Caring Society’s February 2, 2026 written submission
Press Release
PART I – STATEMENT OF FACTS
⦁ Overview
⦁ “This decision concerns children.”1 With these words, the Canadian Human Rights Tribunal (“Tribunal”) grounded its landmark 2016 Merits Decision in the human rights of First Nations children and in its statutory duty under the Canadian Human Rights Act
(“CHRA”) to eliminate and prevent discrimination.2 Canada engaged in systemic, wilful and reckless discrimination, leading the Tribunal to issue final injunctive orders to protect those children and to ensure that such discrimination does not recur. The Tribunal is now being asked to vacate its binding orders and replace them with a time-limited, contingent agreement that does not eliminate the discrimination or provide enforceable guarantees of substantive equality for First Nations children. Human rights remedies cannot be bargained away, and children’s rights cannot be placed on a jurisdictional cliff with no safety net. The First Nations Child and Family Caring Society of Canada (the “Caring Society”) submits that the Tribunal lacks the jurisdiction and the evidentiary basis to grant the relief sought on this motion.
⦁ The Attorney General of Canada (“Canada”), supported by the interested parties, the Chiefs of Ontario (“COO”) and Nishnawbe Aski Nation (“NAN”), has brought a motion seeking extraordinary and unprecedented relief. The Further Amended Notice of Motion seeks
(i) an order that the Ontario Final Settlement Agreement on the long-term reform of the First Nations Child and Family Services Program (“Ontario FSA”) be approved without condition; (ii) an order that the Ontario FSA and the Trilateral Agreement in Respect of Reforming the 1965 Agreement (the “Trilateral Agreement”) satisfy, supersede, and replace all orders of the Tribunal related to the First Nations Child and Family Services Program (the “FNCFS Program”) in Ontario and the 1965 Agreement; and (iii) an order ending the Tribunal’s jurisdiction and terminating all permanent cease-and-desist child and family services orders made to remedy proven national systemic discrimination against First Nations children (the “Ontario Motion”).3
1 2016 CHRT 2 [Merits Decision] at para 1 [emphasis added].
2 Canadian Human Rights Act, RSC, 1985, c H-6 [CHRA].
3 Further Amended Notice of Motion, filed by Canada, August 11, 2025 [Further Amended NOM]. In relation to the relief sought in paragraph 5, the Panel has ruled that the question of whether COO and NAN’s status as interested parties restricts them from filing the Ontario Motion (absent being joined by Canada) is now moot – Canada is a party to the Ontario Motion.
3. The record confirms that the Tribunal’s orders flowing from the Merit Decision have provided concrete and necessary protections for First Nations children ordinarily resident on
reserve4 by compelling Canada to fund services that otherwise would not have been delivered, including statutorily required protection, prevention and least disruptive measures, capital, mental health supports, and First Nations Representative Services. Those orders were designed to give effect to children’s rights to substantive equality and to remedy the very funding uncertainty and discretionary decision‑making found to be discriminatory in the Merits Decision. None of the evidence has demonstrated that the Ontario FSA will provide equivalent, enforceable protection for children once those orders are vacated.
3. The Caring Society opposes the relief sought on this motion. First, the Tribunal lacks the jurisdiction to extinguish or vacate its injunctive remedial orders. Second, the evidentiary record does not establish that Canada has eliminated the discriminatory features of the FNCFS Program in Ontario. Instead, Canada is relying on prospective commitments, assumptions and discretionary funding structures, the sufficiency of which has not been demonstrated in the evidence. Third, the record does not demonstrate that the Ontario FSA contains enforceable and durable safeguards capable of preventing the recurrence of discrimination. Finally, because the Ontario FSA is presented without condition or an option for amendment, the Tribunal is being asked to relinquish its supervisory jurisdiction without the ability to address identified structural deficiencies or to ensure continued compliance with its injunctive orders. In these circumstances, the Ontario FSA does not demonstrate that the rights of First Nations children will be protected by sustainable, enforceable and evidence-based remedies to which First Nations children are entitled.
3. The Ontario FSA also creates a jurisdictional cliff for First Nations children, erasing the orders that have been protecting them since 2016—orders that are built to recognize the discrimination experienced by children and their families and that are tailored to hold Canada accountable in a manner that eradicates and ultimately prevents discrimination in the future. The Tribunal is being asked to eviscerate its orders, wipe the slate clean and trust that Canada will do the right thing for generations to come. Indeed, the only safeguards for First Nations
4 Throughout these submissions “First Nations children” refers to First Nations children ordinarily resident on-reserve.
children seven years from now is a funding review that Canada can consider but is not bound to implement.
6. The Tribunal does not have the jurisdiction to erase its own injunctive orders, as doing so would erode the human rights framework to its core and violate the principle of finality. On this basis, the Ontario Motion should be dismissed, and Canada should be asked to revisit the Ontario FSA with guidance from the Tribunal regarding the pillars of long-term reform, as discussed throughout these submissions.
6. Irrespective the Tribunal’s jurisdiction to approve the Ontario Motion (which the Caring Society clearly states it does not) there are serious structural deficiencies with the Ontario FSA that cannot be remedied given that Canada is seeking an approval without condition. It is of great concern that, under the Ontario FSA, Canada retains exclusive authority over the overall funding envelope, including the terms and conditions under which funding is being provided. While the Ontario Reform Implementation Committee (the “ORIC”) can monitor implementation and provide recommendations, Canada retains ultimate control over whether such recommendations are accepted or implemented.
6. Similarly, the dispute resolution process is tailored to only resolve discrete disputes. The Arbitral Tribunal has limited powers and is expressly precluded from making findings of discrimination, ordering systemic remedies, or increasing the overall funding commitment. Instead, their jurisdiction is limited to enforcing Canada’s existing contractual commitments under the Ontario FSA, absent the guidance that flows from the Tribunal’s injunctive orders and absent the oversight of the Tribunal at a time of critical transition.
6. Critically, the Ontario FSA does not reform the 1965 Agreement—a core injunctive order that grounds the Tribunal’s landmark decision in 2016: Canada was ordered to cease its discriminatory practices and reform the 1965 Agreement to reflect the findings of the
Tribunal.5 Not only has Canada failed to reform the 1965 Agreement, it has led no evidence on this motion to demonstrate that it has made any efforts to comply with the Tribunal’s order in this regard. This failure is not simply a matter of policy, as the Ontario FSA fails to redress one of the core discriminatory aspects of the 1965 Agreement: there is no provision for long term or sustainable funding for mental health services.
ILR4
