Jordan’s Principle arose out of the tragic death of Jordan River Anderson, a 5-year old boy from Norway House Cree Nation in Manitoba in 2005.1 Jordan was born with complex medical needs and his family and community did not have the resources needed to treat his condition, so Jordan was placed in the care of the provincial government. The doctors treating Jordan decided, after two years in the hospital, that he could be cared for in a family home with specialized supports. Due to jurisdictional disputes between the provincial and federal governments over funding for these supports, however, Jordan never made it out of the hospital. The governments continued to fight over funding for another two years, and Jordan passed away at the age of 5.
Shortly thereafter, in response to Jordan’s tragic death, the federal government unanimously passed a motion in 2007 on a child-first principle, better known as Jordan’s Principle, in the House of Commons. The motion called on the government of first contact to ensure that First Nations children have access to the same public services as other children, by providing immediate relief while determining who pays for the service. Unfortunately, Jordan’s Principle was initially limited in its application to children with multiple disabilities and funding disparities to First Nations children in other service sectors continued to place them at a disadvantage for several years to come.
On January 26, 2016, the Canadian Human Rights Tribunal (“CHRT”) affirmed that Canada’s funding
policies discriminate against First Nations children on reserve (the “Decision”)2. Several findings and orders were made against Canada regarding its discriminatory practices, specifically in relation to providing child and family services to children and families living on-reserve and in the Yukon. Among the rulings, the CHRT ordered Canada to take immediate steps to cease its narrow definition of Jordan’s Principle and give full meaning and effect to it. With jurisdiction over the matter, the CHRT continues to monitor Canada’s compliance with the Decision and on February 1, 2018, it issued its 4th non-compliance ruling3.
In a non-compliance ruling on May 26, 2017, the CHRT provided a timeline of steps that must be taken by Canada.4 Since then, Canada has implemented some of the necessary changes and Jordan’s Principle has been expanded to provide services to First Nations children both on and off-reserve for a broad range of health, social and education services. The process for accessing these services was streamlined5 through providing Jordan’s Principle representatives across Canada and the Jordan’s Principle Call Centre, which is open 24-hours a day, 7-days a week: 1-855-JP-CHILD (1-855-572-4453).
Counsel acting for First Nations families involved with the Ministry of Children and Family Development can utilize Jordan’s Principle on behalf of children for a variety of services. This is particularly helpful for families attempting to overcome protection concerns and facing multiple barriers that could be remedied through timely services to children. In keeping with the Decision, Jordan’s Principle was meant to serve as a preventative resource to help improve outcomes for First Nations children – this includes providing resources that would keep children with their families.
While the expanded definition of Jordan’s Principle may provide some relief to First Nations children in need, funding disparities continue to plague the child welfare system despite Canada’s fiduciary and legal duty to provide services to First Nations peoples. In a class action lawsuit filed Monday, March 4, 2019 in Federal Court, lead Plaintiff, Mr. Xavier Moushoom, alleges that Canada continues to discriminate against First Nations children in care through funding policies that incentivize the removal of children from their families.6 Mr. Moushoom, a survivor of the foster care system, argues that Canada knowingly failed to address severe inadequacies in its funding formulas, policies and practices in the child welfare system between April 1, 1991 and March 1, 2019. The class has not yet been certified, but the statement of claim relies heavily on the findings of the Decision to expose discriminatory policies that have harmed children – and that contribute to the overrepresentation of First Nations children in care across Canada.
1 Jordan’s Principle – A brief history, First Nations Child & Family Caring Society of Canada | ↩
2 2016 CHRT 2 | ↩
3 2018 CHRT 4 | ↩
4 2017 CHRT 14 | ↩
5 Jordan’s Principle | ↩
6 More info | ↩
Frances Rosner is a Métis lawyer working as a sole practitioner in Vancouver.