2017 NUCJ 5, 2017 NUCJ 5

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R.A., as Guardian ad litem for her minor child, I.A v. S.K. and D.K. 2017 NUCJ 5 Date of Judgement: 2017-03- 16 File Number: 20-13-623 Registry: Iqaluit Applicant : R.A., as Guardian ad litem for her minor child, I.A -and- Respondent: S.K. and D.K. ________________________________________________________________________ Before: The Honourable Madam Justice S.

Cooper Counsel (Applicant): Jack Squire Counsel (Respondents): Susan Switch Location Heard: Iqaluit, Nunavut Date Heard: September 16, 2015 Matters: Aboriginal Custom Adoption Recognition Act S.N.W.T. 1994, c.26 REASONS FOR JUDGEMENT (NOTE: This document may have been edited for publication)

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 I.

INTRODUCTION [ 1 ] This is an application to vacate a custom adoption certificate issued pursuant to the Aboriginal Custom Adoption Recognition Act S.N.W.T. 1994, c.26 (Nunavut) [ ACARA ]. II. BACKGROUND [ 2 ] Throughout this decision the parties will be referred to in reference to their biological relationship to the infant. [ 3 ] The infant was born on May 17, 2013. She was premature and was bo r n 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. [ 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 mother’s home community and lived with the maternal grandparents.

[ 6 ] A Custom Adoption Certificate was issued on October 1, 2013, and was registered with the Court on October 10, 2013. It stated that the infant had been adopted at birth to the paternal grandparents of the infant. [ 7 ] The Custom Adoption Certificate was issued by a Custom Adoption Commissioner residing in the same community as the paternal 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. [ 10 ] On December 15, 2013, the mother received a Facebook message from the paternal grandmother stating that she had custom adopted the baby and that the baby should be brought to the paternal grandparents by Christmas.

Inquiries by the mother and the maternal grandparents confirmed that a Custom Adoption Certificate had indeed been issued. Application was brought to quash the decision of the Custom Adoption Commissioner to issue a Certificate. [ 11 ] The parties are in agreement that that Custom Adoption Certificate should be quashed. III. HOW TO ADOPT A CHILD IN NUNAVUT [ 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 birth parents and the adoptive parents).

The majority of adoptions done under the Adoption Act are private adoptions. [ 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. [ 15 ] If a child from Nunavut is being adopted outside of the Territory, the child cannot be removed from the Territory until there is a pre-placement report and the approval of the Director of Adoptions. If the child to be adopted is aboriginal, the appropriate aboriginal organization, Qikiqtani Inuit Association [QIA], Kivalliq Inuit Association [ Kivalliq KIA ] or Kitikmeot Inuit Association [Kitikmeot KIA]) must be notified and consulted.

Once a child has been placed for adoption and has been with the adoptive parents for at least 6 months, a Family Union Report is done by an adoption worker. References and criminal record checks are part of the placement process. Application is then made to the Nunavut Court of Justice to grant the Adoption Order. [ 16 ] One of the distinctions between an aboriginal custom adoption and an adoption under the Adoption Act is the requirement for home studies and other checks to ensure the suitability of the adoptive parents.

IV. WHY THIS CASE IS IMPORTANT [ 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.

Year No. of Live Births No. of ACARA Adoptions No. of Adoption Act Adoptions % of Total Adoptions ACARA Adoption Act 2008 805 191 3 98.5 1.5 2009 877 211 4 98.1 1.9 2010 828 222 7 96.9 3.1 2011 837 182 7 96.3 3.7 2012 843 93 8 91.2 8.8 2013 914 282 15 95 5 2014 N/A 144 18 85 15 2015 N/A 170 13 93 7 [ 19 ] The face of custom adoption is changing. The Court has seen custom adoptions where Inuit children go to mixed couples (Inuit and non-Inuit) and to non-Inuit couples.

The ubiquity of social media has led to birth mothers seeking adoptive parents via social media and expanded the geographic range over which adoptions occur. Children are increasingly being custom adopted to adoptive parents outside of Nunavut. [ 20 ] There is also the potential for tension between aboriginal custom adoption practices and Euro-Canadian adoption practices.

For example, if the parties involved are a mix of Inuit and non-Inuit, their understanding of the rights and responsibilities relating to adoption may differ. [ 21 ] The Court has previously called upon the Government of Nunavut and Inuit organizations to work with Custom Adoption Commissioners in standardizing practices and to address the various issues relating to adoption that arise in the context of changing social conditions. V.

PARTIES & INTERVENORS [ 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.

[ 23 ] The Government of Nunavut participated in some case management conferences early in the litigation however, its position was clear that unless there was a challenge to the ACARA , it would not be participating in the litigation. The Government did participate to the extent of providing the “record” of the Custom Adoption Commissioner who issued the Certificate and a copy of the manual provided to Custom Adoption Commissioners. [ 24 ] The Court and the parties were of the view that it was important to have participation from Inuit organizations.

Accordingly, a Case Management Order was issued which stated: UPON this matter having come before me for case management; AND WHEREAS the matter raises issues regarding the nature and scope of aboriginal custom adoption and the procedures used pursuant to the Aboriginal Custom Adoption Recognition Act ; AND WHEREAS the parties agree that the Designated Inuit Organizations, as defined in the Nunavut Land Claims Agreement, have an interest in the issues to be determined by the Court; IT IS HEREBY ORDERED THAT: 1.

Notice of this litigation be provided to Nunavut Tunngavik Incorporated, the Qikiqtani Inuit Association, the Kivalliq Inuit Association and the Kitikmeot Inuit Association by serving each entity with copies of this Order, the Originating Notice, the affidavits of the Applicant and her minor child, filed January 13, 2014, and the affidavits of the Respondents, filed May 13, 2014; 2. Service may be effected by providing filed copies of the documents or scanned or faxed copies of the filed documents. 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. A. Nunavut Tunngavik Incorporated [ 26 ]

Article 32 of the Agreement between the Inuit of the Nunavut Settlement Area and her Majesty the Queen in right of Canada, 25 May 1993 (Ottawa, ON: Published under the joint authority of the Tungavik and the Hon T Siddon, Minister of Indian Affairs and Northern Development, 1993, Retrieved Online from: <http://www.justice.gov.nu.ca/apps/UPLOADS/fck/file/NLCA.pdf>), commonly referred to as the Nunavut Land Claims Agreement [ NLCA ], establishes the Nunavut Social Development Council (NSDC).

Article 32 provides:

PART 1: GENERAL PRINCIPLES 32.1.1 Without limiting any rights of Inuit or any obligations of Government, outside of the Agreement, Inuit have the right as set out in this

Article to participate in the development of social and cultural policies, and in the design of social and cultural programs and services, including their method of delivery, within the Nunavut Settlement Area.

PART 2: GOVERNMENT OBLIGATIONS 32.2.1 Government obligations under

Section 32.1.1 shall be fulfilled by Government: (

a) providing Inuit with an opportunity to participate in the development of social and cultural policies, and in the design of social and cultural programs and services, including their method of delivery, in the Nunavut Settlement Area; and (

b) endeavouring to reflect Inuit goals and objectives where it puts in place such social and cultural policies, programs and services in the Nunavut Settlement Area.

PART 3: ESTABLISHMENT OF NUNAVUT SOCIAL DEVELOPMENT COUNCIL (COUNCIL) 32.3.1 A Nunavut Social Development Council (Council) shall be established to promote the principles and objectives in Sections 32.1.1 and 32.2.1, notwithstanding that there may be other bodies established in the Agreement or outside it which also promote these principles and objectives. 32.3.2 The Council shall be incorporated to operate as a non-profit DIO and its tax status shall be in accordance with laws of general application applicable from time to time. 32.3.3 The Council shall assist Inuit to define and promote their social and cultural development goals and objectives and shall encourage Government to design and implement social and cultural development policies and programs appropriate to Inuit.

Accordingly, the Council may: (

a) conduct research on social and cultural issues; (

b) publish and distribute information on social and cultural issues to Inuit, government and the public; (

c) consult and work in collaboration with community, regional, territorial, federal and other bodies and agencies involved in social and cultural issues; (

d) advise Inuit and governments on social and cultural policies, programs and services that relate to the Nunavut Settlement Area; and (

e) undertake other activities relating to social and cultural issues in the Nunavut Settlement Area. 32.3.4 The Council shall prepare and submit an annual report on the state of Inuit culture and society in the Nunavut Settlement Area to the Leader of the Territorial Government for tabling in the Legislative Assembly, as well as to the Minister of Indian Affairs and Northern Development for tabling in the House of Commons. [ 27 ] The NSDC was established in 1996 and was dissolved in 2002.

It was replaced by NTI’s Department of Social and Cultural Development (Nunavut Tunngavik Incorporated, 2014-15 Annual Report on the State of Inuit Culture and Society (Iqaluit: NTI 2016) [NTI 2014-15 Annual Report]). [ 28 ] NTI’s 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. [ 30 ] It is unfortunate that none of the Inuit Organizations accepted the invitation to intervene. B. Representative for Children and Youth [ 31 ] In the fall of 2014 the newly appointed Representative for Children and Youth was also served with Notice and given the opportunity to intervene in the proceedings.

[ 32 ] The legislation constituting the Office of the Representative for Children and Youth was newly enacted legislation and not all of its provisions were in force. In particular, at the time of receiving notice of these proceedings the

section granting certain powers under the Act was not in force. Consequently, the Representative was of the view that she did not have the authority to participate in the proceedings. VI. LEGISLATION & INTERNATIONAL OBLIGATIONS [ 33 ] There are many legislative obligations and international treaties that impact the consideration of aboriginal rights and the rights of children. Such governing documents provide an important context and framework to the discussions surrounding custom adoption practices.

In considering the issues impacting this case, the Court must reflect on this context and what, if any, impact these documents have upon the custom adoption process. A. Constitution Act, 1982 [ 34 ] Section 35(1) of the Constitution Act , 1982 states that: The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. [ 35 ] The scope of the protections afforded aboriginal custom adoption afforded under the Constitution was not argued in this matter and remains to be determined. B.

Aboriginal Custom Adoption Recognition Act (ACARA) [ 36 ] The ACARA was enacted in 1995 and was inherited by Nunavut on April 1, 1999. [ 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. [ 38 ] Under ACARA , Adoption Commissioners who are familiar with custom adoptions are appointed by the Minister responsible for the Act. Application may be made to a Commissioner for a certificate recognizing a custom adoption.

Prior to issuing the Certificate the Commissioner must satisfy him or herself that a custom adoption has taken place. Once the Certificate is issued it can be registered with the Court and thereafter is given effect to as if it were an order of the Court. [ 39 ] Neither ACARA nor the Regulations provide a procedure for the Commissioner to follow. The Custom Adoption Commissioner’s Manual is nothing more than a guide to filling out the forms. With respect to the information and inquiries as to whether there has in fact been a custom adoption, the Certificate states: A.

Check one of the following: __ I am satisfied that on review of any materials provided to me and and statements made to me, an adoption has occurred in accordance with aboriginal customary law; or ___ The information pertaining to this adoption was found to be incomplete. B. Attach a statement of any person from whom, under aboriginal customary law, you are required to obtains a statement.

C. United Nations Convention of the Rights of the Child [ 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. [ 41 ] In regards to adoptions, the Convention states:

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: (

a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; (

b) Recognize that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin; (

c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; (

d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it; (

e) Promote, where appropriate, the objectives of the present

article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs. D. Maligarnit Qimirrujiit [ 42 ] In the fall of 1999 Maligarnit Qimirrujiit, the Nunavut Law Reform Commission, was established and given the mandate of reviewing legislation inherited from the Northwest Territories and recommending reform.

One of the areas considered was that of adoption. [ 43 ] In its First Report to the Premier (Nunavut, Maligarnit Qimirrujiit, First Report to the Premier, (Iqaluit: Nunavut Law Reform Commission, 30 October 2000) Retrieved online from: < http://assembly.nu.ca/library/GNedocs/2000/000446-e.pdf >) [ First Report ] the Commission identified procedural issues relating to the ACARA [ 44 ] Amongst the procedural issues identified were that Custom Adoption Commissioners often spend their own personal funds for expenses such as mailing and telephone charges and that Commissioners do not have offices and are not trained. (see First Report , pages 19-22) This lack of resources and training was identified as a disincentive to taking on or continuing in the role.

One would think that ensuring Commissioners have adequate funds for mailing and telephone charges would be an easy issue to address, but over 10 years later, the questionable procedure in this particular custom adoption was attributable to the Commissioner not have sufficient cell phone minutes to make a call to the mother or maternal grandparents to ascertain their position on the adoption. [ 45 ] In the Second Report to the Premier (Nunavut, Maligarnit Qimirrujiit, Second Report to the Premier, (Iqaluit: Nunavut Law Reform Commission, 2003) Retrieved online from: < http://assembly.nu.ca/library/GNedocs/2003/000445-e.pdf >) [ Second Report ], the

Commission considered substantive aspects of custom adoption.

Many issues were identified, including issues relating to cross-culturalmarriages, cross-cultural children, out of jurisdiction adoptions, ensuring kinship practices are maintained, age of adoptive parents,gender preferencing, and who has the authority to make the decision as to whether the child should be adopted. [46] The Commission made 28 recommendations including legislative reform, standardized policy, increased documentation,notice to interested parties and written consents, documentation of infants health information, documentation of sibling information, theestablishment of Custom Adoption Committees, and an appeal process (Second Report at pages 31 -36). [47] In 2011 the Auditor General of Canada reported to the Legislative Assembly of Nunavut on Children, Youth and FamilyPrograms and Services in Nunavut (Nunavut, Legislative Assembly, Office of the Attorney General of Canada, “Report of the AuditorGeneral of Canada to the Legislative Assembly of Nunavut 2011 – Children, Youth and Family Programs and Services in Nunavut”(Ottawa: Office of the Auditor General, 2011) Retrieved online from: http://www.oag-bvg.gc.ca/internet/docs/nun_201103_e_35006.pdf) [2011 AG Report].

One of the areas the Auditor General reported on was customadoption. The Auditor General recommended a review of ACARA with a view to ensuring “that the responsibilities are made clear withrespect to the safety and best interests of the child, and ensure that the Act continues to meet the need to reflect Aboriginal customarylaw.” (2011 AG Report at page 32) VII. CASE LAW [48] The earliest case involving a custom adoption was Re Katie’s Adoption Petition E7-1807 (1961), (NWTTC), 32 D.L.E. (2d) 686, 38 W.W.R. 100 (N.W.T. Terr.

Ct) [Katie]. [49] In that matter the Court recognized a custom adoption and held that the adoption had the same effect as an adoptionproceeded with under the applicable legislation.

The Court essentially, imbibed a custom adoption with the same characteristics and legalconsequences as a Euro-Canadian adoption. [50] This was followed in 1969 by Re Beaulieu’s Adoption Petition, (1969), (NWT TC), 3 D.L.R. (3d) 479, 67W.W.R. 669 which affirmed the decision in Katie in relation to Dene of the western Arctic. [51] The Northwest Territories Court of Appeal considered custom adoption in the case of Re: Tucktoo et al and Kitchooalik etal (sub nom. Re Deborah (1972) (NWT CA), 28 D.L.R. (3d) 483, [1972] 5 W.W.R. 2014 (NWTCA) [Deborah]. Thisinvolved a child who had been adopted out of necessity.

The biological parents had four children, Deborah being the youngest. Theylived a traditional life on the land. The mother was in the south for an extended period for medical reasons. The father tried to maintainhis trap line and care for his children but ultimately was unable to do so. Over the protestations of the biological mother, the youngestchild was adopted by relatives who were unable to have children of their own. There was no question that this decision was taken toensure the survival of the family members. The biological mother recovered her health and returned to her family.

Some time later,when the biological parents and the adoptive parents fell into a dispute, the biological parents sought the return of the youngest child. [52] The Court of Appeal upheld the decision of the lower Court in declaring that an adoption had taken place in accordancewith custom. [53] In the case of Re: Wah-Shee (NWT SC), [1975] 57 DLR (3d) 743; 21 RFL 156; [1975] NWTJ No 10(QL) [Wah-Shee], the Court was dealing with an aboriginal custom adoption to cross-cultural adoptive parents.

The Court heardevidence regarding the acceptance by the aboriginal community of the Caucasian adoptive mother, noting that she had become a bandmember and was receiving treaty money. The Court issued a declaration recognizing the custom adoption. [54] The decision in Re Tagornak Adoption Petition (1983), 50 A.R. 237, [1984 1 C.N.L.R. 185 (NWT SC) [Tagornak],summarized the law on custom adoptions up to that point, iterating that the Court’s role was declaratory. Tagornak was dealing with thecustom adoption of an Inuk child to an Inuk mother and a Caucasian father.

The Court considered the acceptance of the Caucasianfather by the Inuit community in declaring that a custom adoption had taken place. The Court relied upon some of the following criteriain determining that a custom adoption had taken place: a. that there is consent of natural and adopting parents;

b. that the child has been voluntarily placed with the adopting parents; c. that the adopting parents are indeed native or entitled to rely on native custom; and d. that the rationale for native custom adoptions is present in this case as it was in Deborah. [55] The reference to the rationale for custom adoption as a necessary component of a custom adoption is interesting in that theCourt in Deborah spoke about the exigencies of the environment and adoption being a necessary means of survival. [56] It is noteworthy that in some of these earlier cases the implication was that acceptance by the aboriginal community isimportant when considering whether has been a custom adoption to a cross cultural couple.

In both Wah-Shee and Tagornak it wasconsidered important that the non-aboriginal adoptive parent had been accepted by the aboriginal community and in each case there wasevidence on this point. [57] However, as indicated in the evidence before the Court in the cases of K(SK) v. S(J), (NU C.J.), [2002]Nu.J. No.3 [K(SK) v.

S(J)], the more recent approach is that aboriginal persons do not give up their aboriginal rights by marryingoutside of their aboriginal group and accordingly, custom adoptions to cross-cultural adoptive couples are recognized. (Transcript of theEvidence of Marie Irniq, page 87, lines 11 -18). [58] The early cases involving custom adoption undertook a determination of whether a custom adoption had occurred and,upon finding that one had, ascribed to it the rights, responsibilities and characteristics of a statutory adoption. It is important to readthese cases in the context of the day.

People of the north were entitled to government benefits such as family allowance, etc., butregistration and compliance with government regulations was required in order to access them. The distances between those entitled tothe benefits and those who administered the benefits were great and communication was difficult. It was often difficult to accessgovernment services. The Court spoke of the difficulties of proceeding with adoptions under legislative provisions because of the lack ofaccess to government services.

The Court wanted to ensure that aboriginal customs and traditions regarding relationships, such asmarriages and adoptions, were respected and given full effect so as to not prejudice aboriginal people who were following their customsand were either unable or unwilling to comply with legislated statutory requirements.

At the time little consideration was given towhether the rights and responsibilities flowing from an adoption would differ between custom adoptions and Euro-Canadian adoptions. [59] Over time the case law regarding custom adoptions developed so that while Courts provided declaratory relief inrecognizing a custom adoption, the nature and legal consequences of an aboriginal custom adoption were not to be determined byreference to the legislation pertaining to adoptions but rather, to aboriginal custom. [60] In the case of K(SK) v.

S(J), the maternal grandmother of the child was seeking child support from the biological father. The biological father was not aboriginal, had not been in a relationship of any length with the biological mother, and was not aware of thechild until sometime after the child’s birth. The biological father had no relationship with the child.

Although in the early stages of thelitigation the maternal grandmother had stated that she had custom adopted the child, and the matter proceeded on that basis, it becameevident during the hearing that the maternal grandmother had taken the child into her care as the child was not being cared for by thebiological mother and was essentially abandoned. [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 heardevidence that traditionally, adoptions required the consent and agreement of both the biological parents and the adoptive parents, thatadoptions were within the extended family, that contact between the biological parents and the child would continue, and that ifsomething happened to the adoptive parents the child would often return to the biological parents. The Elders described a change incustom adoptions.

They noted that there were many more custom adoptions taking place now than in the past, that while in the pastadoptions were usually for the benefit of the adoptive parents, they now more often for the benefit of the biological parents who wereunable or unwilling to care for the child. They also noted that grandparents are taking on the responsibilities of their grandchildren notalways 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 orpure custom adoption in which there is agreement and intention by all parties for an adoption, and pragmatic or practical customadoption, where someone takes on responsibility for the care of a child out of necessity because the biological parents are unable orunwilling to care for the child (K(SK) v. S(

J) at para 52).

[64] Despite this finding that there are two classifications of custom adoption, the Court was able to identify somecommonalities of custom adoption K(SK) v. S(

J) at para 51: a. custom adoption usually takes place between members of an extended family; b. a custom adoption is only available to those who are members of the group who have practiced custom over many years; c. custom adoption encourages a continuing relationship between the biological parents and the child; and d. there remains the possibility of the child returning to the biological parent. [65] This approach of determining the rights and responsibilities of custom adoption according to tradition was followed in thematter of Bruha v. Bruha ( 2009 NWTSC 44 [Bruha 1]; 2011 NWTSC 44 [Bruha 2]).

A Custom AdoptionCertificate was issued to the maternal grandparents of the infant. The birth mother and father did not receive notice of the Certificateuntil 9 months after it was issued. They took the position that they had never consented to an adoption and the biological mother broughtapplication for an order cancelling the Certificate and directing Vital Statistics to restore the original birth certificate. The maternalgrandfather was opposed to the application. [66] The biological mother did not pursue the matter and the case was back before the Court a few years later.

By this time thechild was now living with the maternal grandfather. The biological father had been paying child support to the biological mother whenthe child was in her care. When the child came into the care of the maternal grandfather the biological father paid the child support tothe maternal grandfather. The Court vacated the order for child support, stating that there was no basis upon which the Court couldconclude that the biological father had a legal obligation to pay child support in the context of a custom adoption.

The Court stated thatthe legal consequences of a custom adoption would be governed by aboriginal customary law but that there was no evidence before it todetermine what that custom was. VIII. DECISON IN THIS CASE A. Standard of Review [67] The application before me is an application for judicial review of the decision of the Custom Adoption Commissioner toissue a Certificate. This is the correct procedure (see Bruha 1, para 19). The remedy sought is the quashing of the decision and vacatingthe Custom Adoption Certificate. [68] In Dunsmuir v.

New Brunswick, [2008] 1 SCR 190, 2008 SCC 9 the Supreme Court of Canada set out twostandards of review on applications for judicial review; reasonableness and correctness.

In determining which is the appropriate standardof review the Court must consider whether the legislation includes a privative clause, the expertise of the tribunal or decision maker, andthe nature of the question. [69] In the matter before me all parties, including the Custom Adoption Commissioner, are in agreement that the Certificateshould be vacated on the basis that the fundamental concept of procedural fairness of notice to interested parties was breached. [70] A particular matter may give rise to a number of issues, each of which may attract a different standard of review.

The issuebefore me is one of procedural fairness, in that the biological parent did not receive notice of the application for a custom adoptioncertificate. [71] Regarding the standard of review on procedural matters, the Federal Court of Appeal in Bergeron v. Canada (AttorneyGeneral), 2015 FCA 160 CanLII (application for leave to appeal dismissed without reasons: SCC) [Bergeron] stated: The law concerning the standard of review for procedural fairness is currently unsettled. The unsettled nature of that law is shown by theSupreme Court’s recent decision in Mission Institution v.

Khela, 2014 SCC 24 , [2014] 1 S.C.R. 502, a procedural fairness case.In that decision, the Supreme Court declared, without elaboration, that the standard of review is correctness but just ten paragraphs laterit found that some deference should be owed to the administrative decision-maker on some elements of the procedural decision: at

paragraphs 79 and 89. Some cases of this Court have fastened onto the Supreme Court’s statement of correctness in Khela without noting the later words ofdeference: see, e.g., Air Canada v. Greenglass, 2014 FCA 288 , 468 N.R. 184 at paragraph 26. Those cases have not referred to other cases of this Court that suggest that the standard is not purely correctness and thatsome deference can come to bear. So what we have right now is a jurisprudential muddle. And now is not the time to try to resolve it. For one thing, we have not receivedsubmissions on the issue in this case.

For another, with so many conflicting decisions, perhaps only a reasoned decision of the SupremeCourt can provide clarity. In any event, as will be seen, it is not necessary to resolve this issue here.

On this record, even on a standard of correctness, there is noground to interfere with the Commissioner’s decision on the basis of procedural fairness. (Bergeron at paras 67-72) [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 bevacated. [73] The Certificate recognizing a Custom Adoption in relation to the child in question is vacated.

The Director of VitalStatistics and all other agencies that maintain documentation in relation to this child and her birth are directed to reinstate the originalbirth information. B. Going Forward [74] The parties in the matter before the Court agreed that the Custom Adoption Certificate ought to be vacated. This case didnot challenge validity of the ACARA nor did the parties call for consideration of the constitutional implications of the existing legislativeregime.

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 issues have been raised over many years by Maligarnit Qimirrujiit, the Auditor General and this Court. [76] Certainly custom adoptions, like many customs and traditions, will evolve over time. The custom will vary from region toregion. This case is but one example of some of the uncertainties that have evolved regarding custom adoption as society has changed.

As custom adoption has changed over time, so has the concept of Euro-Canadian adoptions, with an increasing trend towards openness. It is not possible to consider one form of adoption without also considering the other. In the context of Nunavut and the aboriginalcontext, it is not possible to consider adoption without regard to the history of both residential schools and the “60’s scoop”. [77] Over 10 years ago, Maligarnit Qimirrujiit identified many issues for consideration and urged further discussion with a viewto reaching a resolution and providing certainty. To date, those issues remain.

Some of the pressing issues are: a. Who makes the decision that a child will be adopted? The cases are clear that the consent of the biological parents is required. Thereis also an indication that there is a role for the grandparents, particularly if the biological parents are young. b. Can biological parents of a cross-cultural child give the child for adoption as a custom adoption? c.

What are the criteria for the custom adoption of a child by cross-cultural adoptive parents; acceptance of the non-aboriginal adoptiveparent by the aboriginal group or that one adoptive parent be part of the aboriginal group entitled to rely upon the custom? d. Should there be age limits on who can adopt (neither too old or too young)?

e. What responsibilities, if any, remain with the biological parents on a custom adoption? f. What rights, if any, remain with the biological parents on a custom adoption? g. What rights does the child have towards the biological parents (eg. inheritance, support, etc.) h. What responsibilities does the child have towards the biological parents? i. Are adoptive parents residing outside of Nunavut entitled to adopt a child in accordance with custom? j. What, if any, steps should be in place in a custom adoption to ensure the suitability of the adoptive parents? k.

What distinction, if any, should there be between a traditional or pure custom adoption or a pragmatic or practical custom adoption (as defined in K(SK) v. S(J) .) [ 78 ] Maligarnit Qimirrujiit called for “…uniform, even and consistent Government policy regarding custom adoption…” and further education and training for those working in the area. The Court reiterates this call to action to the Government of Nunavut, NTI, the three Designated Inuit Organizations, and similar agencies, to address these issues which are of upmost importance to our children.

Dated at the City of Iqaluit this 16 th day of March, 2017. ___________________ Justice S. Cooper Nunavut Court of Justice