A B.C. Métis couple have lost their bid to prevent the province's child protection agency from removing a Métis toddler they've raised since infancy.

The Ministry of Children and Family Development had made plans to place the two-year-old child with a non-Métis couple in Ontario who are raising the child's siblings.

A B.C. Supreme Court judge has rejected an application by the Vancouver Island foster parents to make a constitutional argument that the best interests of the child are being ignored.

The couple's lawyer, Jack Hittrich, has filed an appeal, but in the meantime, he said, his clients are petrified the Ministry of Children and Families might take away the child who calls them "Mommy" and "Daddy."

Jack Hittrich

Lawyer Jack Hittrich says he plans to appeal the B.C. Supreme Court decision in the hopes of making a charter argument.

"The foster parents are extremely distressed, particularly the foster mother," he said outside court.

"She's talking about maybe moving to Ontario to be close. She's thinking of selling her home so that somehow she can work out some arrangement to stay in touch with this little girl. It is horrific."

Legal fight with broad implications

The toddler is caught in a legal fight that could have implications for foster children everywhere. The Ontario couple are raising her two siblings, whom she has never met, and Hittrich said the child's biological parents support the B.C. couple.

But the director of Child, Family and Community Services has sole guardianship of the child, and the agency's contract with the foster parents gives it the right to place the child as it sees fit.

Last September, the foster parents filed a petition in B.C. Supreme Court seeking guardianship of the child and an order prohibiting the ministry from removing her and adopting her out.

Justice George Macintosh dismissed those arguments last December, which led to the latest proceedings.

In a new petition, Hittrich applied to make a charter argument that the child's rights were being violated.

To that end, he argued that even the judge had said that if he had to determine "which life would better serve [the child's] best interests," he "would at least want a trial with witnesses."

"Basically, this little foster girl and the foster parents are denied proper access to the courts to have this little girl's best interests considered," Hittrich said outside court.

"It is an access to justice issue."

Can't argue same issue twice

But in making this week's ruling, Justice Grace Choi said the earlier decision effectively meant the matter had already been decided.

Any constitutional arguments should have been raised as part of those proceedings, she ruled.

"It is clear and obvious the facts issued and relief sought are essentially the same," Choi wrote.

She found they all "stem from the petitioners' desire to continue a relationship with [the child], whether that is by way of adoption, guardianship or contact."

In earlier statements, the ministry has said any decisions about the child's future would have been considered with her best interests in mind by an "exception committee" consisting of social workers and a Métis delegate.

The B.C. Métis Federation is backing the rights of the foster parents in the fight.

Hittrich is arguing to have the appeal court hear both Supreme Court rulings as one issue.

But he said his priority is obtaining some type of order to keep the child with the B.C. foster parents pending any decisions.