A foster couple from British Columbia’s eagerness to adopt a child once under their care amounted to “procedural unfairness and an abuse of process,” when they convinced the NWT’s custom adoption commissioner to grant them custody, the territory’s highest court has ruled.
The NWT Court of Appeal’s decision upholds a 2019 lower court’s ruling that quashed that custom adoption certificate, then-reported on by the CBC. The appeal court noted the couple’s case is “properly before the British Columbia courts.”
The names of the couple and the child in the case are protected under a publication ban.
The foster parents made an in-person plea to NWT Custom Adoption Commissioner Mary Beauchamp, who issued an adoption certificate in December 2016. They argued the birth parents of the child had agreed on a custom adoption.
A custom adoption is an arrangement made between two Indigenous families, in order to help a child and preserve Indigenous culture. It is less onerous than the regular government adoption process.
The couple failed, however, to inform Beauchamp that the B.C. director of Child, Family and Community Services had sole personal guardianship of the child. Beauchamp also wasn’t told of the several legal proceedings that had been initiated by the foster parents in B.C., that hadn’t yet come to a resolution.
“They advised [Beauchamp] of their wish to adopt [the child] with the consent of [her] biological parents, but did not advise the commissioner that the director was the legal guardian … or of any of the court proceedings that had taken place in British Columbia,” stated the appeal court’s decision, issued on Tuesday.
The appeal court also noted the child was born in Victoria to Métis parents, the foster mother is a member of the British Columbia Métis Association and the child had never “resided in, or even visited” the NWT. The only reported connection to the territory was some business dealings by the foster father, who is non-Indigenous.
“Nor did they advise the commissioner [the child] had never resided in, or even visited, the Northwest Territories. In fact, they led the commissioner to believe [the child] was actually living with them at the time they applied for the Custom Adoption Certificate,” the decision states.
The NWT commissioner has since sworn an affidavit reporting that she would not have granted the custom adoption certificate had she been told that the B.C. director was the permanent legal guardian of the child.
On hearing the certificate had been granted in the NWT, the B.C. director applied for a judicial review of the case, arguing she had not received notice that an application for a custom adoption was being made.
“The director also argued this maneuver in the Northwest Territories was an abuse of process and that … jurisdiction had no authority to deal with the adoption of [the child] because she had never been a resident of that Territory,” the appeal court stated.
In September 2016, the B.C. director of child services determined the child should be adopted by the same couple that had adopted the child’s biological siblings. The child was then placed with that family, who reside in Ontario, and has lived with them ever since.
The child’s former foster mother, who sought an adoption certificate in the NWT, has since died. Her husband has since taken charge of the case. He was self-represented, but filed lengthy written arguments that focused on the integrity of Aboriginal custom adoptions.
The man also tried to introduce what was described “as fresh evidence,” which amounted to a transcript of a taped telephone conversation between the couple and Beauchamp. However, that recording was made without the commissioner’s knowledge or consent and was ruled inadmissible and “not in any way relevant.”
The B.C. director is entitled to the costs of the appeal. No costs will be payable to the NWT Custom Adoptions Commissioner, or the territorial government.