No one disputes it: the statistics are stark. About eight per cent of the kids in Canada are Indigenous, yet more than half of the children in Canada’s child welfare system are Indigenous.
But can federal and provincial governments be sued for the overrepresentation of Indigenous kids in the off-reserve child welfare system?
That’s the dispute now unfolding in courts countrywide — with mixed results.
For its part the federal government says no, and British Columbia’s top court recently agreed, dismissing a claim against Canada just as lawyers for Indigenous youth in Ontario prepared to appeal a lower court decision they argue “will be a stain on this province’s history” if allowed to stand.
“It’s wrong in law, it’s wrong on the facts and it’s wrong in policy,” said David Sterns of Sotos LLP.
In that case, brought by plaintiffs named only as B.M. and C.A., the judge dismissed a lawsuit against Canada and Ontario, saying the overrepresentation of Indigenous kids in the province’s system “does not itself convey wrongful state conduct” and instead “may equally demonstrate a high level of care rather than any harmful treatment of the proposed class members.”
“The policies in issue in the present claim, although called the ‘Millennial Scoop’ by the plaintiffs, do not repeat the oppressions of a past era,” wrote Ontario Superior Court Justice Edward Morgan.
The ruling got First Nations leaders’ attention, prompting the Anishinabek Nation, Chiefs of Ontario and Nishnawbe Aski Nation political organizations to intervene in an appeal heard this week in Toronto.
“That reasoning, in my view, is very highly problematic and very dangerous,” said Linda Debassige, grand council chief of the Anishinabek Nation, which advocates for 39 communities.
“It’s to me in the same light that Indian residential school denialism exists. It’s a dangerous pathway to limit the availability of justice for First Nations children and families, specifically, in this setting. The oppression is real. It still exists.”
Some advocates call the ongoing mass removal of Indigenous kids from their families the Millenium Scoop, connecting today’s child welfare system to residential schools and the Sixties Scoop.
Proposed lead plaintiffs B.M. and C.A. are First Nations and Inuit respectively, and their lawyers’ appeal filings call the judge’s reasoning misguided and patronizing.
In its appeal argument, Canada says it “acknowledges the important societal concerns raised” but maintains these are complex policy issues that lay outside judges’ expertise.
“The claim is not grounded in any specific law or policy, but rather it seeks to subject to judicial scrutiny the entire provincial child welfare system,” Canada argues.
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A proactively disclosed May 2025 federal briefing note says, “Consistent with its belief that we all have a role to play in reconciliation, Canada has taken the position that some claims against Canada should be dismissed, given the provincial control over child welfare.”
Debassige denounced such talk as “Canada just wiping their hands clean” to create a “jurisdictional pinball vacuum.”
The Ontario appeal joins a complex constellation of cases filed after Ottawa agreed to a $23.4-billion settlement with First Nations children and families harmed in the on-reserve child welfare system.
That settlement stemmed from a landmark 2016 Canadian Human Rights Tribunal finding that Canada racially discriminated against First Nations youth on-reserve and in Yukon by chronically underfunding child and family services.
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Youth living off-reserve when apprehended are not included, however, and their lawyers are getting dizzyingly uneven results.
Last year, the Federal Court of Appeal dismissed a proposed national class action, the Stonechild case, because Canada was the only defendant and provinces were excluded. Lawyers are seeking leave to appeal to the Supreme Court of Canada.
Since then, child welfare survivors filed lawsuits in six provinces.
A claim in Quebec was authorized to proceed. Manitoba consented for a case to proceed. The B.C. Court of Appeal late last month dismissed a claim against Canada but allowed a lawsuit against B.C. to proceed.
Factor in the Ontario case, and the jumble of inconsistent outcomes means Canada’s top court may have to weigh in, said Sterns.
“We think that Canada needs to remain in the case. They are a necessary party,” he said.
“They have a lot to answer for when it comes to Indigenous child welfare, both on and off reserve, and we think this is an issue that is ripe to be decided by the Supreme Court of Canada.”
As for Ontario, the province said on appeal it recognizes the deeply felt impacts experienced by Indigenous children and families but still opposes the lawsuit.
“This proposed class action is a sweeping inquiry into the child welfare, health care and education sectors in Ontario,” the filing says.
Ontario calls the claims “imprecise,” comprising many thousands of unique interactions with independently suable Children’s Aid Societies.
