A couple say they believe social workers in the British Columbia Children's Ministry are carrying out a "personal vendetta" against them for fighting to keep a Métis toddler they've raised as foster parents since birth.
The couple, who cannot be named, were in the B.C. Court of Appeal on Monday asking a judge to temporarily block the ministry from moving the two-and-a-half-year-old girl to Ontario to live with older siblings she has never met.
"They have absolutely zero respect for the child's needs. They're mad at us and they've made it clear," the foster mother said outside court.
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The case has raised cultural issues. The child's foster mother is Métis, while the caregivers in Ontario are not.
The child's foster father said they haven't been given a firm deadline when she will be removed from their care on Vancouver Island.
Justice Mary Newbury reserved her decision, but she told the lawyers she found it "puzzling" that the ministry's director was so strongly in favour of the out-of-province family.
"It seems perfect" that the little girl remain in B.C., Newbury said, adding it seems "very cruel" to uproot her.
Petition dismissed in B.C. Supreme Court
Last week, a B.C. Supreme Court judge dismissed the couple's petition to stop the move, finding it was an abuse of process because a similar petition had already been dismissed. The couple has filed an appeal of that decision but it may not be heard for some time, which is why they're asking for the interim order.
Under the law, the director of the Children's Ministry is the child's sole guardian and has unilateral discretion to determine what is in her best interests.
Jack Hittrich, the foster parents' lawyer, argued the"best interest test" is not being followed by the ministry. A family law principle states that decisions must be child-focused and seek to address interests from a child's perspective, and not that of the government or foster parent, he said.
"Should she be ripped from the only home and the only parents she has every known ... and be traumatized by being moved to total strangers?" he asked the judge.
Hittrich said provincial law contains gaps that act as obstacles to keeping the child in B.C., highlighting a section that says foster parents cannot adopt. The Adoption Act also does not contain any explicit criteria for considering biological siblings as rationale for moving a child, he said.
The girl would experience more upheaval if she was moved and then ordered returned, should the case eventually be decided in the foster couple's favour, Hittrich argued.
Foster parents are 'paid caregivers'
Leah Greathead, a lawyer for the ministry, said the law clearly sets out the role of the foster parent as a paid caregiver who only assumes temporary care.
She disputed Hittrich's characterization of the couple as "de facto parents," saying the situation is analogous to a nanny who is paid to spend time with a child. Just because they bond, does not mean the nanny has a right to assume permanent care, she said.
"They are not a parent in law," she said of the couple.
"They are expected to love and bond with the child in their care and then to assist in transitioning."
Tim Dickson, a lawyer for the Public Guardian and Trustee of British Columbia, said the decision is difficult because there are "two good options" but ultimately the biological ties are the most important.
It was crucial to permanently place the girl as soon as possible, he told the judge, adding that she is too young to likely have memories of her first family.
"On the other side, she has a life ahead of her," said Dickson. "In Ontario she has siblings close to her age, with whom she can bond and grow up."