Highest court will hear adoption case

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A section of Canada's Charter of Rights and Freedoms which is internationally lauded as especially enlightened in its treatment of minority groups is going to be put under the microscope when the Supreme Court of Canada hears a case about cross-cultural adoptions.

The two sides of a child custody case that originated in Vancouver will appear in Canada's court of last resort on Feb. 16.

The case involves a cross-cultural adoption and will force the Supreme Court of Canada to rule on a British Columbia statute that seeks to limit such adoptions.

The non-Native adoptive grandparents of a four-year-old are expected to claim that British Columbia's Child, Family and Community Services Act is contrary to Section 15 (1) of the Charter, which states that all individuals have the right to equal protection and benefit of the law. They will argue that factoring in the child's Aboriginal heritage while deciding a child custody case, as the British Columbia Court of Appeal did, discriminates against non-Native people.

But the child's blood grandfather, a Cree man from Manitoba who now resides in Vancouver, will argue that the Charter's Section 15 (2) defeats that argument.

The British Columbia Court of Appeal decision, which is being appealed, took note of recent changes to provincial laws that have been enacted to prevent or least discourage cross-cultural adoptions involving Aboriginal children and reversed a decision to award custody of the child to his non-Native adoptive grandparents.

"Indian bands and governments in Canada are moving in directions exemplified by the above-noted provisions of the Child, Family and Community Services Act," appeal court Judge Hall wrote. "Whether success will be attained or enhanced by this sort of initiative, only future experience can demonstrate, but it seems to me that the courts ought to show due deference to the legislative initiatives in this area. This is a major factor in this case that influences me to differ from the conclusion of the trial judge concerning the custody of this young child."

Lawyers for the adoptive grandparents have filed two reasons for challenging Judge Hall's decision. They want the Supreme Court of Canada justices to determine if Hall erred in law by giving blood ties preference over adoptive ties and they are challenging the province's law that requires that Native culture be protected.

It's expected the argument will invoke the section (15-1) of the Charter that guarantees equal benefit of the law. The argument will be that British Columbia's legislation gives an unequal advantage to Native people in child custody cases involving mixed family situations.

The court will have to decide if that section is trumped by 15-2 that states advantages granted to disadvantaged members of society that improve their disadvantaged conditions can be applied unequally without violating the guarantees of equal benefit of the law.