March 04, 2016 - 1:00 PM
VANCOUVER - A Vancouver Island couple who feared a Metis toddler was about to be removed from their home say they will hug the little girl in celebration after a judge ruled they can keep her in their care for now.
The foster parents' battle to win the right to adopt the two-and-a-half-year-old is nowhere close to being over after the decision on Friday that granted the interim order.
Justice Mary Newbury of the British Columbia Court of Appeal ruled the toddler should remain in her current home, rather than be moved to live with biological siblings in Ontario. Newbury said her intent was to "preserve the status quo" until appeals in the case are decided.
She said her aim is to prevent the girl from being moved out of province with the possibility she could be sent back to B.C.
"It seems to me (the child) is entitled at least to a second opinion of this court ... as to whether the foster parents should be precluded from being seriously considered as adoptive parents," Newbury said from the bench.
Outside court, the girl's foster father said the couple are getting worn down emotionally but the decision gives them some breathing space.
"And now we have to formulate a compelling argument that sees her placed with us. That's the end game," said the man, who cannot be named to protect the child's identity.
A lawyer for B.C.'s Children's Ministry had argued its director is the child's sole guardian and has unilateral discretion to determine where the child should ultimately be placed.
Court heard that under the Adoption Act and other provincial legislation, foster parents are not permitted to apply to adopt their wards. They may only get permanent custody if the director decides it's in the child's best interests.
The ministry believes the child should be moved to live with her two sisters, who she has never met.
Lawyer Leah Greathead, representing the Children's Ministry, argued that biological ties outweigh the fact the girl has formed bonds with the couple in B.C.
The girl has lived with her foster parents since just after her birth. But her case has raised cultural issues because the foster mother is Metis, while her potential adoptive parents in Ontario are not.
Court heard the out-of-province family only learned their own adopted children had Metis heritage after the B.C. toddler's case went to court.
Greathead declined to comment after the ruling.
No dates have been scheduled yet for the appeal, but Newbury urged that the case proceed expeditiously. The girl's young age means the more time that passes before she has a permanent home will affect her well-being, say her foster parents.
"That's what (her) physicians say, that's what all the research says and add the cultural component and it's hard to see how any other result would be just," said the foster father.
Two judges have ruled against the couple's bid for permanent guardianship in earlier cases in B.C. Supreme Court. The first dismissed their petition based on the existing provincial legislation, while the second ruled it was abuse-of-process to argue the case a second time.
The couple's lawyer said Newbury's decision is a big victory because she recommended both appeals be heard together by a panel of five judges instead of the usual three.
Jack Hittrich said he's hopeful the panel will review B.C.'s adoption legislation, which he said gives unfettered discretion to the director and bars the courts from deciding who can adopt.
"This is a great day for equity and fairness, as opposed to technical rules," he said outside court. "It is a victory for all foster children in a situation where the director appears to have absolute control over the adoption process."
— Follow @TamsynBurgmann on Twitter
News from © The Canadian Press, 2016