September 14, 2016 - 6:00 AM
VANCOUVER - A British Columbia foster family has lost its fight in the province's highest court to adopt a Metis toddler in an emotional saga that has pitted the importance of indigenous heritage against that of blood relatives.
The B.C. Court of Appeal has dismissed two appeals launched by the Vancouver Island couple, who hoped to stop the Ministry of Children and Family Development from moving the little girl to Ontario to live with her biological siblings, who she has never met.
The foster mom is Metis while the adoptive parents in Ontario are not, and the B.C. couple had argued the girl's aboriginal background should take precedence. The girl, who is nearly three, has been in the couple's care since two days after birth.
But a five-judge panel ruled unanimously in a written decision released Tuesday that both the couple's appeals of earlier B.C. Supreme Court decisions must be dismissed.
"(The foster parents) face an insurmountable hurdle to achieving the relief sought," the ruling says. "The adoption scheme in British Columbia does not provide for adoption of a child by foster parents at the behest of a court...."
The couple hasn't given up their fight for the girl and has filed a third petition in B.C. Supreme Court that has yet to be resolved, according to the decision. Neither the foster parents nor their lawyer, Jack Hittrich, could be reached for comment.
The Ministry of Children and Family Development said it could not answer questions about when it would commence adoption proceedings, citing privacy legislation.
Throughout the court battle, the girl has remained in the care of her foster parents, who cannot be named to protect the child's identity. The mother has said she and her husband share a strong bond with the toddler and she fears the little girl will suffer psychological harm if moved.
Two B.C. Supreme Court judges ruled against the couple's bids for permanent guardianship in earlier cases. The first dismissed their petition because the Adoption Act prevents foster parents from adopting their wards, unless the ministry decides it's in the child's best interests, while the second ruled it was an abuse of process to argue the case a second time.
Justice Mary Saunders writes on behalf of the panel that the first petition was correctly dismissed, because the court cannot circumvent provincial law in order to make an adoption order.
The Director of Child Welfare is the sole guardian of the child and has the power to select the people with whom she is placed for adoption, the appeal court ruled.
The foster parents had also argued the first judge had given "inadequate attention" to the child's Metis heritage, but the appeal court ruled that the issue was not the subject of the first petition.
As for the second petition, the appeal court says it was based on substantially the same facts of the first petition and the judge was correct to dismiss it.
Saunders writes that she is mindful that the couple is pursuing the best interests of the little girl as they see them. She includes quotes from past B.C. Supreme Court decisions that describe the uncertain status of foster parents, with which she says she agrees.
One excerpt from a ruling by now-retired justice Glen Parrett says while foster parents lack rights compared to other people acting as caregivers, there are good reasons for maintaining their separate and distinct role.
"While there are certainly exceptions, generally these placements are intended to be temporary.... There are a great many implications which would flow from the alteration of those relationships, not least of which would be increased levels of litigation and uncertainty."
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News from © The Canadian Press, 2016