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ADOPTION - Considerations - Best interests of child - Adoption by custom - Practice and procedure

Monday, November 20, 2017 @ 8:35 AM  

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Appeal by both the birth parents and foster parents of a child from a Supreme Court of British Columbia order striking their petition as an abuse of process. The appellants asserted the child was adopted by the foster parents by way of custom adoption. A chambers judge had concluded the petition was an abuse of process because it argued legal claims and facts that were inconsistent with prior litigation the appellants commenced. The appellants’ goal in all of the prior proceedings was to facilitate the foster parents’ adoption of the child. The chambers judge pointed out though that if the adoption had already taken place, none of the other litigation should have been brought as, in each, the parties had sought orders that would enable the foster parents to adopt the child. The appellants had argued that they had been unaware until recently that their actions constituted a valid aboriginal custom adoption that could be recognized by the courts. Prior to this appeal, the appellants applied for and obtained from a custom adoption commissioner (Commissioner) in the Northwest Territories (NWT) a certificate recognizing the foster parents’ aboriginal custom adoption of the child. The certificate was subsequently filed in the Supreme Court of the Northwest Territories. Pursuant to s. 4 of the Aboriginal Custom Adoption Recognition Act, a certificate filed in the Supreme Court of the Northwest Territories was deemed to be an order of that court. The Director under the British Columbia Child, Family and Community Service Act (Director) had then filed a notice of judicial review seeking an order quashing the decision, vacating the certificate relating to the child and prohibiting the Commissioner from issuing a custom adoption certificate with respect to the child. The grounds of review included that the Commissioner did not have statutory authority to make the decision and the Director did not receive notice of the application and was not given an opportunity to make submissions. While all counsel had emphasized it was in the child’s best interests to resolve the matter as quickly as possible, they acknowledged that until the validity of the NWT order was dealt with, the matters on appeal could not be fully resolved.

HELD: Appeal stayed. With reluctance, the appeal was stayed until the NWT proceedings were concluded or until a further order of the Court of Appeal was made. The unusual circumstances meant that a stay would not compromise the child’s best interests. The existence of conflicting decisions had the potential to bring the administration of justice into disrepute. The existence of the NWT order altered the factual foundation from that which was before the chambers judge, possibly significantly. The difficulty in this case was whether this new evidence would survive the Director’s challenge on judicial review. Until that was known, the Court of Appeal could not properly analyze the issues raised on appeal.

A.S. v. British Columbia (Director of Child, Family and Community Services), [2017] B.C.J. No. 2195, British Columbia Court of Appeal, R. Goepel, G. Dickson and G.J. Fitch JJ.A., November 2, 2017. Digest No. TLD-November202017003