Nunavut court rules on custom adoption that goes bad

Granting interim custody could "usurp" role of child protection services, judge found


A Nunavut Judge says a woman cannot regain custody of the child she gave up in a custom adoption as a baby, but she will have access to the seven-year-old girl. (FILE PHOTO)

A Nunavut Judge says a woman cannot regain custody of the child she gave up in a custom adoption as a baby, but she will have access to the seven-year-old girl. (FILE PHOTO)

A mother who gave up her child through a custom adoption to a household marked by sexual abuse, domestic violence and neglect will not receive interim custody of her daughter, which she had sought in court.

The child, now seven, is now in the temporary custody of the office of the Director of Child and Family and Services, which has plans to return the girl to her adoptive mother under a supervision order.

Nunavut Justice Susan Cooper, in a judgment released Sept. 25, decided that if the girl, called A.M. in the judgment, hadn’t been the subject of child protection proceedings, “it is unlikely” that her biological mother and the plaintiff in the court case—a woman called M.E. in the judgment—”would have commenced a custody application.”

Cooper said to grant interim custom to M.E. would “usurp the role of the Director [of Child and Family Services] and the child protection services,” which, Cooper said, “undoubtedly” shares her concerns about the adoptive mother’s ability to parent.

So, Cooper denied the application from M.E. for interim custody of her child, but granted her access to A.M., while the child remains in the temporary custody of Child and Family Services.

Cooper said A.M. had “experienced considerable instability and disruption in her young life.”

M.E. had given up her daughter for adoption because she was homeless and unable to care for her daughter when she was born, according to the facts in the judgment.

A decision was made for A.M. to be custom-adopted to a relative, K.M., who had experienced “significant trauma” in her life. K.M. had a history of involvement with youth protection with her other children and alcohol abuse before A.M arrived on the scene, the judgment says.

That custom adoption was not registered.

“Had the adoption of A.M. proceeded pursuant to the Adoption Act… and approval of the Director [of Child and Family Services] as being a requirement, one wonders if the adoption would have occurred,” Cooper said.

In 2013, when A.M. would have been three years old, K.M.’s daughter was sexually assaulted by her partner; in 2014, K.M. was medevaced after having been assaulted by another partner.

The children, including little A.M., ended up in the care of the maternal grandmother. They returned home, but then went back to the grandmother after the children were alone in the house when K.M. was in another community.

In June 2015, K.M.’s new partner was charged, although not convicted, with sexually assaulting A.M, who would have then been five years old.

K.M. continued to have contact with her partner who was not supposed to have any contact with A.M. As a result, A.M. was taken twice in custody by youth protection, in 2015 and 2016.

The biological mother, now in a stable position with respect to her employment and housing, began to get concerned about the welfare of A.M., Cooper said.

But, because M.E. is a parent who gave up her child for adoption, her right to regain custody is not clear, Cooper determined. Moreover, M.E. has not “played a parental role in A.M.’s life,” and she and her daughter don’t live in the same community.

Cooper did grant M.E. access to A.M. while she’s in temporary custody—and, if she’s returned to her adoptive mother, K.M., then access will be “as agreed” between M.E. and K.M.

“They may return to the Court for direction,” if they can’t agree, Cooper said.

The 2016-17 annual report from the Director of Child and Social Services shows 406 children and youth in Nunavut are receiving services from the department—242 boys and 164 girls.

Of these, 363, like A.M., live in foster homes or in extended family placement.

M.E. versus K.M, 2017 Nunavut Court of Justice by NunatsiaqNews on Scribd

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