Globe and Mail

Native man loses child to white U.S. couple

Adoptive family will raise child despite Manitoba relative's objection, Supreme Court rules

Tuesday, May 4, 1999
KIRK MAKIN
Justice Reporter, The Globe and Mail

The Supreme Court of Canada yesterday shot down an 11th-hour attempt by an aboriginal Manitoba man to stop his grandchild being brought up by adoptive grandparents in the United States.

The decision ends a lengthy custody battle that for some symbolized a now-discredited policy of sending aboriginal children off to be adopted by white families.

Explaining why it reverted to the trial judge's decision to give custody of the four-year-old to his white grandparents, the Supreme Court said trial judges are in the best position to decide custody cases.

Unlike appeal court judges, it said in a unanimous judgment, judges presiding over custody proceedings have the great benefit of being able to see and assess witnesses from both sides.

"The importance of the findings of the trial judge in custody cases cannot be forgotten," it said. Although the court made its ruling in February, it only issued its reasons yesterday.

The case obliged the court to stickhandle around politically loaded issues, including the wealth of the U.S. couple -- a newspaper columnist and a software engineer -- and the blood grandfather's status as a welfare recipient.

The blood grandfather, identified as H. M., attempted to reopen the case after the February ruling, claiming the Sagkeeng First Nation band was denied an opportunity to make legal arguments.

Yesterday, the court rejected this argument.

It said H. M. could have easily informed the band before the appeal was heard that it ought to apply for standing to make arguments.

The mother of the child at the centre of the litigation, known as Melissa, was adopted by the U.S. couple in 1980. The couple, who lived in Montreal at the time, also adopted Melissa's sister.

Each judgment in the custody case has affirmed that the couple are fit and loving parents who took pains to put Melissa and her sister in touch with their cultural traditions.

Nonetheless, Melissa turned into a very troubled individual. She abused alcohol and drugs and engaged in violent and self-destructive behaviour. She spent a four-year period of her adolescence in treatment centres.

In 1995, she became pregnant with the the child at the centre of the case, identified as I. M. Shortly after giving birth to him, Melissa became either unable or unwilling to look after him. The child's father, who is black, disclaimed any interest in seeing or looking after the child.

As a result, the child spent the first eight months of his life being cared for by Melissa's adoptive parents in Connecticut.

Toward the end of this time, they aided Melissa in discovering the identity of her blood family in British Columbia. Melissa took her baby to visit them and left him there, prompting the custody battle between grandparents. (Melissa supported her blood grandfather in the case.)

At the core of the case was legislation emphasizing the importance of preserving cultural roots in litigation involving aboriginal children.

After considering the legislation, the original trial judge nonetheless granted custody to the white grandparents. His decision was overturned by the B.C. Court of Appeal. The Supreme Court reinstated the original decision.

The Supreme Court said yesterday that the trial judge gave ample consideration to the child's aboriginal heritage, noting at one point that "this is not a case of taking an aboriginal child and placing him in a non-aboriginal family in complete disregard for his culture and heritage."

The Supreme Court also observed that there have been structural changes in I.M.'s blood family that make it even less appropriate as a home for the child.

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