Good news! The Reform of Child and Family Services has begun since an Agreement-in-Principle on long-term reform was reached between the Assembly of First Nations (AFN), the First Nations Child and Family Caring Society of Canada and the Government of Canada in December 2021. In terms of the reform of the First Nations Child and Family Services (FNCFS) program and the major capital for FNCFS and Jordan’s Principle, Canada commits to funding these proposed reforms in the amount of $19.807 billion over the first five years. As a direct result of the Agreement-in-Principle on long-term reform, in April 2022, FNCFS agencies and communities received increased investments for prevention services, post-majority care services and First Nations Representative services.
The AFN and First Nations Child and Family Caring Society of Canada have overseen the implementation of the Canadian Human Rights Tribunal (CHRT) orders and the development of the reform of the FNCFS program and Jordan’s Principle through the National Advisory Committee on child and family services and the Consultation Committee on Child Welfare. They are working with the Institute of Fiscal Studies and Democracy (IFSD)* to help support the long-term reform.
*IFSD is a Canadian think tank that focuses on public finance and state institutions.
The FNCFS Reform: a recap
The IFSD has now entered its third phase, which includes researching, modelling, and implementing the funding and performance measurement approach that the IFSD developed in their previous phases of work.
Phase 1: Enabling First Nations Children to Thrive
In 2018, IFSD produced its first phase study in which a bottom-up costing of the FNCFS system identified and costed gaps in the system and analyzed determinants of FNCFS agency costs.
Phase 2: FNCFS: A Performance Budget Approach to Well-Being
A second study was completed and proposed a new funding mechanism for FNCFS as well as Measuring to Thrive, an updated framework on child, family, and community well-being.
Phase 3
In this phase, 10 FNCFS agencies and 10 First Nations asserting jurisdiction under the Act, representing a diversity of contexts and experiences, will be supported to implement the new funding approach, as well as the Measuring to Thrive performance measurement framework. The results of phase 3 will inform the final settlement agreement on long-term reform, as well as support transition for First Nations and FNCFS service providers to the Reformed CFS Funding Approach.
As for the FNCFS long-term reform, discussions are still on going to conclude a Final Settlement Agreement, which we expect to be reached sometime in late summer or early fall, if all goes well.
Where it started
In 2007, the AFN and First Nations Child and Family Caring Society of Canada filed a joint complaint to the CHRT alleging that Canada was discriminating against First Nations children and families in the funding of the FNCFS program and due to deficiencies in the application and implementation of Jordan’s Principle.
The discrimination took two forms:
- First, the government denied proper funding to child welfare agencies responsible for the protection and well-being of First Nations children. This denial of proper funding has directly contributed to the epidemic numbers of First Nations children in the communities being removed from their homes and communities and placed in state care.
- Second, the federal government failed to honour Jordan’s Principle. In breach of Jordan’s Principle, the government has delayed or denied services and products to tens of thousands of First Nations children living both in and outside the communities.
In January 2016 the CHRT upheld the complaint (2016 CHRT 2) and ordered Canada to work with the parties to immediately overhaul the FNCFS Program and fully implement Jordan’s Principle. The CHRT, through a subsequent ruling order (2019 CHRT 39) awarded compensation for victims of discrimination in FNCFS and Jordan’s Principle and several class actions subsequently followed*.
*This case pursued compensation for systematic discrimination against certain First Nations children by the Government of Canada since 1991. Sotos Class Actions is prosecuting this case in collaboration with Kugler Kandestin LLP in Montreal and Miller Titerle + Co in Vancouver. Go to https://www.sotosclassactions.com/cases/first-nations-youth/ for more information on the class action and to http://www.fnchildcompensation.ca/ for references.
To address these complaints for compensation and various class actions, a second Agreement in Principle on compensation was signed on December 31, 2021, wherein Canada agreed to provide $20 billion to settle the class complaints. Since then, the parties have concluded a Final Settlement Agreement on compensation and are now seeking approval of it from both the CHRT and the Federal Court.
What is Jordan’s Principle?
Jordan’s Principle is a legal requirement on the federal government to provide First Nations children with necessary services and products regardless of which level of government must eventually pay for those products or services. Jordan’s Principle is designed to ensure that funding disputes between levels of government (federal, provincial, or territorial) do not result in the delay or denial of necessary services or products to First Nations children.