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Table of Contents
I. INTRODUCTION ..................................................................................................... 2
II. BACKGROUND ...................................................................................................... 2
III. HOW TO ADOPT A CHILD IN NUNAVUT .............................................................. 4
IV. WHY THIS CASE IS IMPORTANT ....................................................................... 6
V. PARTIES & INTERVENORS ................................................................................... 8
A. Nunavut Tunngavik Incorporated .................................................................. 9
B. Representative for Children and Youth ....................................................... 13
VI. LEGISLATION & INTERNATIONAL OBLIGATIONS ......................................... 13
A. Constitution Act, 1982 .................................................................................. 13
B. Aboriginal Custom Adoption Recognition Act (ACARA) ........................... 14
C. United Nations Convention of the Rights of the Child ............................... 15
D. Maligarnit Qimirrujiit ..................................................................................... 16
VII. CASE LAW ........................................................................................................ 18
VIII. DECISON IN THIS CASE ................................................................................... 25
A. Standard of Review ....................................................................................... 25
B. Going Forward .............................................................................................. 27
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I. INTRODUCTION
II. BACKGROUND
[3] The infant was born on May 17, 2013. She was premature and was
born in the home community of the father, where the parents were
living with the paternal grandparents. Immediately following the birth
the infant and her mother were medivaced to the south. Once the
baby stabilized the mother and baby returned to the community and
the home of the paternal grandparents and continued to live there
with the father.
[4] A short time later the baby was once again medivaced south.
Although it is not clear who accompanied the baby on the medivac
(the mother or the paternal grandmother) it is clear that both the
mother and the paternal grandmother were there together with the
baby at some point. At this time there might have been some
discussion about the grandmother adopting the baby. It appears that
is was these discussions that led the paternal grandmother to
understand that a custom adoption had occurred. However,
subsequent events make it clear that there was not agreement on
this.
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[5] In September of 2013, when the baby was able to return to Nunavut,
the mother and baby did not return to reside with the father and the
paternal grandparents. Instead they returned to the mothers home
community and lived with the maternal grandparents.
[8] Neither the mother, who was herself a minor, nor the maternal
grandparents were contacted or interviewed by the Custom Adoption
Commissioner. According to the evidence before the Court, the
Commissioner was unable to contact them because she did not
have sufficient minutes on her cell phone to call them.
[9] Presumably the father was both aware of and consented to the
custom adoption as he was living in the home with the paternal
grandparents.
[12] In Nunavut there are two ways of adopting a child. One way is
in accordance with Inuit custom. This does not involve the Courts or
any government agencies. If a child has been adopted in
accordance with Inuit custom, an adoptive parent may apply for a
certificate recognizing the adoption. This is done pursuant to the
ACARA, by providing certain information to a Custom Adoption
Commissioner and requesting a Certificate. The Commissioner
reviews the information and if he or she is satisfied that the child was
adopted in accordance with Inuit custom, a Certificate recognizing
the adoption is issued. The Certificate is registered with the Nunavut
Court of Justice and is enforced as an order of the Court. The
Certificate facilitates the issuance of birth certificates and other
similar documentation.
[13] An adoption may also proceed under the Adoption Act, SNWT,
1998, c 9 (Nu) [Adoption Act]. The Adoption Act provides for
departmental adoptions (where the child is in the permanent care of
social services), step-child adoptions (where the adopting parent is a
step-parent) and private adoptions (adoptions arranged between the
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[14] A private adoption under the Adoption Act requires that the
Director of Adoptions be notified of the intention to place a child for
adoption and requires that a pre-placement report be completed
before the child can be placed. The biological parents must provide
written consent to the adoption, after having received advice as to
the legal effects of an adoption. The consent may be revoked within
a specified time period.
[17] Over recent years the Court has seen a variety of issues arise
in relation to custom adoptions. These issues include, as in this
matter, issues relating to the consent of the biological parents. Other
issues which have arisen relate to who is entitled to rely on the
custom, two applications to custom adopt the same child (one by
each set of grandparents), custom adoption certificates which
recognize the adoption of children who are now adults after the
death of an adoptive parent and amendments to custom adoption
certificates which are substantive in nature. There are also issues
regarding adoptions generally which have been reported on but
which do not make their way to the Courts, such as the use of social
media to seek out prospective adoptive parents.
[18] As the following table of statistics taken from the 2015 Annual
Report of the Nunavut Court of Justice (Nunavut Court of Justice,
Office of the Senior Judge, Timivut: Our Footprints A Statistical
and Comparative Review of Court Operations in Nunavut 2015 (April
26, 2016) retrieved from: www.nunavutcourts.ca/annualreports) at
page 44) show, custom adoptions are by far the most common type
of adoption in Nunavut.
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[22] Given the significance of issues in this case, the Court and the
parties were of the view that input should be sought from agencies
both knowledgeable in Inuit custom adoption and those with a
mandate to deal with issues relating to children and social issues.
[24] The Court and the parties were of the view that it was
important to have participation from Inuit organizations. Accordingly,
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3. Each of the entities served shall have 30 days from the date of
service to bring an application to intervene in the litigation.
[25] Each of the four Inuit Organizations was served in the summer
of 2014. None responded.
[28] NTIs 2014-15 Annual Report on the State of Inuit Culture and
Society, prepared pursuant to section 32.3.4 of the NLCA and which
focuses on the implementation of Article 32 of the NLCA, states:
Social and cultural fields are interpreted by NTI to include, but not
be limited to, education, health, housing, research, language,
social assistance, hunter support, adoption, family law,
administration of justice, and others of a similar nature. [emphasis
added]
[29] The Court recognizes that it is not a party to the NLCA and as
such, is not bound by the Agreement and required to seek input
pursuant to Article 32. However, the Court also recognizes and is
sensitive to the context in which it functions. An invitation to the Inuit
Organizations to intervene in a case of such importance to Inuit
culture, on a subject matter which NTI recognizes as falling within
Article 32, was a recognition of the unique circumstances of Nunavut
and the important role of Inuit in determining such issues.
[37] Prior to ACARA, application was made to the Court for the
issuance of a declaration recognizing a custom adoption. ACARA
sets out a simplified procedure for recognition of a custom adoption
which does not involve the Courts.
[40] The UN convention on the Rights of the Child came into force
on September 2, 1990 and was ratified by Canada in December of
1991.
Article 21
Parties that recognize and/or permit the system of adoption shall
ensure that the best interests of the child shall be the paramount
consideration and they shall:
D. Maligarnit Qimirrujiit
<http://assembly.nu.ca/library/GNedocs/2000/000446-e.pdf>) [First
Report] the Commission identified procedural issues relating to the
ACARA
[52] The Court of Appeal upheld the decision of the lower Court in
declaring that an adoption had taken place in accordance with
custom.
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[59] Over time the case law regarding custom adoptions developed
so that while Courts provided declaratory relief in recognizing a
custom adoption, the nature and legal consequences of an
aboriginal custom adoption were not to be determined by reference
to the legislation pertaining to adoptions but rather, to aboriginal
custom.
[61] At the hearing the Court heard from Elders as to the tradition
of custom adoption.
[62] In the case of S.K.K. the Court was required to deal with the
changing nature of custom adoptions. The Court heard evidence
that traditionally, adoptions required the consent and agreement of
both the biological parents and the adoptive parents, that adoptions
were within the extended family, that contact between the biological
parents and the child would continue, and that if something
happened to the adoptive parents the child would often return to the
biological parents. The Elders described a change in custom
adoptions. They noted that there were many more custom
adoptions taking place now than in the past, that while in the past
adoptions were usually for the benefit of the adoptive parents, they
now more often for the benefit of the biological parents who were
unable or unwilling to care for the child. They also noted that
grandparents are taking on the responsibilities of their grandchildren
not always through mutual agreement, but often through necessity.
[63] This led the Court in K(SK) v. S(J). to the conclusion that there
now two classifications of custom adoption: traditional or pure
custom adoption in which there is agreement and intention by all
parties for an adoption, and pragmatic or practical custom adoption,
where someone takes on responsibility for the care of a child out of
necessity because the biological parents are unable or unwilling to
care for the child (K(SK) v. S(J) at para 52).
[64] Despite this finding that there are two classifications of custom
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[66] The biological mother did not pursue the matter and the case
was back before the Court a few years later. By this time the child
was now living with the maternal grandfather. The biological father
had been paying child support to the biological mother when the
child was in her care. When the child came into the care of the
maternal grandfather the biological father paid the child support to
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the maternal grandfather. The Court vacated the order for child
support, stating that there was no basis upon which the Court could
conclude that the biological father had a legal obligation to pay child
support in the context of a custom adoption. The Court stated that
the legal consequences of a custom adoption would be governed by
aboriginal customary law but that there was no evidence before it to
determine what that custom was.
A. Standard of Review
[72] This Court is also in the position of not having to determine the
appropriate standard of review on the procedural issue as,
regardless of the standard applied, reasonableness or correctness,
the procedure cannot withstand scrutiny and the certificate must be
vacated.
B. Going Forward
[74] The parties in the matter before the Court agreed that the
Custom Adoption Certificate ought to be vacated. This case did
not challenge validity of the ACARA nor did the parties call for
consideration of the constitutional implications of the existing
legislative regime. This decision does not purport to address or
determine those issues.
[75] What this matter has done, is once again draw stark attention
to continuing issues presented by the application of ACARA. These
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d. Should there be age limits on who can adopt (neither too old
or too young)?
g. What rights does the child have towards the biological parents
(eg. inheritance, support, etc.)
___________________
Justice S. Cooper
Nunavut Court of Justice