B.C. foster parents lose Appeal Court battle for Métis toddler

The B.C. Court of Appeal has rejected a bid by the foster parents of a Métis toddler to fight the provincial government's plans to place the child with adoptive parents she has never met in Ontario.

• B.C. foster parents win injunction to keep Métis toddler
• Métis toddler locked in adoption battle between foster parents, government

In a unanimous decision released Tuesday, the five-judge panel found that the couple had failed to identify a gap in B.C.'s Adoption Act that would allow them to adopt the nearly three-year-old girl — known as S.S. — instead of the Ontario family, who have already adopted the child's two older sisters.

Foster parents are also Métis

The lawyer for the Vancouver Island foster parents — L.M. and R.B. — said his clients hope to appeal the latest decision to the Supreme Court of Canada.

"They're obviously undergoing some very intense emotions and certainly the last few months have been extremely difficult on the entire family," said Jack Hittrich.

"We were obviously hoping for a better result. Unfortunately the decision is clearly quite devastating for everyone."

Hittrich said the couple will apply to keep custody of the child pending any ruling on an appeal to Canada's highest court.

As foster parents, L.M. and R.B. do not have the right to adopt a child who was placed in their care through a contract with the director of Child, Family and Community Services.

The foster parents are also Métis, whereas the Ontario couple are not. The child's birth parents support an adoption by the foster parents.

The situation has resulted in a convoluted series of B.C. Supreme Court proceedings.

And while the Appeal Court decision represents a blow to L.M. and R.B., it won't be the end of their fight; in addition to the Supreme Court of Canada appeal, the B.C. Supreme Court will also hear a challenge from the child's birth parents.

The couple initially failed in their bid to ask a B.C. Supreme Court judge to issue an order for them to adopt the child.

The Appeal Court found that would be beyond the scope of the lower court's jurisdiction.

"In my view, it has not been open, and is not open, to a court to make an adoption order, fundamentally altering the identity of a person's parents, where such a process is not provided by legislation," Justice Mary Saunders wrote for the majority.

Charter challenge remains

The Appeal Court judges also rejected an appeal of a second B.C. Supreme Court decision in which a judge rejected the couple's attempt to argue that the out-of-province adoption would violate the Charter of Rights and Freedoms.

The judge in that case dismissed their petition, refusing to hear the charter challenge, arguing that the issues at hand had already been dealt with in the first decision — in which the judge found the province hadn't acted in bad faith and the law was solid.

The judge said the first petition was the place to make the charter challenge, and that the foster parents had failed to do so.

The Appeal Court agreed.

"I am mindful, in preparing these reasons for judgment, that L.M. and R.B. are pursuing the best interests of S.S. as they see them," Saunders wrote.

The fight is not over yet, though.

According to the Appeal Court ruling, the birth parents have applied in provincial court to cancel the continuing custody order that gives the province the right to decide the child's future.

The Appeal Court decision says that in the petition remaining before the B.C. Supreme Court, the birth parents are mounting a charter challenge to the decisions of the director of Child, Family and Community Services.