Manitoba woman's lawsuit alleges discrimination against off-reserve Indigenous kids in care

An Ojibway woman living in Winnipeg is spearheading a proposed class-action lawsuit against the attorney general of Canada and the government of Manitoba on behalf of off-reserve First Nations, Inuit and Métis children in the care of child and family services.

Amber Fontaine, from Pine Falls, Man., initiated the lawsuit based on her own experiences in care, and after a $20-billion agreement was reached last month to compensate young people living on-reserve harmed by Canada's discriminatory child welfare system.

Fontaine's lawsuit alleges the two levels of government have systemically discriminated against Indigenous children and youth by failing to equitably provide child welfare services for those who live off-reserve, and failing to provide access to critical services and products in a timely manner.

"Canada has expressly chosen not to fund child and family services for Indigenous children residing off-reserve, having treated these children and families as already assimilated and, therefore, the responsibility of the province," according to her statement of claim, filed with Manitoba Court of Queen's Bench on Friday.

The province of Manitoba, meanwhile, has underfunded preventative services for kids living off-reserve, while maintaining policies that support removing kids from their homes and putting them in care, the lawsuit alleges.

"The net effect of this discriminatory approach is that Indigenous children who reside off-reserve often must be apprehended before they can access required services," the lawsuit said.

That's the the same "perverse incentive" a 2016 Canadian Human Rights Tribunal ruling said the federal government needed to address by overhauling the on-reserve First Nation child welfare system, according to the lawsuit.

It argues that children living off-reserve "have been removed from their homes as a first resort, rather than a last resort," which accounts for the "egregious overrepresentation" of Indigenous children in care in Manitoba.

Of the nearly 10,000 children in care in Manitoba, more than 90 per cent are Indigenous, according to the most recent annual report available from Manitoba Families.

The government of Manitoba says it would be inappropriate to comment on Fontaine's suit while it's before the courts.

CBC News requested comment from the attorney general of Canada on Tuesday morning, but didn't receive a response by the afternoon.

Class action

Fontaine is also asking for an order to have her lawsuit certified as a class action, but that hasn't yet been approved.

It comes after the federal government, the Assembly of First Nations and plaintiffs in two class-action suits finalized an agreement in July to compensate some Indigenous families impacted by child apprehension, but those were people who were removed from their families living on-reserve.

Indigenous Services Canada said at the time that $20-billion settlement was the largest in Canadian history. 

Fontaine, now 35 years old and living in Winnipeg, was seized by Child and Family Services at the age of six, her lawsuit says. She spent roughly seven months in the care of three different white families.

In her time in foster care, Fontaine says she was prevented from connecting with her culture, had her head shaved when she had lice instead of being given specialty shampoo, and was called "Blackie" by a foster father — a pejorative term referring to her skin colour, the court documents say.

If approved as a class-action, Fontaine's lawsuit is seeking individual compensation on behalf of three different groups:

• First Nations, Inuit and Métis children and youth who were removed from their off-reserve homes between Jan. 1, 1992, and Aug.19, 2022.
• Children who did not receive an essential public service or faced delays in accessing such services during that period.
• Caregiving parents or grandparents of the children covered by the agreement who may also be eligible for compensation.