The Ontario Human Rights Commission is calling on the provincial government and Ontario Association of Children’s Aid Societies to address the over-representation of Black and Indigenous children in foster care in Ontario.
A few of the 25 recommendations the OHRC report makes to the Ontario Government and Children’s Aid Societies include: implementing the UN Declaration on the Rights of Indigenous Peoples and the Truth and Reconciliation Commission’s Calls to Action, requiring all CASs to collect race-based data and “poverty-related information” and amending the Human Rights Code to add “social condition” as a protected ground of discrimination.
The findings help shed light on why Indigenous and Black adults are over-represented in the criminal justice system, says Ontario human rights chief commissioner Renu Mandhane.
“In terms of the criminal justice system, I think what this really points [to is the] concept of the ‘pipeline to criminalization’ and the kind of risk factors that Indigenous and Black children start to face so early on in their lives as children that can ultimately lead to criminalization.”
The report states that contributing factors to the findings are likely poverty, lack of adequate services and inter-generational trauma.
The report is the product of a public interest inquiry launched in 2016, with data collected from the CASs under s. 31 of the Ontario Human Rights Code, which entitles it to conduct an inquiry if it’s in the public interest. More than 40 per cent of the CASs did not document the backgrounds or Indigenous identities of more than one in five children served by the agency, so the race-based data was incomplete. The Ontario government is planning a directive to require CASs to collect race-based data on their children.
The OHRC was prompted to undertake the study, partly because of complaints from Ontarians that Children’s Aid Societies were engaging in discrimination, says Mandhane. But the available data was inconclusive about whether institutional bias or discrimination exists among the Children’s Aid Societies.
“Unfortunately, because we don't have that data, we can't do that kind of deeper analysis,” she says. “Our hope is that once that data is collected, we might have better data to really analyze whether there are the kinds of disparities that would lead to possible . . . systemic discrimination.”
The findings of the report are “sad but not surprising,” says Anthony Morgan, a lawyer at Falconers LLP. Morgan spent two years at the African Canadian Legal Clinic, where he was involved in pushing Ontario’s Children’s Aid Societies to implement race-based disaggregated data and greater employment equity for black workers.
“You find that where there are chronic rates of unemployment and underemployment and poverty we have heightened contact with child welfare services,” he says. “And because poverty and unemployment are both racialized within Ontario and across Canada and beyond, it's not surprising.”
The OHRC’s report states that the data presented is not conclusive of discrimination and bias on the part of CASs and their workers but that the findings “raise serious concerns” about whether “policies, processes, decision-making practices and organizational cultures may adversely affect Indigenous and Black families and potentially violate the [Human Rights] Code.”
The OHRC’s report cited U.S. studies that illustrate how agency and worker bias could affect child welfare decisions. One factor was “negative assumptions about poverty, race and risk,” where poverty and cultural differences are confused with neglect, said the report.
Also, “researchers have criticized risk assessment tools, standards and service delivery practices because they reflect white, western, Christian notions of acceptable child rearing, and may not be applicable to Indigenous and Black families,” said the report.
“So, it's not just socio-economic conditions, but the stereotypes that end up getting grafted on to these Black families and Indigenous families as being unable to take care of their children and not only do those stereotypes and preconceived notions form and attach to these families, but then they end up getting transferred into how child welfare service workers operate,” Morgan says.
Those who have been taken from their parents and placed in care have higher rates of youth homelessness, lower levels of post-secondary education, lower income, higher unemployment, higher risk of criminal behaviour and higher likelihood of chronic health problems, said the report.
The Law Society of Ontario’s Action Group on Access to Justice, which has studied the over-representation of Indigenous children in the child welfare system, has learned through their consultations that being in care creates long-term trauma, mistrust of institutions and cultural disconnection and loss of identity.