Nunavut judge says Inuit custom adoption law needs a makeover
Inuit organizations ignore invitation to intervene in custom adoption case
A Nunavut judge has called for greater clarity in the territory’s adoption laws, warning the issue is “of upmost importance to our children,” in a decision that reverses the custom adoption of a baby girl signed by a local custom adoption commissioner who didn’t properly consult the child’s mother.
“This case is but one example of some of the uncertainties that have evolved regarding custom adoption as society has changed,” Justice Sue Cooper said in a written decision released March 16.
The identities of the child, her family and community are withheld from Cooper’s decision.
According to facts laid out in the decision, a custom adoption commissioner issued a Custom Adoption Certificate in 2013 without contacting or interviewing the child’s biological mother—who was underage—or the maternal grandparents, who were looking after the mother and her baby when the certificate being issued.
In Nunavut, custom adoption commissioners are responsible for issuing certificates in accordance with the Aboriginal Custom Adoption Recognition Act, or ACARA, a law inherited from the Northwest Territories.
ACARA, along with the Adoption Act, is one of two ways of legally adopting a child in Nunavut.
However, under the ACARA, the process is less formal and doesn’t involve the courts or any government agency—just an application by the adoptive parents to obtain the adoption certificate.
In this case, the custom adoption commissioner could not contact the mother and her family because she did not “have sufficient minutes on her cell phone to call them,” Cooper’s decision said.
But she issued the certificate anyway, granting custody of the child to paternal grandparents in another community.
“Presumably the father was both aware of and consented to the custom adoption as he was living in the home with the paternal grandparents.”
The decision noted that there was some discussion over adopting the child between the mother and the paternal grandmother while the child was medevaced to a southern hospital, which led to the grandparent assuming there was consent.
In their submissions, both parties in the case recommended to the court that the adoption certificate be nullified, which Cooper upheld.
While Cooper said the case was fundamentally an issue of procedure, she took time to address the “variety of issues” surrounding custom adoption in Nunavut.
That includes issues of consent, entitlement, conflicting adoption certificates for the same child, or the use of social media to seek out potential adoptive parents.
“The face of custom adoption is changing,” Cooper said, noting that the act now oversees adoptions to mixed-race families and non-Inuit couples.
Adoptions under ACARA are by far the most popular form of adoption in Nunavut, Cooper said.
In 2015, 93 per cent of all adoptions in Nunavut were custom adoptions, according to from the 2015 Annual Report of the Nunavut Court of Justice.
“Children are increasingly being custom adopted to adoptive parents outside of Nunavut,” she said.
Cooper said the significance of the case prompted the court to reach out to the Government of Nunavut, Inuit organizations and other agencies for input.
However, Nunavut Tunngavik Inc., along with Nunavut’s three regional Inuit associations, did not respond to Cooper’s request.
“It is unfortunate that none of the Inuit organizations accepted the invitation to intervene,” Cooper said, adding that the invitations were “a recognition of the unique circumstances of Nunavut and the important role of Inuit in determining such issues.”
The GN participated during the early stages of the litigation, Cooper said, but did not continue once it became clear the case wouldn’t challenge the ACARA law directly.
Nunavut’s newly appointed Representative of Children and Youth also declined to comment on the case, citing that its provisions under law had yet to come into effect completely in when it was notified by the court in 2014.
“What this matter has done, is once again draw stark attention to continuing issues presented by the application of ACARA,” Cooper said.
That includes earlier reports on the exisitng legislation from the Auditor General of Canada and Maligarnit Qimirrujiit, the Nunavut Law Reform Commission, which reviewed ACARA in a report inssued back in 2000, with 28 recommendations.
Those recommendations called for legislative reform, standardized policy and increased documentation.
In 2011, the Auditor General of Canada touched on custom adoption in its report to Nunavut’s legislature on youth and family services in Nunavut.
That report recommended “that the responsibilities are made clear with respect to the safety and best interests of the child, and ensure that the act continues to meet the need to reflect aboriginal customary law,” Cooper said.
“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 outmost importance to our children,” Cooper said.