N.W.T. government opposes custom adoption granted to Métis couple from B.C.

The Northwest Territories government says an Indigenous custom adoption approved for a B.C. couple who moved to the N.W.T. should never have been granted.

Lawyer for commissioner who granted adoption says stronger tie to territory needed for it to be valid

The Métis child, when she was two, walks with the foster father in Butchart Gardens in Victoria, B.C. (Handout/The Canadian Press)

The Northwest Territories government says an Indigenous custom adoption approved for a B.C. couple who moved to the N.W.T. should never have been granted.

But the parents who applied for and received the custom adoption maintain that territorial or provincial governments can't overturn it, because custom adoption is a constitutionally protected Indigenous right.

According to the N.W.T.'s Department of Health and Social Services, Indigenous custom adoption is a tradition that's been passed down between generations, often recognized with a verbal agreement.

The B.C. couple says in 2014, they struck such a verbal agreement with the birth parents to adopt the child. At the time, the child was living with a non-Indigenous family in Ontario, which adopted her two siblings. The B.C. couple were the foster parents of the child for three years after her birth.

"At issue is the registration of a custom adoption. There's no question the adoption occurred," said the foster mom, who is also Métis.

Her name, the name of the foster father and the name of the child are protected by a publication ban. The court file containing documents from all sides is sealed.

The Métis child at the heart of a court battle, along with her former foster parents, cannot be identified due to a publication ban. (Michael McArthur/CBC)

After losing several court battles and appeals in B.C. to have the custom adoption legally recognized, the foster parents moved to Yellowknife. The mother said they moved to the city for business reasons and at the time, had no idea there was a custom adoption law in the territory.

They asked for and received a custom adoption certificate from the Yellowknife custom adoption commissioner, Mary Beauchamp. But the lawyer for the N.W.T. justice department has asked for the adoption to be quashed and the certificate recognizing it cancelled.

Couple not 'connected' to N.W.T., say lawyers

"The only connection to the Northwest Territories is the respondents' relocation to the N.W.T. approximately one month before applying [for the adoption]," said Hayley Fitzgerald during a hearing on Monday.

Fitzgerald said the N.W.T. Aboriginal Custom Adoption and Recognition Act was intentionally drafted with few details to give Indigenous people the freedom to use their own customs, "but this does not mean it was drafted to allow any Aboriginal person in Canada to use it."

Fitzgerald said Beauchamp did not have the authority to approve the custom adoption of a child from another jurisdiction.

Sheila MacPherson, representing Beauchamp in her role as commissioner, agreed, saying there has to be a stronger tie to the N.W.T.

The lawyer for B.C.'s director of child, family and community services had other concerns about the adoption.

"They picked and chose what information they gave to Commissioner Beauchamp ... hoping for a better outcome," said Trisha Paradis.

In an affidavit filed in the case, Beauchamp said she didn't know the child was not living in Yellowknife with the foster parents and didn't know the B.C. director of child services had continuing custody of the child.

The foster mother said she has proof that was not the case, but was not allowed to present it.

Though officially the child's guardian, the B.C. director was not notified of the couple's request for a custom adoption in the N.W.T.

Paradis said the goal of B.C. child services is to reunite families. The child continues to live with the family in Ontario, which has adopted her two siblings.