VANCOUVER - A British Columbia foster couple is refusing to give up their fight to adopt a Metis toddler they have raised almost since birth, even after the province's highest court ruled against them.
On Tuesday, the Court of Appeal of B.C. dismissed two appeals launched by the Vancouver Island couple, whose emotional case has pitted the importance of indigenous heritage against that of blood relatives.
The couple hopes to stop the Ministry of Children and Family Development from moving the little girl to Ontario to live with her older sisters, whom she has never met, and their adoptive parents.
The foster mom is Metis while the adoptive parents are not, and the B.C. couple has argued the girl's aboriginal background should take precedence. The girl, who is nearly three, went into the couple's care two days after she was born.
The appeal court ruled in a written decision that the ministry is the legal guardian of the little girl and has the authority to select her adoptive parents. The courts cannot circumvent provincial law to make an adoption order, the five-judge panel said.
The foster mom, who cannot be identified in order to protect the child's identity, said in an email she and her husband are disappointed but remain hopeful.
"A child's life should not be decided on technicalities. We believe that someone is going to consider the needs of the child first and foremost. Isn't that what this should be all about?"
The couple's lawyer, Jack Hittrich, said he will return to the appeal court on Wednesday to seek a temporary injunction to keep the toddler in B.C. while the foster parents consider seeking leave to appeal to the Supreme Court of Canada.
The couple has also filed another B.C. Supreme Court petition challenging the decisions of the Director of Child, Family and Community Services on charter grounds, according to the appeal court ruling.
"We are looking at all avenues and certainly my clients are not prepared to give up yet," Hittrich said.
Two earlier petitions were dismissed by the B.C. Supreme Court. The first was dismissed because the Adoption Act prevents foster parents from adopting their wards without the ministry's consent, while the second ruled it was an abuse of process to argue the case a second time.
The couple appealed the decisions, but the five-member panel unanimously upheld the lower-court rulings Tuesday.
Justice Mary Saunders, writing on behalf of the panel, said she was mindful that the couple was pursuing the best interests of the little girl as they see them.
She included an excerpt from a ruling by now-retired justice Glen Parrett, who said that while foster parents lack rights compared to other caregivers, there are good reasons for maintaining their distinct role.
"Generally these placements are intended to be temporary ... There are a great many implications which would flow from the alteration of those relationships, not least of which would be increased levels of litigation and uncertainty."
Children's Minister Stephanie Cadieux cited privacy legislation in saying she could not answer questions about when the province hoped to start adoption proceedings.
But in a statement, she said there is always a transition plan when moving children in care, and it could include phone calls and visits to gradually increase comfort and trust with a new caregiver.
Hittrich said Tuesday was a "sad day" for all foster parents in B.C.
"Foster parents are prevented from bringing on any application for adoption, regardless of how fit they are and how much the child has bonded with them," he said.
"If the director decides they have a different plan, they have the final say and the courts cannot interfere. Essentially, that's what the Court of Appeal decision stands for."
