B.C. couple fight for N.W.T. to recognize their custom adoption

A court date in Yellowknife this week between former foster parents and the B.C. government quickly became an impassioned plea from the adults to be able to reconnect with the child.

"Litigation is not where we want to be," said the foster mom, who is representing herself in court with her husband. "I want to be at home raising my daughter."

The hearing on Wednesday, in the Northwest Territories Court of Appeal, was the latest in years of legal battles over whether their custom adoption — a cultural practice and an arrangement made between two Indigenous families — is valid.

The names of the people involved are protected under a publication ban.

The Métis woman and her non-Indigenous husband started fostering the child shortly after she was born in 2013. They say early in the child's life, they and the Métis birth parents all agreed on a custom adoption. But by 2015, according to court documents, the province took the child under its permanent care. After multiple attempts to adopt the child in B.C., multiple dismissals and appeals, the child was sent to Ontario to live with her siblings — and the couple turned to a commissioner in the Northwest Territories, where the husband does business, to recognize their adoption.

In the Northwest Territories, the Aboriginal Custom Adoption Recognition Act gives Indigenous people the legal authority to use less formal, traditional methods of adoption.

In May, a Northwest Territories justice quashed the adoption, saying the former foster parents abused the process and the people involved have little connection to the North.

That's where the hearing this week comes in. The couple will be appealing that ruling in April 2020, and on Wednesday, the couple asked the court to press pause on the justice's decision until the results of that appeal.

"This is the age where they bond, they learn, they grow — they learn the values the most," the foster mom said, adding that the months between now and the result of the appeal are important for the child's development and the child should spend time with them.

"She may be with her [siblings] but they have no way of teaching her Aboriginal culture because they've never been exposed to it."

Appellants are 'desperate,' opposing lawyer says

On Wednesday, N.W.T lawyer Sheldon Toner spoke on behalf of the B.C. director of Child, Family and Community Services against the motion.

He said if the judge's decision was lifted until after the appeal, that wouldn't necessarily mean the child would go back for that time period. Instead, it would mean more litigation and court time, he argued. What was best for the child was maintaining the status quo.

Toner also told the court that after the child was sent to Ontario, the parents went to visit her at school, resulting in a temporary restraining order against them filed this year. He argued that the parents are becoming "quite desperate" and if the order was stayed they might misapply the decision and "create a result the appellant would like."

"The appellants do not equate to her culture, the appellants do not equate to her community, and the appellants do not equate to her family," Toner said.

The former foster father told CBC that they are disputing the restraining order, and that they had gone to check on the child on behalf of his wife's Métis organization and did not act alone.

Where should the issues be heard?

On Wednesday, a lawyer for the Northwest Territories Attorney General told Justice Louise Charbonneau that their office wanted the ruling to remain in effect. She said British Columbia's legal system had already asserted their jurisdiction over the issues and has its own mechanism for recognizing custom adoptions.

In 2016, the birth parents asked a B.C. court to return custody of the child to them so they could give the child to the former foster parents for adoption. That request was dismissed. A 2016 claim from the birth parents and foster parents in B.C., that a custom adoption had occurred, was also dismissed by B.C.'s Supreme Court as an abuse of process.

Listening to the arguments, Charbonneau said there wasn't very much common ground between the couple and the B.C. government department.

"The parties are viewing this entire case from very different lenses — that's very clear to me," she said.

Charbonneau hopes to have a decision on the motion before the holidays or in January.