Legal Battles Over Indigenous Children in Off-Reserve Child Welfare Systems Continue Across Canada
Indigenous children make up roughly eight per cent of Canada's youth but more than half of those in the child welfare system. Courts across multiple provinces are hearing lawsuits over this off-reserve overrepresentation, with inconsistent rulings prompting appeals and calls for Supreme Court intervention.
Approximately eight per cent of children in Canada are Indigenous, yet they constitute more than half of the children in the country's child welfare system. This disparity has prompted legal action in six provinces, as advocates challenge what some have termed the "Millennium Scoop" — the ongoing overrepresentation of Indigenous youth in off-reserve care managed by organizations such as Children's Aid Societies.
In Ontario, Superior Court Justice Edward Morgan dismissed a class-action lawsuit brought by plaintiffs B.M. and C.A. against Canada and Ontario. In his ruling, Justice Morgan stated that the overrepresentation of Indigenous children in the province's system "does not itself convey wrongful state conduct." The decision is now being appealed, with the Anishinabek Nation, Chiefs of Ontario, and Nishnawbe Aski Nation intervening. Linda Debassige, grand council chief of the Anishinabek Nation, which represents 39 communities, described the Ontario ruling as "highly problematic" and comparable to residential school denialism.
The federal government maintains that claims against it should be dismissed because child welfare falls under provincial jurisdiction, a position outlined in a May 2025 briefing note. Lawyers representing Indigenous youth argue that Canada remains a necessary party to the litigation.
Court outcomes have varied significantly by province. Late last month, the British Columbia Court of Appeal dismissed a claim against Canada but allowed a lawsuit against British Columbia to proceed. In Quebec, a court authorized a claim to move forward, while Manitoba consented to a case advancing. These cases follow the dismissal last year of the Stonechild case.
The current off-reserve litigation follows a landmark 2016 Canadian Human Rights Tribunal finding that ultimately led to a $23.4-billion settlement for First Nations children harmed in the on-reserve child welfare system. However, that settlement excludes youth who were apprehended while living off-reserve.
Lawyer David Sterns, of Sotos LLP, stated that the inconsistency of court outcomes across provinces suggests the Supreme Court of Canada may need to intervene to resolve the complex legal landscape surrounding federal liability and off-reserve child welfare harms.