Tag Archives: custom adoption

NC v Kunuwanimano CFS and Fort Albany First Nation, 2019 CFSRB 7

Posted on by
Reply

The decision of the Respondent to refuse the adoption of three Indigenous children placed in the Applicant’s care is confirmed under s 192 of the Child, Youth and Family Services Act.

Native Law Centre Case Watch

The Applicant requested a review pursuant to s 192 of the Child, Youth and Family Services Act, [“Act”]. This application refers to a decision made in favour of the Respondent, Kunuwanimano Child and Family Services, [“KCFS”] who refused the Applicant’s application to adopt three children who were placed in her care for two years. The children were apprehended from the care of their parents by the North Eastern Ontario Child and Family Services and made Crown Wards without access for the purpose of adoption. The children’s mother, who is deceased, and their father have membership with the Fort Albany First Nation [“FAFN”]. The children’s files were transferred to the KCFS, an Indigenous child welfare agency and were subsequently placed in a foster home. After three years the foster home could no longer care for the children due to uncontrollable circumstances. The children were then placed in the care of the Applicant and remained in her care for almost two years until their abrupt removal.

The Child and Family Services Review Board’s [“CFSRB”] determination is made in accordance with the expanded definition of the test for the best interests of the child set out in s 179(2) of the Act. In addition to giving prominence to the child’s views and wishes, as well as the recognition of Indigenous cultures and connections to their community, the preamble of the Act also acknowledges that children are individuals with rights to be respected and voices to be heard.

SV, who is the most recent placement for the children, is a member of the Moose Cree First Nation and grew up alongside the children’s father. The evidence is clear that SV has strong connections to the children’s community and cultural heritage. Her practices are traditional in her home where the children are introduced to hunting and fishing and that this was consistent with a way of life, rather than simply an activity. She has taken significant measures to connect the children to their extended family with whom she is well acquainted.

In contrast, the Applicant has no significant ties to the children’s First Nations community or extended family. The Applicant knows very little about the cultural practices of the children’s Indigenous community, or the Illilu people. It was clear that she cares deeply for the children and wishes to adopt all three of them. Her evidence, supported by report cards and the agency’s own documents, was that they were well-cared for in her home and had developed a bond with her and her family. The views and wishes of the children also confirmed the strong bond that the children have with the Applicant. The abrupt removal of the children from her care was traumatic for her and also for the children.

The CFSRB, however, is also mindful of the view of family and community that is expressed by the FAFN and the emphasis on customary care alternatives for Indigenous children under the Act. It is also through the current placement that the children are reconnecting with their father, albeit not as a primary caregiver. While SV is not a direct relation to the children, it is clear that she has strong historical and current connections to the children’s extended family and is committed to facilitating their relationships with family as much as possible. The Applicant simply cannot offer the same commitment and ease of connection to family as SV.

Of considerable importance to our determination is the connection between the siblings. They have always been together and expressed a wish to remain that way. The CFSRB finds that to separate the Children at this time would not be in their best interests and along with all the above factors, favours confirmation of the Respondents’ position. The CFSRB, however, is also of the view the children were not given the opportunity to properly say good-bye to the Applicant and suggested that the KCFS facilitate an acknowledgement and contact to bring some finality to these unresolved feelings.

BC (Director of Child, Family and Community Services) v Beauchamp et al, 2019 NWTSC 19

Posted on by
Reply

Judicial review allowed. The Director did not receive the minimum notice of the custom adoption application of a Métis child. The decision of the Commissioner must be quashed and the certificate for adoption vacated.

Native Law Centre Case Watch

The Applicant, the British Columbia Director of Child, Family and Community Services [“Director”] has applied for a judicial review of the decision of the Respondent, Custom Adoption Commissioner Mary Beauchamp [“Commissioner”]. She issued a Custom Adoption Certificate [“Certificate”] that recognizes the adoption of a Métis child by the Respondents [“Foster Parents”] in accordance with Aboriginal customary law.

In 2013, a Métis child was apprehended the day after her birth by child protection authorities in British Columbia. She was placed in foster care of the pursuant to a family care home agreement they entered into with the Director. The Director was granted legal custody of the child through a continuing care order [“CCO”] dated July 6, 2015 by the BC Provincial Court. The Director has removed the child from the former Foster Parents care and placed her in an Ontario home to be with her biological siblings.

The Foster Parents submitted a petition to the court to adopt the child which was dismissed. A second petition was submitted asking for the same relief, but it was dismissed on the grounds of res judicata. Another petition was subsequently submitted, among various relief was adoption of the child, but also a reference to Aboriginal customary adoption. Again, the petition was dismissed as an abuse of process. The Foster Parents then submitted a fourth petition [“Petition #4”] but this submission was fundamentally different than the previous petitions. It stated that the child had already went through an Aboriginal customary adoption. It was dismissed as an abuse of process, but is now under appeal at the British Columbia Court of Appeal. That court presently has its decision on hold as it awaits the decision of this judicial review.

One of the Foster Parents is Métis and is a member of the British Columbia Métis Federation. Sometime after their former foster child was removed from their care, they moved to the Northwest Territories. They then met with the Commissioner who subsequently issued the Certificate recognizing that the child was adopted in accordance with Aboriginal customary law in 2013.

The Aboriginal Custom Adoption Recognition Act [“Act”] was enacted to recognize Aboriginal custom adoptions. The Act provides a process for individuals who have adopted a child in accordance with Aboriginal customary law to apply for a certificate recognizing the adoption. The certificate does not create an adoption but recognizes that an adoption has already taken place (Bruha v Bruha, 2009 NWTSC 44 [“Bruha”]). Custom adoption commissioners are appointed by the Minister on the basis that they already have knowledge and understanding of Aboriginal customary law in the community or region in which they reside. A custom adoption commissioner is simply recognizing that a custom adoption has taken place, however, the importance of the decision and the impact from it is significant. Once a commissioner is satisfied that the information required is complete and in order, a certificate is issued that a custom Aboriginal adoption has taken place. It is then filed with the court as a court order which permits the adoptive parent(s) to obtain a new birth certificate for the child. There is no appeal process provided under the Act. The decision of the custom adoption commissioner is final, subject only to judicial review (Bruha).

While the Act is intentionally vague about the process to be followed in recognizing an Aboriginal customary adoption, it does contemplate some form of notice. Given the implications of the decision of a custom adoption commissioner and the legitimate expectations of interested parties, the duty of procedural fairness requires, at a minimum, that interested parties receive notice of the application.

Custom adoption is a concept that has evolved over time and has adjusted to changing social conditions. There has been an evolution regarding who is involved in the process, who can adopt Aboriginal children, and how this process occurs (Kalaserk v Strickland, 1999 CanLII 6799 (NWTSC)). While the position of Director is created by the Child, Family and Community Service Act, she is the sole legal guardian as the CCO is still in place. The Director was an interested person and clearly entitled to notice of the application before the Commissioner. To allow the Certificate to stand would violate the principles of judicial economy, consistency, finality and the integrity of the administration of justice. If the Certificate was allowed to continue it would result in an abuse of process and therefore must be vacated.

BC (Director of Child, Family and Community Services) v LM, 2019 ONCJ 205

Posted on by
Reply

Restraining order granted preventing the Respondents from contact with a child they claim to have customarily adopted. Decision as to other matters on reserve.

Native Law Centre Case Watch

The British Columbia Director of Child, Family and Community Services [“Director”], requested a restraining order against the Respondents [“Foster Parents”] pursuant to s 35 of the Children’s Law Reform Act. This interim and without prejudice order restrains the Foster Parents from communicating or coming near their former foster child, her school and any other place where the child may reasonably be expected to be. Further procedural relief was granted, including a sealing order and a publication ban.

On June 22, 2018, the Foster Parents became aware of the child’s school she was attending in Ontario. They approached the child in the playground and provided the issued credentials of their status as child protection representatives for the BC Métis Federation’s child protection service. The school staff went into lockdown and called the police. The child was traumatized from the experience, but the Foster Parents insisted they were not the source of the trauma and that the school overreacted. The Director has brought this application to the Court as a result from this event, but also the prior history involving the parties, as she is afraid the Foster Parents will attempt another apprehension.

When the child was born in 2013, she was removed from the care of her birth parents the day after her birth. She was then placed with the Foster Parents under a Family Home Care Agreement. Eventually a continuing custody order [“CCO”] was established on July 6, 2015. A CCO is analogous to an order of Crown Wardship in the province of Ontario, and conferred lawful custody of the child with the Director. It is deemed to be an order of the court and is enforceable as such. The Director has the authority to remove a child under the Child, Family and Community Service Act, if she has reasonable grounds to believe that the child needs protection and there is no other measure available. Since the Director removed the child from the Foster Parent’s care, the child has resided in Ontario in a non-Métis adoptive home with her biological sisters.

The Foster Parents brought three subsequent petitions since 2015 for the adoption of the child. The first one was dismissed, the second was also dismissed on the grounds of res judicata. The third petition sought various declarations, including another order to adopt the child, but had a reference to custom adoption as well as an order for certiorari quashing the transfer of the child to Ontario for adoption. On the denial of that application, the birth parents, the Foster Parents, and the BC Métis Federation, filed a fourth petition [“Petition #4”] for a declaration that the Foster Parents have already adopted the child by way of a custom adoption.

This application was inconsistent with the prior petitions advanced by the Foster Parents, considering there is recognition of custom adoption under s 46 of the Adoption Act. The Foster Parents claimed they were unaware until very recently that their actions constituted a valid Aboriginal custom adoption which could be recognized by the courts. The court, however, did not accept these submissions and determined Petition #4 was an abuse of process and should be struck.

On the appeal of AS v BC (Director of Child, Family and Community Services), new evidence disclosed that a custom adoption commissioner [“Commissioner”] in the Northwest Territories [“NWT”], pursuant to s 2 of the Aboriginal Custom Adoption Recognition Act, had issued a custom adoption certificate. It declared that the Foster Parents adopted the child by way of Aboriginal custom adoption in 2013 which is deemed to be an order of that court. Through this, the Foster Parents obtained pursuant to the Vital Statistics Act, a British Columbia birth certificate for the child listing them as her parents. The Director had no knowledge of the proceedings in the NWT or the issuance of the BC birth certificate and filed an originating notice for judicial review in the Supreme Court of the Northwest Territories [“NWT Supreme Court”].

The British Columbia Court of Appeal [“BCCA”] stayed the appeal of S(A) v BC (Director of Child, Family and Community Services) to await the judicial review decision of the NWT Supreme Court that is on reserve. In the meantime, there is an interim, without prejudice order prohibiting the use of the NWT custom adoption certificate or its associated documents such as the BC birth certificate, by any party to gain access or custody to the child.

To decide such matters in this application at this time, while the NWT Supreme Court’s decision, the BC Court of Appeal’s decision, and the ultimate fate of Petition #4 is unknown, would be inappropriate and an abuse of process. It undermines the credibility of the courts if a judicial tribunal hears the same evidence in a different trial on the same issues, as there is potential for conflicting results (Children’s Aid Society of Ottawa (City) v M(G)).

The Foster Parents have clearly demonstrated that they are not prepared to wait for their claims to be fully adjudicated in a court of law, and will resort to self-help remedies without notification to the courts. On a balance of probabilities, the Director has reasonable grounds to fear for the safety of the child in her lawful custody and is granted the restraining order. The order made is without prejudice to the Foster Parents right to seek its termination or to vary it once the decisions of the two other courts have been released and the fate of Petition #4 becomes known.