First Nations Child Compensation – First Nations Child Compensation

Please Note:

Compensation is not currently available.

Details on compensation eligibility and the application process will be made available at a later date.

Please check this website for updates.

IMPORTANT UPDATE:

With the guidance and support of First Nations Leadership and endorsement from the Canadian Human Rights Tribunal (CHRT), the Assembly of First Nations (AFN) and with the support of Canada and Moushoom/Trout, will seek approval of the revised Final Settlement Agreement (FSA) and the Distribution Protocol from the Federal Court of Canada on the timeline set by the Federal Court of Canada.

The Settlement Approval Date at the Federal Court has been set to begin on October 23, 2023 at 2:00 pm (Eastern) with other motion dates occurring that whole week. See the Federal Court Order dated August 18, 2023 here.

The Federal Court also approved the revised Short-Form and Long-Form Notice of Certification and Settlement Approval Hearing. In the same Federal Court Order, the Federal Court extended the Opt-out deadline to October 6, 2023. See the Federal Court Order dated August 18, 2023 here.

Finalizing the agreement on compensation for First Nations

In September 2022, the Assembly of First Nations (AFN) sought approval of a Final Settlement Agreement (FSA) on compensation at the Canadian Human Rights Tribunal (CHRT). The CHRT issued a letter decision in October 2022, followed by a full decision in December 2022, that stated the FSA substantially met its 2019 orders on compensation, however, did not fully satisfy these orders. As a result, the Parties to the Class Action and the First Nations Child and Family Caring Society of Canada (Caring Society) returned to the negotiation table to reach a revised agreement that satisfied the CHRT’s orders on compensation.

In April 2023, the AFN presented the FSA on compensation, now valued at over $23.34 billion, to the AFN First Nations-in-Assembly for review and endorsement. On April 4, 2023, the First Nations-in-Assembly unanimously approved the FSA via AFN Resolution 04/2023, Revised Final Settlement Agreement on Compensation for First Nations Children and Families. See the AFN Resolution here.

The FSA is intended to compensate First Nations children and families who experienced discrimination due to Canada’s underfunding of the First Nations Child and Family Services (FNCFS) Program and narrow application of Jordan’s Principle. See the FSA here.

On July 26, 2023, the CHRT issued a Letter Decision announcing the approval of the revised FSA. The landmark agreement, totalling over $23.34 billion, will compensate more than 300,000 First Nations children and families who experienced discrimination through the FNCFS Program and narrow application of Jordan’s Principle. See the Decision here.

The goal of the Parties to the FSA is to ensure that our children and families receive the compensation they deserve, as soon as possible. We are hopeful that the application process for the survivors and victims to receive compensation will be open in 2024.

Several more legal steps must take place before compensation will be distributed, including seeking approval of the Federal Court of Canada. A distribution protocol will be developed to outline specifics on who will be eligible for compensation and how they can apply, which also must be approved by the Federal Court.

The AFN acknowledges the victims and survivors of Canada’s discrimination for the courage and perseverance they have demonstrated throughout this process, in particular, the Representative Plaintiffs who have stood up on behalf of all eligible class members to pursue long-overdue recognition. The AFN also acknowledges those who have passed on to the Spirit World, including Jordan River Anderson, the founder of Jordan’s Principle who died before receiving the justice he deserved.

Please note: Compensation is not available yet. More information will be available after Federal Court approval.

Key Contacts:

Support from the Hope for Wellness Helpline: 1-855-242-3310

The Helpline offers free, anonymous counselling and crisis intervention 24 hours a day, 7 days a week by telephone at 1-855-242-3310 for anyone affected by the compensation and long-term reform process. Telephone services offered on a scheduled basis in Cree, Ojibway, and Inuktitut.

Children and youth can call Kids Help Phone anytime at 1-800-668-6868.

Deloitte Class Action Administrators: 1-833-852-0755

For general questions related to the class action, eligibility, the claims process, or to be connected to class counsel, please contact the Class Action Administrator, Deloitte, by telephone at 1-833-852-0755.

Hours of Operation: Monday-Friday 10am-6pm EST (closed on Statutory Holidays)

AFN FNCFS and Jordan’s Principle Compensation Information Desk:

For general questions about the class action or long-term reform of the FNCFS program and Jordan’s Principle, or to be connected to class counsel, please contact the AFN Information Desk at 1-888-718-6496.

Hours of Operation: Monday-Friday 8:30am-5pm EST (closed on Statutory Holidays)

Compensation for First Nations Child & Family Services: Noah’s Story

Compensation for First Nations Child & Family Services: Karen & Melissa’s Story

Compensation for First Nations Child & Family Services: Ashley’s Story

Background

In February 2007, the AFN and the First Nations Child and Family Caring Society filed a complaint under the Canadian Human Rights Act stating the Government of Canada was discriminating against First Nations children and families by underfunding the First Nations Child and Family Services Program on-reserve and in the Yukon, and by applying a narrow interpretation of Jordan’s Principle.

In January 2016, the Canadian Human Rights Tribunal (CHRT) agreed with the complainants in a landmark decision and ordered the federal government to end its discrimination, immediately reform the FNCFS Program, and fully implement Jordan’s Principle. In the years since this historic decision, the CHRT has issued more than 13 non-compliance orders because the Government of Canada has not been following the CHRT’s orders.

In September 2019, at the request of the AFN, the CHRT issued a Compensation Decision ordering the Government of Canada to pay eligible First Nations children and their parents and caregivers $40,000 in compensation. Included in the decision were First Nations children on-reserve and in the Yukon who were necessarily and unnecessarily removed from their homes from 2006 onwards, and First Nations children who were denied the essential services and other supports they needed, or received them after a delay, because the Government of Canada applied a narrow interpretation of Jordan’s Principle. The Government of Canada sought judicial review of this decision, but it was upheld. Canada has appealed this decision to the Federal Court of Appeal but has opted to negotiate a resolution.

Two class action lawsuits were also filed, including one by the AFN, and another by Moushoom/Trout seeking compensation for First Nations children and family members who were discriminated against through underfunding of the FNCFS Program and narrow application of Jordan’s Principle. These class actions concern compensation back to 1991, which means they cover more First Nations children and caregivers than the CHRT’s orders. In the fall of 2021, the Government of Canada agreed to enter into negotiations to settle the class action lawsuits.

The AFN, the Government of Canada and Moushoom/Trout signed an Agreement-in-Principle on December 31, 2021 that outlined $20 billion in compensation for First Nations children and families impacted by the discriminatory funding practices of the federal FNCFS program and its narrow implementation of Jordan’s Principle. At the same time, the parties signed an Agreement-in-Principle to reform the FNCFS program and for the full and proper implementation of Jordan’s Principle, outlining an additional $19.807 billion.

The June 30, 2022 final settlement agreement on compensation is the result of the dedicated efforts that took place over many years.

Here are answers to questions you may have about compensation and long-term reform.

Compensation

What is the total amount of Compensation the Government of Canada will pay?

In the final settlement agreement negotiated between the AFN, Moushoom/Trout, and the Government of Canada, a total of $23.343 billion has been agreed to for compensating individuals who have been discriminated against in the FNCFS Program and Jordan’s Principle.

Do I qualify for compensation, and if I do how much will I get?

The compensation amount is determined by the final settlement agreement, which is subject to approval by the CHRT and the Federal Court of Canada. There are five broad groups of people who qualify for compensation:

Children taken into care:

First Nations individuals who, at any time during the period between April 1, 1991 and March 31, 2022, while they were under the Age of Majority, were removed from their home by child welfare authorities or voluntarily placed into care, and whose placement was funded by ISC, were Ordinarily Resident on a Reserve or were living in the Yukon, but excluding individuals living in the Northwest Territories at the time of removal.

Jordan’s Principle:

All First Nations individuals who, during the period between December 12, 2007, and November 2, 2017, did not receive from Canada (whether by reason of a Denial or a Service Gap) an Essential Service relating to a Confirmed Need, or whose receipt of said Essential Service relating to a Confirmed Need was delayed by Canada, on grounds, including but not limited to, lack of funding or lack of jurisdiction, or as a result of a Service Gap or jurisdictional dispute with another government or governmental department while they were under the Age of Majority.

Trout Class:

First Nations individuals who, during the period between April 1, 1991, and December 11, 2007, while they were under the Age of Majority, did not receive from Canada (whether by reason of a Denial or a Service Gap) an Essential Service relating to a Confirmed Need, or whose receipt of said Essential Service was delayed by Canada, on grounds, including but not limited to, lack of funding or lack of jurisdiction, or as a result of a Service Gap or jurisdictional dispute with another government or governmental department.

Kith Child Class:

First Nations individuals living on reserve or in the Yukon, while under the age of majority, who at any time were sent off-reserve by a caregiving parent or caregiving grandparent involved with a child welfare agency to temporarily stay with a non-family member (also called “kith”), in a placement not funded by Indigenous Services Canada, between April 1, 1991, and March 31, 2022.

Family Class:

Individuals who are the primary caregiver of:

a member of the Removed Child Class at the time of removal;
a member of the Jordan’s Principle Class at the time of delay, denial or service gap; and/or
a member of the Trout Class at the time of delay, denial or service gap,
a member of the Kith Child Class at the time of removal
an eligible Deceased Child Class member

Compensation Distribution

When will I get compensation?

Compensation is not currently available. Several legal steps must take place before compensation will be distributed, including seeking approval of the revised FSA at the Federal Court of Canada. A distribution protocol is currently being developed to outline specifics on who will be eligible for compensation and how they can apply. The distribution protocol must also be approved by the Federal Court before the application process can begin. The Federal Court has set the schedule to address the approval of the FSA and Distribution Protocol the week of October 23-27. See Federal Court Order with the timetable for that week here.

How can I apply to get compensation?

There is no application process at this time. Details on the compensation process and application form will be shared following the Federal Court approval of the revised FSA and the distribution protocol.

How will Survivors be supported if the compensation process is difficult for them?

The Government of Canada has agreed to pay for mental wellness supports, such as counselling, for Survivors as they go through the compensation process. This will be funded separately from the $23.34 billion for compensation.

The AFN and the parties are currently developing a framework for culturally sensitive health, wellness and other supports for class members to access during the claims process, including class action navigation support, mental wellness resources, financial literacy, and more. The Hope for Wellness Help Line is also available to class members.

Will the Assembly of First Nations be distributing compensation?

The AFN will not be distributing compensation. Distribution will be managed by the Deloitte Class Action Administrators. For more information contact, Deloitte Class Action Administrators at 1-833-852-0755 (toll-free).

What does it mean to ‘Opt-Out’ of the class action?

Opting out of the class action means that you wish to remove yourself from the group of potential claimants. For example, someone may choose to opt out of the class action if they wish to file their own lawsuit. If you choose opt-out, you will not receive any compensation from the class action settlement.

If you are considering opting out of the class action and have questions or wish to discuss this process, you can contact the Claims Administrator (Deloitte) at [email protected] or 1-833-852-0755. If you wish to speak to a lawyer about opting out, you can contact Class Counsel representatives (Nahwegahbow Corbiere Genoodmagejig/Barristers & Solicitors, Fasken Martineau DuMoulin LLP) at 1-877-750-5554.

How do I opt out of the class action? On August 16, 2023, the Federal Court of Canada extended the time for class members to opt out of the class action until October 6, 2023. Class members wishing to remove themselves from the class actions will not be eligible for compensation under these proceedings must complete and submit the Opt-Out Form by October 6, 2023. You can complete the opt-out form here.

Cy-près Funds

What are the Cy-près funds and who can access it?

The first Cy-près fund is to benefit class members who do not receive direct payments under the FSA, and was designed based on the Assembly of Seven Generations (A7G) Children Back, Land Back (2021) report recommendations to provide culturally sensitive, trauma-informed support to Class Members. Read here.

The objective of the Cy-près Fund is to provide culturally sensitive and trauma-informed supports to the Class, including but not limited to:

Creating a Foundation to be led by First Nations youth and children in care, formerly in care, and their allies. The Foundation would offer grant-based supports to First Nations youth in care, formerly in care, and their allies to access culture-based, community-based and healing-based programs, services and activities. The Foundation would also establish a National First Nations Youth In/From Care Network, including the possibility of regional networks.
Grant-based support for First Nations youth in care and formerly in care to identify birth family and/or their First Nation, including accessing records or files, and facilitate meeting family members and/or travelling to their First Nation.
Family and community unification, reunification, connection, and reconnection.
Access to cultural supports, programs, and activities.
Transitional support for First Nations youth in care and formerly in care.

The second Cy-près fund is for Post Majority Supports for Jordan’s Principle. This Trust Fund will be established by the Caring Society with input from the Class Action Plaintiffs.

How can I access the Cy-près Fund?

The Cy-près Fund is still under development and information on how to access supports under these funds will be available later in 2024.

Long-Term Reform of the First Nations Child and Family Services Program and Jordan’s Principle

How is the Assembly of First Nations consulting with First Nations about long-term reform?

The AFN’s negotiations with the Government of Canada are guided and informed by engagement with First Nations. The AFN has been meeting with leadership and First Nations to hear their views on reform to ensure that the reforms are relevant and responsive to the needs of First Nations children, families and communities across the country.

The AFN has shared the agreement-in-principle (AIP) regarding long-term reform with Chiefs and First Nations.

How long will reform take?

Funding for long-term reform of the FNCFS program and Jordan’s Principle will be spread over five years. The AFN, the Government of Canada and other parties have committed to moving ahead as quickly as possible. The Agreement-in-Principle on long-term reform outlines immediate program reforms which began rolling out in 2022, such as additional prevention funding and extending supports for First Nations youth transitioning out of care up to age 26. Other reforms will take more time to design and implement.

How much money is there for reform?

The long-term reform Agreement-in-Principle with the Government of Canada includes $19.807 billion in funding for long-term reform of the FNCFS Program and Jordan’s Principle. This is separate from the $23 billion for compensation.

What will long-term reform of the FNCFS Program include?

Long-term reform of the FNCFS Program will include:

A baseline funding amount that will cover the actual costs of a child in care. This amount will be increased over time to match population growth and inflation.
Funding to address the drivers of child and family involvement with FNCFS such as poverty, housing or food insecurities.
Funding for cultural and community-based programs and services that help First Nations children and families thrive such as prevention, First Nations and Band Representative Services.
Funding to address the higher costs of providing services to First Nations in remote communities.
Funding to ensure that First Nations and FNCFS agencies have the means to purchase, maintain, renovate and repair the buildings, vehicles and other property they use to provide services to First Nations.
Funding for FNCFS providers to buy, upgrade and maintain computers, hardware and software and other equipment.
Funding to support the implementation of a new performance measuring framework called Measuring to Thrive, which is a data system designed to measure, track and report on the impact of the FNCFS program on child and family wellbeing. This information will then be used to inform FNCFS budgets based on First Nations’ needs and priorities.
Emergency funds for when an unexpected crisis that puts additional demands on FNCFS.
Funding for a First Nations-led, non-profit secretariat to support First Nations and FNCFS agencies with technical and operations support, as well as serving as a national-level data collector.

Full application of Jordan’s Principle

What is Jordan’s Principle?

Jordan’s Principle is a child-first legal Principle that ensures First Nations children have access to the services and supports they need, no matter where they live, without delay or denial. Learn more about Jordan’s Principle here.

How will reform affect Jordan’s Principle?

The reforms will ensure full and proper implementation of Jordan’s Principle to support First Nations children.

This includes:

Ensuring it follows the CHRT’s orders, including eligibility, what is covered, and when. These changes will prevent delays, refusals and children falling through the cracks.
Funding to identify and close systemic gaps in essential services that adversely impact First Nations children.
Fixing administrative problems with Jordan’s Principle, such as asking for too much documentation or differences in the way it is applied across the country.
Funding to support First Nations youth reaching age of majority connect with services and support they need in adulthood.
Keeping the government accountable to First Nations about Jordan’s Principle by listening to complaints and quickly taking responsive action.
Exploring ways to support greater First Nations control over Jordan’s Principle service coordination, delivery and determinations.

Further Information

Individuals seeking additional information can call the AFN First Nation Child and Family Services Compensation Information Desk at 1-888-718-6496. Additionally, you can email us at [email protected].