Top court ignores child's blood ties in adoption

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British Columbia's legislative attempt to protect Indigenous culture by limiting cross-cultural adoptions has hit a snag at the Supreme Court of Canada.

In a ruling that came just days after arguments were heard, the court awarded custody of a three-year-old boy of Aboriginal heritage to a non-Native couple in their 70s, ruling that the British Columbia Court of Appeals judge who reversed the trial judge's decision and awarded custody to the Aboriginal grandparent had over-stepped the limits of an appellate court's powers.

The decision, which is final and binding and will see the child move from his biological family's home on Manitoba's Sagkeen First Nation to his adoptive family's home in Connecticut, re-affirms case law that states the best interest of the child - determined largely by the comparative income and financial stability of the competing parties - is paramount in custody fights.

Viola Thomas, president of the Vancouver-based United Native Nations - British Columbia, has watched the case's progress, first through British Columbia courts and then - on Feb. 16 - in the Supreme Court of Canada. Thomas has worked as an advocate for the Aboriginal grandparent who has been struggling to gain custody of his grandson while facing a competing claim from the couple who adopted the boy's mother and then claimed custody of her child.

"It was primarily a technical argument," she said. "The Supreme Court judges say the appellate judges' role was to determine if there was an error in interpretation of law. In their opinion, the appellate judges didn't communicate an error in the interpretation of law on the basis of their understanding of the law. So, that's open to debate. They're interpretation doesn't embrace that the best interests of the child should include the blood ties."

Thomas believes the Aboriginal point of view was missing from this case. She points out that, if income and wealth are to be determining factors in all custody hearings, Aboriginal people have been put in a position of extreme disadvantage because First Nation economies are very depressed.

"Of course, you had nine white judges deciding the fate of this Aboriginal child," she said. "But the whole line of questioning that the judges flagged in the hearing, a lot of it was their stereotypes of what is family in the context in the standard nuclear family."

She argues that Aboriginal family structure "isn't typical and you can't compare it to mainstream Canadian families" even though, she said, that's what the court did.

Thomas said the court loss was heart-breaking, given her close connection with the family, but the greatest disappointment to her is the lost opportunity to make a strong argument and re-enforce the British Columbia legislature's attempts to strengthen Aboriginal family ties.

"More than anything, this really astounds me. Where was our leadership? This was a fantastic opportunity to clearly set a strong precedent around the new legislation and to have it re-affirmed in the form of a precedent," she said.

Courts frequently say their hands are tied by legislatures and that their job is to interpret the law so that the intentions of the law-makers are applied to court decisions. Thomas said this decision is contrary to the intentions of the British Columbia legislature which sought to protect the cultural heritage of Aboriginal children by only allowing cross-cultural adoptions as a last resort. She says the court ignored the spirit of the legislation with this decision.

"Is it the Supreme Court's role, because of the new legislation kicking in and because the appellate judges have supported the emphasis of that in their decision, is it the role of the Supreme Court of Canada to determine that?" she asked.

Thomas and her organization are looking for a strategy to review this case. She said she'll lobby the minister of Justice for help in this case or in future cases.