real needs.  
[77] In her March 7, 2022 affidavit, Ms. Wellman states that:  
37. The work of the IFSD has been critical thus far in the matter associated  
with this motion and negotiations in understanding and formulating a well-  
being focused approach for FNCFS. The need for an evidence base and  
equitable funding regime for FNCFS has long been recognized by First  
Nations citizens and leaders, service providers, and academics and has led  
to a long history of research which preceded the IFSD reports. This was the  
goal of the Joint National Policy Review in 2000 and of the Wen:de Reports  
in 2005, which stated that “any new funding regime should be founded on  
evidence-based research and data – not speculation.”  
[78] The Panel arrives to the same conclusion in weighing previous evidence and recently  
filed evidence in the record.  
[79] Furthermore, Ms. Wellman asserts in her March 7, 2022 affidavit that:  
38. … research is vital to the success of FNCFS reform. Evidence-based  
decision-making in child and family services is essential to reduce risk factors  
through targeted interventions for First Nations children and families to  
achieve long-term goals and ensure that interventions achieve intended  
outcomes. The AFN has advocated for this research to be completed. The  
Parties to the FNCFS and Jordan’s Principle negotiations with respect to the  
AIP agree that Canada shall fund research by the IFSD.  
[80] She further adds that:  
53. … [D]ue to bureaucracy and underfunding of other programs, parents,  
guardians and professionals must seek other ways for First Nations children’s  
needs to be met and continue to turn to Jordan’s Principle.  
[81] Ms. Wellman affirms that:  
32  
57. … [C]hallenges have been noted at Jordan’s Principle Operations  
Committee meetings, including on October 30, 2020 [excerpt from meeting  
record, full meeting record and presentation attached as “Exhibit O”]:  
The approved requests need to be situated within the context  
of the compliance rates and denials in order to give the broader  
context. …  
59. For example, the 2020-21 deep dive analysis and summary of key  
findings (attached to [Stephanie Wellman’s] affidavit as “Exhibit P”) points to  
a high number of approved requests in the areas of education, medical  
transportation, respite, mental wellness and allied health, across individual  
and group requests. …  
60. The 2020-21 deep dive analysis also indicates challenges with  
compliance with this Panel-ordered timelines: 65% for individual urgent  
requests; 63% for non-urgent individual requests; 35% for urgent group  
requests; and 73% for non-urgent group requests.  
[82] Further, in Stephanie Wellman’s affidavit dated March 7, 2022:  
59. … The deep dive indicates that roughly half of the approved products and  
services under individual and group requests are within the normative  
standard (p. 2).  
[83] Again, in Stephanie Wellman’s same affidavit:  
58. Further, the data that is reported on in the deep dive analysis does not  
give a full picture of where the gaps exist. While the analysis certainly points  
to where gaps may exist, there is a need for a comprehensive analysis of the  
data to understand the true scope and depth of the gaps. This work would  
assist to identify what is required to fill them.  
61. A complete understanding of what is currently being covered by Jordan’s  
Principle is required for true equality to exist for First Nations children. For  
instance, analysis on the services and supports being sought and their cost is  
critical to forecasting expenditures within Jordan’s Principle and to supporting  
the identification of gaps in other programs and services to fill them. The work  
proposed by the IFSD Jordan’s Principle Data Assessment and Jordan’s  
Principle Needs Assessment will assess these critical gaps and measure what  
is needed to close them.  
[84] The Panel entirely agrees and finds this is supported by the evidence.  
33  
[85] The parties have obviously and carefully thought this through and intentionally  
negotiated the required elements to be covered by further IFSD research to achieve  
evidence-based long-term reform for the benefit of First Nations children, youth and families.  
As successfully demonstrated by the parties, the evidence in this case supports the order.  
[86] Therefore, the Panel finds it has the power to make such an order. The Tribunal’s  
powers to make the order are further explained below.  
(v)  
Timelines for Supporting Research Data Requests  
Order request #5. Canada shall fulfil all IFSD data requests within ten (10)  
business days or propose reasonable alternative timelines required to protect  
privacy.  
[87] This request is ancillary to the request to fund the various IFSD research studies. It  
creates expectations for both the researches conducting the studies and Canada in  
supporting the research by providing relevant information. The Panel agrees with this wise  
operative request to ensure the IFSD work is efficient and has all the necessary data to  
conduct its research without experiencing long delays. As it will be explained below, the  
Panel has the authority to make such a consent order.  
(vi)  
ISC Cultural Competency and Anti-Discrimination Plan  
Order request #6 a. Canada shall consult with the Parties and implement the  
mandatory cultural competency training and performance commitments for  
employees within Indigenous Services Canada.  
Order request #6 b. Canada shall also work with the Parties to establish an  
expert advisory committee within sixty (60) days of this order to develop and  
oversee the implementation of an evidence-informed work plan to prevent the  
recurrence of discrimination. Canada shall take reasonable measures to  
begin implementing the work plan.  
[88] As set out in Dr. Blackstock’s affidavit dated March 4, 2022:  
48. The NAC has considered necessary reforms of ISC and reforms within  
the Government of Canada. In its Interim Report of the National Advisory  
Committee on First Nations Child and Family Services Program Reform,  
January 2018 [see Exhibit I attached to Dr. Blackstock’s affidavit], the NAC  
   
34  
makes several recommendations regarding internal reform, training, and  
education, including the following:  
a. A comprehensive 360 evaluation of ISC’s FNCFS Program  
and Jordan’s Principle must be completed to ensure it is fulfilling  
the Treasury Board Authorities and is compliant with the law  
and Canada’s commitment to the Truth and Reconciliation  
Commission (TRC) Calls to Action. Such an evaluation should  
include consultation with First Nations leadership, FNCFS  
Agencies and experts such as provincial/territorial child  
advocates. The evaluation can inform the reformulation of ISC  
and Indigenous Crown Relations. This evaluation should be  
made public, and the evaluation team/group will be selected  
jointly by First Nations leadership and Canada. These  
evaluations should be done every 4 years to ensure ongoing  
compliance (see p. 17).  
b. Mandatory training for all Government of Canada officials  
interacting with First Nations children, youth and families on  
First Nations peoples and reconciliation (see p. 17).  
c. Linking performance measures and awards for all  
Government of Canada employees interacting with First  
Nations children, youth and families with compliance with the  
TRC Calls to Action and the United Declaration on the Rights of  
Indigenous Peoples (UNDRIP”) (see p. 18).  
50. From the Caring Society’s perspective, reform of ISC is critical to  
sustainable and equitable long-term reform. In addition to the  
recommendations made by the NAC, the Caring Society will continue to  
advocate for full ISC reform including: (a) ensuring that ISC staff have proper  
credentials in First Nations child and family services, children’s health,  
education and social services; (b) implementing employee performance and  
incentive programs linked to ensuring non discrimination and alignment with  
human rights law, including but not limited to the United Nations Convention  
on the Rights to the Child (with attention to General Comment No. 11) and  
UNDRIP; and (c) adoption and implementation of the Spirit Bear Plan to  
address all inequities in federally funding public services. The Spirit Bear plan  
was introduced as an exhibit to the cross examination of Sony Perron (then  
Associate Deputy Minister at Indigenous Services Canada) on May 9, 2018,  
and a copy is attached to Dr. Blackstock’s affidavit as Exhibit “J”.  
[89] The Panel accepts the above and finds this is consistent with the evidence and  
history in this case. For example, in the Merit Decision, the Panel wrote:  
35  
[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).  
[90] As set out in Ms. Wellman’s affidavit of March 7, 2022:  
Moreover, the AFN Chiefs-in-Assembly unanimously supported the Spirit  
Bear Plan during the 2017 Special Chiefs Assembly through AFN Resolution  
92/2017, Support the Spirit Bear Plan to End Inequities in all Federally Funded  
Public Services for First Nations Children, Youth and Families, attached to  
[Stephanie Wellman’s affidavit dated March 7, 2022] as “Exhibit R”.  
[91] The Spirit Bear Plan is set out as Exhibit J to Dr. Blackstock’s affidavit dated March  
4, 2022 and as Exhibit Q to Stephanie Wellman’s affidavit dated March 7, 2022:  
Spirit Bear calls on:  
1 CANADA to immediately comply with all rulings by the  
Canadian Human Rights Tribunal ordering it to immediately  
cease its discriminatory funding of First Nations child and family  
services. The orders further require Canada to fully and properly  
implement Jordan’s Principle (www.jordansprinciple.ca). all  
federally funded public services provided to First Nations  
children, youth and families  
2 PARLIAMENT to ask the Parliamentary Budget Officer to  
publicly cost out the shortfalls in all federally funded public  
services provided to First Nations children, youth and families  
(education, health, water, child welfare, etc.) and propose  
solutions to fix it.  
3 GOVERNMENT to consult with First Nations to co-create a  
holistic Spirit Bear Plan to end all of the inequalities (with dates  
and confirmed investments) in a short period of time sensitive  
to children’s best interests, development and distinct  
community needs.  
4 GOVERNMENT DEPARTMENTS providing services to First  
Nations children and families to undergo a thorough and  
independent 360° evaluation to identify any ongoing  
discriminatory ideologies, policies or practices and address  
them. These evaluations must be publicly available.  
5 ALL PUBLIC SERVANTS, including those at a senior level, to  
receive mandatory training to identify and address government  
36  
ideology, policies and practices that fetter the implementation of  
the Truth and Reconciliation Commission’s Calls to Action.  
[92] The Panel notes that included in the MMIWG report, Reclaiming Power and Place:  
The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and  
Girls, filed in evidence in support of this motion, there is a specific call to justice concerning  
the Spirit Bear Plan:  
12.13. We call upon all governments and child welfare agencies to fully  
implement the Spirit Bear Plan.  
[93] Furthermore, Canada publicly accepted the MMIWG report and findings.  
Consequently, the Panel believes this should inform long-term reform.  
[94] In her affidavit, Stephanie Wellman asserts that:  
67. … First Nations have called for training to be given to senior officials at  
ISC and the Department of Crown-Indigenous Relations and Northern Affairs  
Canada. Such training may include ongoing evaluation to ensure officials  
understand the information and can translate it into practice effectively.  
68. Training would be directed by an expert Advisory Committee and may  
include the development and implementation of a training program for all staff  
working with the FNCFS Program. While the scope and content of the training  
has yet to be developed, the AFN is of the view that such training may cover:  
First Nations' cultures, worldviews, and histories;  
Factors contributing to the over-representation of First  
Nations children in child and family services, including the  
intergenerational impacts of the Residential Schools;  
The findings of the MMIWG2S inquiry, including how it  
impacts First Nations families;  
Recent social movements like Idle No More or Families of  
Sisters In Spirit;  
The history of the FNCFS Program, including the reviews  
and evaluations conducted from 2000 to 2011 and this  
Panel’s findings.  
[95] Moreover, Dr. Blackstock states that:  
37  
47. [she] recognizes that Canada has done some work on staff training.  
However, this is not sufficient to address the ongoing discrimination or prevent  
its recurrence. For example, Dr. Amy Bombay designed training for ISC staff  
on matters directly relating to the Merits Decision ranging from residential  
schools to child development. She conducted a pre- and post-test of ISC  
employees who took the training. Results indicate ISC staff showed a positive  
benefit from that training regarding historical understanding and matters  
peripheral to their duties. However, old mindset thinking patterns became  
more entrenched when the training included material about contemporary  
injustices. Consistent with the Tribunal’s orders, the Caring Society will work  
to ensure that the final settlement agreement includes evidence informed  
long-term reform measures for child and family services and Jordan’s  
Principle that include significant and structural changes within the Department  
to safeguard against a repetition or new manifestation of the discrimination  
experienced by First Nations children, youth, and families.  
[96] Dr. Blackstock further asserts that:  
46. [t]he immediate steps in the proposed consent order regarding reform at  
ISC are of great importance to the Caring Society. Canada has a long history  
of failing to take adequate steps to implement many measures to save  
children’s lives and childhoods. This is reflected in the numerous non-  
compliance and procedural motions required to get Canada to act since the  
Merits Decision. This pattern of Canada knowing better but not doing better  
even when the arising harms are severe is emblematic of Canada’s historic  
and contemporary conduct toward First Nations children, youth, and families.  
Up until now, there is little evidence that Canada has learned from its  
misconduct and made changes so that it does not recur. In my view, this  
pattern is clear in the findings made by the Tribunal in the Merits Decision and  
in the subsequent decisions related to non-compliance.  
[97] According to Stephanie Wellman:  
66. [t]he AFN has heard from First Nations that the overall training should  
include a truth telling component on how Canada's past and contemporary  
actions impact First Nations children, youth, and families to identify and  
remediate colonial philosophies, practices and policies that persist today.  
Such training may include experiential learning relevant to the First Nations  
served by the officials, such as Elder's teachings, ceremonies, the  
Touchstones of Hope, and attendance at First Nations research seminars and  
Elder's gatherings to ensure ongoing professional development.  
[98] The Panel accepts the above and finds this is consistent with the evidence, the  
Panel’s findings and the history in this case. The Panel agrees with the AFN and insists that  
training should include a truth-telling component, all the items listed above and the Tribunal’s  
38  
findings and orders. While the Panel acknowledges Canada’s steps forward, the Panel has  
emphasized on multiple occasions the need for ISC to eliminate its old mindset, an important  
contributing factor that led to systemic discrimination.  
[99] The Panel finds it has authority to make the requested order which is necessary and  
supported by the evidence in this case. The Tribunal’s powers will be further detailed below.  
[100] Moreover, Dr. Blackstock affirms in her March 4, 2022, affidavit that:  
53. … [she hopes] that these incremental changes will result in significant  
structural reform within ISC and lead to the extinguishment of the “old mindset”  
of the Department that has resulted in devastating impacts on First Nations  
children, youth and families. Without these fundamental changes, there will  
be no lasting and durable reform.  
[101] Dr. Gideon in her March 4, 2022, affidavit provides important details on this point. In  
sum, she affirms that:  
32. ISC, the AFN and the Caring Society will discuss and agree to a list of  
candidates to join a new Expert Advisory Committee to support the design  
and implementation of an independent evaluation of ISC. …  
33. ISC will initiate the process to put in place a contract for expert evaluators  
to support ISC, the parties and the Expert Advisory Committee in developing  
a framework for ISC’s internal evaluation. This framework is still to be  
developed. Discussions to date have focused on innovative methodologies to  
identify systemic barriers that have led to the discrimination related to First  
Nations children and youth in ISC as identified by the Tribunal. Following the  
work of the Committee and discussion between the parties, recommendations  
will be developed based on the findings to identify actions required to redress  
and prevent the discrimination identified by the Tribunal from recurring.  
[102] The Panel finds this order request is well in line with its previous findings and orders  
to redress and prevent the discrimination identified by the Tribunal from recurring. The Panel  
believes that this could lead to positive outcomes.  
[103] Furthermore, in its Merit Decision and subsequent rulings, the Panel stressed the  
importance of ceasing the mass removal of First Nations children from their homes, families,  
communities and Nations now. The Panel made clear that the discriminatory underfunding,  
especially the lack of funding for prevention including least disruptive measures was a big  
part of the issue. However, it was never the sole issue that led to findings of systemic  
39  
discrimination. Other structural and systemic changes ought to be made for the Panel to  
consider the systemic discrimination is eliminated in the long-term.  
[104] This order request may be responsive to address those structural and systemic  
changes. Further, this order is supported by the evidence and previous findings in this case.  
Finally on this point, the Tribunal has the power to make such an order as it will be further  
explained below.  
(vii) Amendment to 2018 CHRT 4  
Order request # 7. Pursuant to paragraph 413(3) of 2018 CHRT 4, adding  
the following paragraph to the Tribunal’s order in 2018 CHRT 4  
[421.1]: In amendment to paragraphs 410, 411, 420 and 421  
Canada shall, as of April 1, 2022, fund prevention/least  
disruptive measures at $2500 per person resident on reserve  
and in the Yukon in total prevention funding in advance of the  
complete reform of the FNCFS Program funding formulas,  
policies, procedures and agreements. Canada shall fund the  
$2500 on an ongoing basis adjusted annually based on inflation  
and population until the reformed FNCFS Program is fully  
implemented. This amount will provide a baseline for the  
prevention element in the reformed FNCFS Program pursuant  
to paragraph 1 of the Consent Order. Flexibility will be provided  
on the implementation for First Nations governments and  
FNCFS agencies not ready on the start date, which will require  
more time due to exceptional circumstances that will be further  
defined with the parties. Funds will be directed to the First  
Nations and/or First Nations child and family service  
providers(s) responsible for the delivery of prevention services.  
These funds shall be eligible to be carried forward by the First  
Nation and/or First Nations child and family service providers(s).  
[105] The Tribunal will explain its findings and reasons for both prevention funding Order  
requests 7 and 8 under the order request 8 below.  
(viii) Amendment to 2021 CHRT 12  
Order request # 8. Pursuant to 2021 CHRT 12 at paragraph 42(5), adding  
the following paragraph to the Tribunal’s order in 2021 CHRT 12:  
   
40  
[42.1] In amendment to paragraph 42(1), Canada shall, as of  
April 1, 2022, fund prevention/least disruptive measures for  
non-Agency First Nations (as defined in 2021 CHRT 12) at  
$2500 per person resident on reserve and in the Yukon, on the  
same terms as outlined in 2018 CHRT 4 at paragraph 421.1  
with respect to FNCFS Agencies.  
[106] On March 7, 2022, Stephanie Wellman’s provided a very helpful affidavit and  
evidence attached. Upon review of the evidence attached to the affidavit, the Panel finds  
the evidence to be consistent with the affirmed declaration. Stephanie Wellman indicates  
that:  
70. First Nations have long advocated for adequate prevention funding for  
FNCFS. It has been well documented in reports, such as the Wen:de We are  
Coming to the Light of Day, Royal Commission on Aboriginal Peoples filed  
into the record as Exhibit HR-2, and the Joint National Policy Review (2000)  
filed into the record as Exhibit HR-1, that the current funding formula for the  
FNCFS Program inadequately invests in prevention.  
71. Prevention within the FNCFS Program reform context must aim to ensure  
that children remain in their family and First Nation as a priority, with removal  
as a last resort. Prevention, including early intervention policies, must be  
adequately practiced and funded in each community.  
[107] The Panel agrees and has considered the above-mentioned evidence and has made  
multiple findings in that regard, e.g. 2018 CHRT 4:  
[161] The Panel has always recognized that there may be some children in  
need of protection who need to be removed from their homes. However, in  
the [Merit] Decision, the findings highlighted the fact that too many children  
were removed unnecessarily, when they could have had the opportunity to  
remain at home with prevention services.  
[108] Stephanie Wellman also affirms prevention “must be developed and mobilized to the  
standards that communities set and at the levels that communities decide” (March 7, 2022  
Affidavit at para. 71).  
[109] The Panel finds this is consistent with the spirit of its rulings requiring Canada to  
consider the unique and distinct needs of First Nations communities and to avoid a one-size  
fits-all top-down approach. In 2018 CHRT 4, the Panel wrote:  
41  
[163] The Panel has always believed that specific needs and culturally  
appropriate services will vary from one Nation to another and the agencies  
and communities are best placed to indicate what those services should look  
like. This does not mean accepting the unnecessary continuation of removal  
of the children for lack of data and accountability. While at the same time,  
refusing to fund prevention on actuals resulting in, the continuation of making  
more investments in maintenance (emphasis added).  
[110] Stephanie Wellman adds that:  
72. Canada must consider prevention and reform within the context of First  
Nations social determinants of health and wellbeing, including environment,  
education, gender, economic opportunities, community safety, housing and  
infrastructure, meaningful access to culture and land, access to justice, and  
individual and community self-determination, among others.  
73. Prevention must address the structural and systemic reasons for First  
Nations' higher rates of involvement with child and family services. For  
example, housing, water, racism, infrastructure inadequacies, poverty, etc. All  
these impact child and family wellbeing, and prevention must therefore  
encompass the systemic drivers of First Nations’ overrepresentation in child  
and family services. Systemic change must also recognize the colonization of  
First Nations as a fundamental underlying health, social and economic  
determinant.  
74. Prevention must include evidence-based primary, secondary, and tertiary  
culturally based programming situated in a life-course continuum: from pre-  
natal development to birthing, childhood, adolescence, adulthood, as Elders,  
and through death and post-death.  
[111] The Panel entirely agrees with the above. This corroborates the evidence in this case  
and is in line with the Panel’s findings in the Merit Decision and in 2018 CHRT 4:  
[166] It is important to remind ourselves that this is about children experiencing  
significant negative impacts on their lives. It is also urgent to address the  
underlying causes that promote removal rather than least disruptive measures  
(see the [Merit] Decision at paras. 341-347), (emphasis added).  
[112] As explained above and in previous rulings, the Panel made clear that the  
discriminatory underfunding, especially the lack of funding for prevention including least  
disruptive measures was a big part of the issue.  
[113] For example, in 2018 CHRT 4, a prevention/least disruptive measures focused ruling  
by this Tribunal, found (emphasis omitted):  
42  
[93] The fundamental core of Canada’s systemic discrimination is that it fails  
to fund First Nation Child Welfare based on need, including addressing and  
redressing historical disadvantages. The Panel in its decision wrote that it’s  
"...focus is whether funding is being determined based on an evaluation of the  
distinct needs and circumstances of First Nations children and families and  
the communities" (…).  
[119] The Panel finds that the current manner in which prevention funds are  
distributed while unlimited funds are allocated to keep children in care is  
harming children, families, communities and Nations in Canada.  
[150] Canada cannot justify paying enormous amounts of money for children  
in care when the cost is much higher than prevention programs to keep the  
child in the home. This is not an acceptable or sound fiscal or social policy.  
This is a decision made by Canada unilaterally and it is harming the children.  
(…), (see the Decision at paras. 262 and para. 297).  
[180] The Panel reiterates that the best interest of the child is the primary  
concern in decisions that affect children. See, for instance, UNCRC, article 3  
and article 2 which affirm that all children should be treated fairly and protected  
from discrimination. (see also the [Merit] Decision at paras.447-449). The  
Panel found that removing children from their families as a first resort rather  
than a last resort was not in line with the best interests of the child. This is an  
important finding that was meant to inform reform and immediate relief (see  
the [Merit] Decision at paras 341-349).  
[191] The United Nations CESCR recommended that Canada review and  
increase its funding to family and child welfare services for Indigenous  
Peoples living on reserves and fully comply with the Tribunal’s January 2016  
[Merit] Decision. The CESCR also called on Canada to implement the Truth  
and Reconciliation Commission’s recommendations with regards to Indian  
Residential Schools. (see Economic and Social Council, CESCR, concluding  
observations on the sixth periodic report of Canada, March 4223, 2016,  
E/C.12/CAN/CO/6, paras.35-36; See also Affidavit of Dr. Cindy Blackstock,  
December 17, 2016, at para. 33, Exhibit L).  
[114] The Panel entirely agrees with this wise approach to prevention reform proposed by  
the parties in order to generate real and lasting systemic change. Moreover, the evidence  
filed supports this finding.  
43  
[115] As set out in Ms. Wellman’s March 7, 2022 Affidavit:  
76. The per capita costs are based on current prevention services and actual  
spending described in the case studies analyzed by the IFSD. For instance,  
the $2,500 per capita cost is based on a case study of K’wak’walat’si Child  
and Family Services (KCFS), which serves the ‘Namgis First Nation and the  
village of Alert Bay on Cormorant Island off the coast of British Columbia.  
Since 2007, not a single child in ‘Namgis First Nation has been placed in care.  
This success has been largely credited to the introduction of comprehensive  
prevention programming.  
[116] This success story is referenced in Stephanie Wellman’s affidavit and also included  
in the IFSD report #1, Enabling Children to Thrive filed in evidence. The report states that a  
case for prevention is clear from both FNCFS agency cases and from existing research.  
The unanimity from agencies and experts on the importance and need for a focus on  
prevention services and funding to match cannot be overemphasized (pp.93-94). This report  
is relevant and reliable especially given the methodology employed and the expert actors  
involved including the advisory role of the National Advisory Committee.  
[117] Stephanie Wellman’s affidavit continues:  
77. These best practices in prevention are further modelled after Carrier  
Sekani Family Services (CSFS), a large prevention focused organization. The  
agency’s life cycle model (from cradle to grave), informed by its own research,  
extends across health and social programs and services. From intensive  
family preservation to telehealth initiatives, CSFS has empowered its staff to  
innovate, try, fail, and succeed, in support of the people and communities they  
serve.  
78. By providing a budget of $2,500 per capita for prevention, Canada would  
enable service providers and communities to deliver this best practice life  
cycle model of prevention.  
[118] This is also consistent with previous findings by this Panel. In 2018 CHRT 4, the  
Panel said (emphasis omitted):  
[118] The orders are made in the best interests of children and are meant to  
reverse incentives to place children in care.  
[119] The Panel finds that the current manner in which prevention funds are  
distributed while unlimited funds are allocated to keep children in care is  
harming children, families, communities and Nations in Canada.  
44  
[120] The best way to illustrate this is to reproduce Ms. Lang’s answer to the  
AFN’s question: AFN: So if every child in Ontario that’s on First Nations was  
apprehended, INAC would pay costs for those apprehensions correct? (…)  
So my question is, it’s kind of peculiar to me that the federal government has  
no qualms, no concerns whatsoever about costs of taking children into care  
and that’s an unlimited pot, and when it comes to prevention services, they’re  
not willing to make that same sacrifice. To me that just does not make sense.  
Now as a Program director, is that the case where if every child in Ontario  
that’s First Nation on reserve is apprehended tomorrow, you would pay the  
maintenance costs on all those apprehensions? Ms. Lang: for eligible  
expenditures, yes.  
[121] This is a striking example of a system built on colonial views  
perpetuating historical harm against Indigenous peoples, and all justified  
under policy. While the necessity to account for public funds is certainly  
legitimate it becomes troubling when used as an argument to justify the mass  
removal of children rather than preventing it. There is a need to shift this right  
now to cease discrimination. The Panel finds the seriousness and emergency  
of the issue is not grasped with some of Canada’s actions and responses.  
This is a clear example of a policy that was found discriminatory and that is  
still perpetuating discrimination. Consequently, the Panel finds it has to  
intervene by way of additional orders. In further support of the Panel’s finding,  
compelling evidence was brought in the context of the motions’ proceedings.  
[148] 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 overrepresented 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.), (see 2018 CHRT 4 at. paras. 148-  
149 citing the Merit Decision).  
45  
[160] This is the time to move forward and to take giants steps to reverse the  
incentives that bring children into care using the findings in the [Merit]  
Decision, previous reports, the parties’ expertise and also everything gathered  
by Canada through its discussions since the [Merit] Decision.  
[119] The 2018 CHRT 4 immediate relief orders on actuals were made in 2018 after the  
Caring Society and the AFN, urged the Panel to order them. The parties made compelling  
arguments and brought evidence to support it. The Panel indicated that the orders could be  
amended as the quality of information increased. The Panel recognized “that in light of its  
orders and the fact that data collection will be further improved in the future and the NAC’s  
work will progress, more adjustments will need to be made as the quality of information  
increases.” (see 2018 CHRT 4 at para. 237). This is the case here. The evidence in the  
record demonstrates that there is a need to amend the previous prevention orders given  
that a number of issues arose as part of the implementation phase of the 2018 CHRT 4  
orders.  
[120] Moreover, the parties were able to establish that the process for reimbursement to  
actuals was causing hardships for First Nations and First Nations Agencies. Dr. Blackstock  
has affirmed that:  
19. … While the funding at actuals approach has been effective in ensuring  
more prevention services are provided to children, youth, and families, ISC  
determining eligible prevention expenses has been problematic particularly  
given the lack of social work expertise within the department.  
[121] Further, Dr. Blackstock also affirmed that “the “request-based” nature of the actuals  
process has also posed an obstacle for some FNCFS Agencies, who may lack capacity to  
make the request.” (March 4, 2022 affidavit at para. 19). The Tribunal finds this was  
previously demonstrated in these proceedings (see for example, 2020 CHRT 24 at. paras  
34-36).  
[122] Moreover, recent relevant and reliable evidence contained in the IFSD report #2,  
Funding First Nations child and family services (FNCFS): A performance budget approach  
to well-being, July 31, 2020 found at p. 29 that:  
The significant 48% increase in FNCFS program spending in 201819 is  
attributed to the CHRT-mandated payments (the FNCFS program spending  
46  
is projected to decrease by 9% in 2019–20) …. Case study analysis suggests  
that the CHRT payments have had immediate impacts on programming and  
operations. The supplementary investments, however, are one-time  
payments and not guaranteed beyond the next fiscal year. This reality puts  
progress on prevention programming and practices at risk.  
[123] The above also supports the need for greater prevention funding as per the order  
requests including the eligibility for these funds to be carried forward by the First Nation  
and/or First Nations Child and Family Service providers(s).  
[124] Furthermore, Dr. Blackstock affirms that “[g]reater “up-front” funding will allow  
FNCFS Agencies to focus their energies and resources on program development and  
delivery.” (March 4, 2022 affidavit at para. 19).  
[125] The Panel finds the evidence supports the need for a shift from the “request-based”  
nature of the actuals process where ISC determines eligible prevention expenses to a  
comprehensive community-level programming. The implementation of these orders will  
provide families with supports they need and in providing First Nations, FNCFS Agencies  
with greater resources “up front” to begin addressing the structural risk factors that contribute  
to the over-representation of First Nations children in care. This will also provide greater  
funding to First Nations without FNCFS Agencies.  
[126] The IFSD report also supports this shift.  
[127] The Panel agrees and is really pleased with these order requests. The parties’ hard  
work will generate real change for First Nations children and youth. This responds to the  
Tribunal’s 2018 call for giant steps towards a shift.  
[128] As indicated in Stephanie Wellman’s March 7, 2022 Affidavit:  
75. The $2,500 per capita level of prevention funding is based on the case  
studies conducted by the IFSD in its Phase 1 report, which resulted in two  
fundamentally different approaches to prevention programming. This ranged  
from a First Nation with minimal prevention programming ($800) to  
comprehensive community-level programming targeted to the entire  
community, operating on a prevention basis ($2,500). The $2,500 per capita  
amount is to be considered the level necessary for agencies or communities  
to reasonably deliver best practices in prevention.  
47  
[129] As noted in IFSD report # 2, Funding First Nations child and family services (FNCFS):  
A performance budget approach to well-being at p. 248:  
… In its Phase 1 study, [Enabling First Nations Children To Thrive], December  
15, 2018, that costed the FNCFS system, IFSD estimated (based on actual  
models) that per capita expenditures for prevention should range from $800  
to $2,500 across the entire community. At $800, programming is principally  
youth-focused and may not be CFS focused. At $2,500 per person, a full  
lifecycle approach to programming can be possible with linkages between  
health, social and development programming. …  
The First Nation’s current per capita CFS expenditure estimates align to  
previous findings for communities unaligned to an FNCFS agency (ranging  
from $500 to $1,000 based on the population source). As the First Nation  
contemplates its next steps in CFS, it may wish to consider increasing its per  
capita budget to expand its resources for program and service delivery. IFSD  
estimated that the average cost of a child in care to be $63,000 per year. With  
opportunities for prevention program that have demonstrated positive results,  
there are various options for supporting the well-being of children, families and  
communities through wrap-around holistic services.  
[130] As noted in IFSD report #1, Enabling First Nations Children To Thrive these costs  
would be on-going in nature and subject to changes in population and inflation. Per person  
spending on prevention should range from $800$2,500 with total annual costs of $224M  
to $708M (p. 10).  
[131] The report provides further details at pages 87-88:  
Prevention was the focus of experts and agencies, and consistently defined  
as the most significant funding gap that agencies are facing. The gap in  
prevention funding is a challenge and is connected to the system’s current  
funding structure that incentivizes the placement of children in care.  
Shifting to a prevention-focused approach will require increased investment  
and a change in funding structure, such that agencies have the ability to  
allocate resources to meet community need. To cost-estimate an increase in  
prevention funding for FNCFS agencies, benchmarks of current prevention  
spending were identified and a range of per capita investments in prevention  
were defined: $800, $2,000 and $2,500.  
The per capita costs are based on current prevention services and actual  
spending described in case studies. The prevention cost estimates are  
premised on the assumption that prevention should target the entire  
population in the agency’s catchment and not only the child population served.  
48  
[132] Moreover, as defined in 2021 CHRT 12, Non-Agency communities also form part of  
the Tribunal’s previous orders. The Panel agrees that they should also benefit from the  
increased ongoing prevention funding as detailed in order request # 8. As explained above,  
this will greatly benefit their communities.  
[133] The parties were successful in demonstrating the need for the requested orders # 7  
as modified and 8. The Panel entirely agrees with the order requests # 7 & 8 and finds they  
are justified and supported by the evidence. Furthermore, the Tribunal has the authority to  
make those orders as it will be explained below.  
(ix) Establish the End Date for Compensation  
Order request # 9. Pursuant to 2019 CHRT 39 at paragraphs 245, 248, 249  
and 254, establish March 31, 2022, as the end date for compensation for  
removed First Nations children and their parents/caregiving grandparents.  
[134] In her March 4, 2022, affidavit, Dr. Blackstock affirms that:  
15. [o]n the strength of these immediate measures, which are to be  
implemented pursuant to the consent order requested on this motion starting  
on April 1, 2022, and assuming there is no disruption or reduction in current  
prevention service levels due to reductions in funding as a result of the  
implementation of these measures (which senior officials at ISC have assured  
me will not occur), I believe that the discrimination will be alleviated to a level  
whereby March 31, 2022, can be reasonably fixed as the end-date for FNCFS  
Program compensation eligibility pursuant to the Tribunal’s compensation  
orders.  
[135] Ms. Wellman affirms in her March 7, 2022, affidavit that:  
17. It became apparent to the AFN that some commitments the Parties were  
considering for long-term reforms did not have to wait until April 2023 and  
could be implemented. At the AFN’s request, the Parties agreed to seek the  
implementation of a number of immediate measures by way of a consent  
proceeding before this Panel that would be implemented in April 2022.  
Secondly, it was apparent that the Parties needed to address some  
outstanding items that were of concern to this Panel before compensation  
could be paid.  
 
49  
19. [t]he Parties agreed to immediate measures to redress the ongoing  
discrimination found by this Panel throughout this proceeding, for amendment  
to this Panel’s order regarding funding for prevention in 2018 CHRT 4, and for  
an end date for compensation, as contemplated within 2019 CHRT 39. These  
would form the terms of a consent order.  
[136] Based on Canada’s consent to the orders outlined herein, the Parties are of the view  
that the factual basis on which the Compensation Decision was made will significantly  
change as of April 1, 2022, due to increased amounts of prevention funding being made  
available to First Nations communities. Moreover, resolving the items at this time will  
address any existing barriers to the compensation process and will clear the way for the  
payment of compensation.  
[137] Furthermore, Dr. Gideon affirms in her March 4, 2022, affidavit that:  
51. [t]his order would set the end date for the period within which the removal  
of a child would give rise to a compensation claim as March 31, 2022. The  
justification for that end date rests on the seven measures described above to  
take effect on April 1, 2022.  
52. The immediate measures identified in the order comprise very significant  
investments made in line with the parties’ recommendations and evidence  
and are critical steps supporting the transition to full reform as outlined in the  
Agreement-in-Principle.  
[138] The parties submit that given the evidence-based investments made and their  
emphasis on preventing children from entering care and supporting them once they leave  
care justify an end date for compensation of March 31, 2022.  
[139] Furthermore, the Panel finds that the success stories discussed above where similar  
measures to the measures included in the consent orders in this ruling have been  
implemented and resulted in no child being taken into care. This is a very compelling  
argument in favour of the requested order.  
[140] Moreover, for the particular victims of discrimination under the FNCFS Program, the  
Tribunal set the eligibility period as January 1, 2006 to a date ordered or agreed upon, as  
the discrimination under the FNCFS Program was ongoing. The Tribunal set the following  
parameters for an “end date” for compensation for the particular victims of the discrimination  
under the FNCFS Program: (a) the Tribunal, informed by the Parties and evidence, makes  
50  
a determination that the unnecessary removal of First Nations children from their homes,  
families and communities as a result of the discrimination found in this case has ceased; (b)  
the Parties agree on a settlement agreement for effective and meaningful long-term relief;  
or (c) the Tribunal ceases to retain jurisdiction and beforehand amends 2019 CHRT 39 [the  
Compensation Decision] (at paras. 245, 248, 249 and 254).  
[141] The Panel does not make a finding as part of this ruling that all the systemic  
discrimination explained in the Tribunal’s findings has ceased even if the orders in this ruling  
are giants steps forward in achieving the elimination of the systemic discrimination.  
[142] In a recent ruling, the Tribunal reiterated some of its previous findings and wrote in  
2021 CHRT 41:  
[56] Nevertheless, it may be less compelling for Cabinet and Treasury  
Board to approve authorities if there is a belief that other programs may be  
responsive to needs. However, to date while efforts are made to collect  
information, the information remains unclear on the elimination of the lack of  
coordination found that impacts service delivery. There is insufficient evidence  
about different programs offered to First Nations children and families on-  
reserve and how each really address the real needs of children and families.  
In other words, the Tribunal is unaware of the existence of a completed  
thorough analysis of all programs on-reserve, how they interrelate, intersect  
and ensure that there are no gaps in services to First Nations children. There  
is insufficient evidence to date to establish that the gaps in services to First  
Nations children and families on-reserve or ordinarily on reserve have all been  
addressed and accounted for by other programs when the FNCFS Program’s  
authorities do not include items or place a funding cap. The Tribunal raises  
this point to illustrate that referring to other programs when a legitimate  
request is made for service delivery may not be sufficiently responsive to the  
Tribunal’s orders as it will be explained below.  
[58] … Canada was found liable and was ordered to cease the discrimination  
that is still ongoing until long term reform is implemented.  
[63] Further, the Tribunal ordered a complete reform of the FNCFS Program  
to cease and desist from the discriminatory practice found in the decision  
including to move away from the lack of coordination of federal programs  
51  
causing gaps, denials and delays in services to First Nations children and  
families.  
[143] The evidence in this motion demonstrates there is still work to be done to address  
the findings above.  
[144] However, the Panel agrees with the parties that the consent orders in this ruling will  
ensure the unnecessary removal of First Nations children from their homes, families and  
communities as a result of the discrimination found in this case will cease given the  
implementation date of April 1, 2022.  
[145] Since the beginning in the Merit Decision and onward, the Panel has focused its  
orders on adequate, needs-based, culturally appropriate services and sufficient funding  
informed by the evidence. The Panel has always emphasized the paramount need to stop  
removals of children from their homes, families and communities. When removals were  
necessary, the Panel stressed the importance of keeping the children in their communities  
and Nations.  
[146] The Panel previously found that removing children from their homes, families,  
communities and Nations destroys the Nations’ social fabric leading to immense  
consequences, it is the opposite of building Nations.  
[147] The Panel also previously found that the lack of prevention perpetuates the historical  
disadvantage and the legacy of residential schools already explained in the Merit Decision  
and rulings. It incentivizes the removal of children rather than assisting communities to stay  
together.  
[148] In 2019 CHRT 39 [the Compensation Decision] the Panel found:  
[163] …  
Secondary analysis of the Aboriginal data in CIS-98 revealed  
that although Aboriginal children were less likely to be reported  
to child welfare authorities for physical or sexual violence they  
were twice as likely to experience neglect (Blackstock, Trocme  
& Bennett, 2004). When researchers unpacked neglect by  
controlling for various care giver functioning and socio-  
demographic factors they determined that the key drivers of  
52  
neglect for First Nations children were poverty, poor housing,  
and substance misuse (Trocme, Knoke & Blackstock, 2004). It  
is important to note that two of these three factors are arguably  
outside of the domain of parental influence poverty and poor  
housing. As they are outside of the locus of control of parents is  
unlikely that parents will be able to redress these risks in the  
absence of social investments targeted to poverty reduction and  
housing improvement. The limited ability for parents to influence  
the risk factors can mean that their children are more likely to  
stay in care for prolonged periods of time. This is particularly a  
concern in regions where statutory limits on the length of time a  
child is being put in care are being introduced. If parents alone  
cannot influence the risk and there are inadequate social  
investments to reduce the risk children can be removed  
permanently. The third factor, substance misuse, is within the  
personal domain for change but requires access to services.  
Overall, CIS- 98 results suggest that targeted and sustained  
investments in neglect focused services that specifically  
consider substance misuse, poverty and poor housing would  
likely have a positive impact on the safety and well-being of  
these children. …  
[164] … First Nations children and families are harmed and penalized for  
being poor and for lacking housing. Those are circumstances that are most of  
the time beyond the parents’ control.  
(emphasis omitted).  
[149] The above findings demonstrate the need for culturally appropriate and safe  
prevention services that address the key drivers resulting in First Nations children entering  
care and the need for adequately funded and sustainable prevention services that are  
tailored to the distinct needs of First Nations children, families and communities.  
[150] The elimination of the mass removal of children is achievable when a real shift is  
made from reactive services that bring children into care to preventive services, especially  
when prevention services are developed and delivered by the First Nations children’s  
respective First Nations communities. The evidence provided by the parties demonstrates  
that this shift will be made possible with the April 1, 2022 implementation of increased  
prevention funds provided to First Nations and First Nations child and family service  
providers across Canada.  
53  
[151] Finally, the consent orders discussed above are in line with the Panel’s findings and  
orders. The Panel believes the full and timely implementation of those orders will  
significantly improve the lives of First Nations children, families and communities.  
[152] As it will be explained in the next section, the Tribunal has the authority to make such  
an order.  
IV.  
Legal Framework  
[153] In considering the Tribunal’s powers to make the requested orders, the Tribunal relies  
on the following:  
This Tribunal’s January 26, 2016 order (2016 CHRT 2 [Merit Decision])  
ordered Canada to cease its discriminatory practices and reform the FNCFS  
Program to reflect the findings in that decision.  
This Tribunal’s April 26, 2016 order (2016 CHRT 10) required Canada to  
immediately take measures to address the findings in its January 26, 2016  
decision.  
This Tribunal’s September 14, 2016 order (2016 CHRT 16) required Canada  
to update its policies, procedures and agreements to comply with the  
Tribunal’s findings in its January 26, 2016 decision.  
This Tribunal’s understanding in making its September 14, 2016 order (2016  
CHRT 16) that reform of Canada’s policies, procedures and agreements to  
comply with the Tribunal’s findings in its January 26, 2016 decision would be  
achieved over the longer term, with certain interim measures being put in  
place until that time.  
The principles set out for immediate relief in the Tribunal’s February 4, 2018  
order (2018 CHRT 4).  
All other rulings made by this Panel in this case.  
[154] In light of the above and consistent with the Tribunal’s detailed findings in the Merit  
Decision which included other related provincial/territorial agreements and other funding  
methods, all subsequent rulings and the Tribunal’s approach to remedies and, pursuant to  
section 53(2) of the CHRA, the Panel finds it has statutory authority to make the consent  
orders requested by the AFN, the Caring Society and Canada and agreed to by the COO,  
the NAN, the Commission and Amnesty International as it will be further explained below.  
 
54  
[155] The Panel previously reviewed Canada’s responsibility to remedy the discriminatory  
practice in this case in 2018 CHRT 4:  
[215] In its [Merit] Decision and rulings, the Panel found that Canada was  
responsible for funding to cover the costs of providing family and child welfare  
services to First Nations on reserves. It found that this responsibility included  
funding to cover the costs of providing services to First Nations children on  
reserves in need of care, in a manner that was culturally appropriate and  
substantively equal to the manner that the services were provided to non-First  
Nations children in Canada. It found that the basis upon which Canada was  
calculating and providing the funding was flawed in various respects, resulting  
in insufficient funding (i.e. underfunding) to provide the services in the manner  
hereinbefore described, and to meet the needs of First Nations children on  
reserve. It found that Canada was underfunding the services now being  
requested by the Moving Parties to be paid on an actual cost basis as  
immediate relief in this case. It found that Canada knew that it was  
underfunding the services and that the underfunding of prevention services,  
in particular, while Canada fully funded maintenance and apprehension  
expenses, created a perverse incentive to remove far too many First Nations  
children on reserve from their homes and families. It found that this  
underfunding of services was one of the discriminatory practices engaged in  
by Canada in this case, and that Canada needed to take immediate steps to  
eliminate this discriminatory underfunding and to fully reform the Program in  
the longer term.  
[216] Canada has accepted the Tribunal's [Merit] Decision and rulings that it  
is discriminating against First Nations children by underfunding the services  
and that both immediate steps and longer-term reform need to be undertaken  
to eliminate this discriminatory underfunding of services to First Nations  
children on reserve.  
[217] All of the parties agree that the Tribunal’s remedial powers are to be  
interpreted broadly to give effect to the objectives of the CHRA in eliminating  
discrimination when there has been a determination by the Tribunal that  
discrimination has occurred and an order to cease has been made, in order  
to ensure that the discrimination does not continue.  
[156] Furthermore, the Panel previously wrote in 2018 CHRT 4:  
[387] It took years for the First Nations children to get justice. Discrimination  
was proven. Justice includes meaningful remedies. Surely Canada  
understands this. The Panel cannot simply make final orders and close the  
file. The Panel determined that a phased approach to remedies was needed  
to ensure short term relief was granted first, then long term relief, and reform  
which takes much longer to implement. The Panel understood that if Canada  
took 5 years or more to reform the Program, there was a crucial need to  
55  
address discrimination now in the most meaningful way possible with the  
evidence available now.  
[157] The Panel also wrote in 2016 CHRT 10 that:  
[15] … [C]onstructing effective and meaningful remedies to resolve a complex  
dispute, as is the situation in this case, is an intricate task. Indeed, as the  
Federal Court of Canada stated in Grover v. Canada (National Research  
Council) (1994), 1994 18487 (FC), 24 CHRR D/390 (FC) at para. 40  
[Grover], “[s]uch a task demands innovation and flexibility on the part of the  
Tribunal in fashioning effective remedies and the Act is structured so as to  
encourage this flexibility.  
[16] The Panel also said that aside from orders of compensation, this flexibility  
in fashioning effective remedies arises mainly from sections 53(2)(a) and (b)  
of the CHRA. Those sections provide the Tribunal with the authority to order  
measures to redress the discriminatory practice or prevent the same or similar  
practice from occurring in the future [see s. 53(2)(a)]; and to order that the  
victim of a discriminatory practice be provided with the rights, opportunities or  
privileges that are being or were denied [see s. 53(2)(b)].  
[158] In the initial Merit Decision, the Panel indicated its approach once a complaint is  
substantiated:  
[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 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 109 (SCC), [1987] 1 SCR 1114 at p. 1134; and,  
Doucet-Boudreau at paras. 25 and 55).  
56  
[159] The Panel further addressed its remedial authority in 2018 CHRT 4:  
[31] The Panel provided an overview of the Tribunal’s broad and flexible  
remedial authorities in 2016 CHRT 10 (paras. 10-19) which was not judicially  
reviewed.  
[32] Moreover, in making its orders the Tribunal is operating under its Statute  
that permits it to address past discriminatory practices, and prevent future  
ones from occurring. This is provided for in the Act under section 53 (2) (a):  
that the person 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, including (...).  
(emphasis omitted).  
[160] As noted in 2018 CHRT 4 at paragraph 40, “[t]he Tribunal made extensive findings  
in [the Merit Decision] and provided very detailed reasons as to how it arrived at its findings.”  
As noted in the Merit Decision, [t]hose findings demonstrate that “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” (Merit Decision at para. 458). Moreover, [t]he Tribunal also found that  
“[t]he 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” (2016 CHRT 2 at para. 458, emphasis added). Later, “[t]he Panel specifically  
mentioned that reform must address the findings in the [Merit] Decision. This case is about  
underfunding, policy, authorities and, the National Program that were found to be  
discriminatory” (see 2018 CHRT 4 at para. 40). The lengthy Merit Decision is authoritative  
in this case and the findings referred to above can be found in the Merit Decision and will  
not be repeated here. The Tribunal outlines the above to support that it has authority to issue  
this Consent Order since the subject matter of this Consent Order forms part of the evidence  
and findings in this case.  
[161] Moreover, 2018 CHT 4 provides that:  
57  
[34] Section 53(2)(a) of the CHRA gives this Tribunal the jurisdiction to make  
a cease-and-desist order. In addition, if the Tribunal considers it appropriate  
to prevent the same or a similar practice from occurring in the future, it may  
order certain measures including the adoption of a special program, plan or  
arrangement referred to in subsection 16(1) of the CHRA (see National  
Capital Alliance on Race Relations (NCARR) v. Canada (Department of  
Health & Welfare) T.D.3/97, pp. 30-31). The scope of this jurisdiction was  
considered by the Supreme Court of Canada in CN v. Canada (Canadian  
Human Rights Commission), 1987 109 (SCC), [1987] 1 SCR 1114,  
[Action Travail des Femmes]).  
[162] Subsequently, the Panel noted in 2018 CHRT 4 that:  
[51] Indeed, the Supreme Court in Quebec (Commission des droits de la  
personne et des droits de la jeunesse) v. Communauté urbaine de Montréal,  
2004 SCC 30 () has also directed human rights tribunals to ensure that  
their remedies are effective, creative when necessary, and respond to the  
fundamental nature of the rights in question.  
[163] Furthermore, the Panel previously indicated in 2018 CHRT 4 that:  
[53] … it may deem it necessary to make further orders. It would be unfair for  
the Complainants, the Commission and the interested parties who were  
successful in this complaint, after many years and different levels of Courts,  
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