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Child’s Aboriginal Heritage Not a “Super-Weight” Factor in Adoption, Court Rules

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Child’s Aboriginal Heritage Not a “Super-Weight” Factor in Adoption, Court Rules

Recently I wrote about a Charter-based challenge to certain provisions of the Ontario Child and Family Services Act, where a Métis father claimed that provisions of that Act offended his child’s right to equality under the law.  He claimed that because the term “Native child” did not include those of Métis heritage, the legislation’s effect was to unjustly exclude his son from receiving certain services to which other Aboriginal children were entitled.

Aboriginal heritage was likewise one of the key elements in a recent B.C. Court of Appeal decision.

The birth mother of a 10-year old Aboriginal child opposed the application by another family to adopt him.  The boy’s grandmother had become his legal guardian immediately after birth; she had had him placed with the new family full-time at 20 months, where he has lived continuously ever since.  After obtaining legal custody and guardianship a few years ago, the family applied successfully to the court to formally adopt him.

The birth mother appealed that adoption order.  She claimed that the lower court judge who granted it failed to fully consider the importance of the child’s Aboriginal heritage and cultural identity as a factor contributing to his best interests, as required under section 3(2) of the provincial Adoption Act.

The Appeal Court disagreed; that factor was just one of many listed in the legislation that a court needed to consider.   The court observed:

With respect, I am unable to agree with the birth mother’s interpretation of s. 3(2) of the Act. First, in determining whether an adoption order should be made, a child’s Aboriginal heritage and cultural identity does not attract a “super-weight” over the other factors. Neither do the words in s. 3(2), nor the context of the Act, allow for an expanded interpretation beyond the plain meaning of the text of the provision. …  [E]ven if the birth mother’s interpretation of s. 3(2) were to be accepted, the evidence establishes that the adoptive parents have done everything they could reasonably have done to ensure that the child learns about, participates in, and appreciates the significance of his Aboriginal heritage and culture. The evidence is clear that the child knows about his particular Band and First Nation, and speaks with pride about being Aboriginal.

The court also pointed out that in this case, the child had a strong emotional bond with the adoptive family, which included his two siblings, identified the parents as his “mother” and “father”, and would suffer significant emotional harm if he was removed from their care at this point.  The lower court judge had properly weighed all the factors and had not applied the legislative mandate improperly.

For the full text of the decision, see:

M.M. v. T.B.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at

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