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ADOPTION - Considerations - Best interests of child - Child's cultural heritage - Contest between relatives and strangers

Friday, September 15, 2017 @ 8:24 AM  


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Appeal by the child’s biological mother from an adoption order granted in the respondents’ favour. The child, a 10-year-old Aboriginal boy, was taken into care by the Ministry of Children and Family Development (Ministry) at birth, when cocaine was detected in his blood stream. He remained in the Ministry's care for five months until his maternal grandmother obtained legal custody and guardianship of him. When the child was 14 months old the grandmother left him in the care of the respondents for weekend respite care because she had health problems. She extended the arrangement to full-time care when the child was 20 months old. The child had lived with the respondents on a full-time basis ever since. The respondent mother was Aboriginal, but the respondent father was not. Both the child’s birth mother and maternal grandmother were members of the Splats'in Band, which was part of the Secwepemc Nation. Accordingly, the child was also a member of the Splats’in Band and Secwepemc Nation. The child had two siblings who were also adopted by the respondents. The siblings were both Aboriginal, but were not related to the child; each was born into a different band from that of the child’s. On appeal, the biological mother asserted that the trial judge erred in law by failing to correctly interpret and properly weigh s. 3(2) of the Adoption Act (Act), which stipulated the importance of preserving the child’s cultural identity in determining his best interests. She submitted that while the trial judge considered the child's Aboriginal heritage and the importance of preserving his cultural identity in general, she erred in failing to specifically consider the "ameliorative" purpose of s. 3(2), which required her to consider the culture of the Aboriginal community the child was born into and not simply the "institutional floor" of Aboriginal culture in general. The appellant asserted that the judge's observation that the respondent mother was Indigenous, and that the child could learn about First Nations through the respondents' weekly activities with the child and his siblings at a First Nations association in their community, amounted to insufficient consideration of the s. 3(2) factor, as the child would not learn about the Secwepemc culture.

HELD: Appeal dismissed. The trial judge properly weighed all of the relevant factors under s. 3(1) of the Act, as well as the additional s. 3(2) factor of the child's Aboriginal heritage and culture, before determining that the proposed adoption was in the best interests of the child. The birth mother did not challenge the judge's findings of fact that the child was emotionally bonded with, and identified with, the respondents as his mother and father, and his siblings as his brother and sister. Nor did she challenge the trial judge’s findings that the child wanted to remain with his adopted family and to remove him from his home would likely be traumatic to him in the short term and cause lasting emotional harm to him in the long-term. While counsel for the appellant maintained that she was not advocating that a "super-weight" be given to s. 3(2), her submission that the judge erred in law by giving insufficient weight to the child's "needs and interests as an Indigenous child, and specifically, as a Secwepemc person and citizen" seemed to suggest otherwise. A child's Aboriginal heritage and cultural identity did not attract a "super-weight" over the other factors. The weight the trial judge attached to preserving the child's Aboriginal heritage and culture, along with the relevant factors under s. 3(1), was an exercise of discretion based on the evidentiary record. The trial judge's decision was therefore entitled to significant deference absent a failure to consider a relevant factor, failure to give any weight or sufficient weight to a relevant factor, or where the decision was clearly wrong. There was no error in the manner in which the judge weighed the s. 3(2) factor. The evidence overwhelmingly supported her decision that making the adoption order was in the best interests of the child.

British Columbia Birth Registration No. XX-XX297 (Re), [2017] B.C.J. No. 1556, British Columbia Court of Appeal, D.M. Smith, E.A. Bennett, P.M. Willcock, J.E.D. Savage and G.J. Fitch JJ.A., August 8, 2017. Digest No. TLD-Sept112017009