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)

 1

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
 2

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
born 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.
 3

[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 mothers 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
 4

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
 5

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.
 6

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.
 7

Year No. of Live No. of ACARA No. of Adoption % of Total Adoptions

Births Adoptions Act 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.
 8

[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,
 9

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
 10

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)
 11

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.
 12

[27] The NSDC was established in 1996 and was dissolved in

2002. It was replaced by NTIs 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] NTIs 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.
 13

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

 14

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 Commissioners
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
 15

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
 16

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:
 17

<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-cultural marriages, 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.
 18

[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, the
establishment 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 Family
Programs and Services in Nunavut (Nunavut, Legislative Assembly,
Office of the Attorney General of Canada, Report of the Auditor
General 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 custom adoption. The Auditor General recommended a review
of ACARA with a view to ensuring 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. (2011 AG Report at page 32)

VII. CASE LAW

[48] The earliest case involving a custom adoption was Re Katies

Adoption Petition E7-1807 (1961), 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

 19

held that the adoption had the same effect as an adoption

proceeded with under the applicable legislation. The Court
essentially, imbibed a custom adoption with the same characteristics
and legal consequences as a Euro-Canadian adoption.

[50] This was followed in 1969 by Re Beaulieus Adoption Petition,

(1969), 3 D.L.R. (3d) 479, 67 W.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 et al (sub
nom. Re Deborah (1972) 28 D.L.R. (3d) 483, [1972] 5 W.W.R. 2014
(NWTCA) [Deborah]. This involved a child who had been adopted
out of necessity. The biological parents had four children, Deborah
being the youngest. They lived a traditional life on the land. The
mother was in the south for an extended period for medical reasons.
The father tried to maintain his trap line and care for his children but
ultimately was unable to do so. Over the protestations of the
biological mother, the youngest child was adopted by relatives who
were unable to have children of their own. There was no question
that this decision was taken to ensure 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 accordance with
custom.
 20

[53] In the case of Re: Wah-Shee [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 heard evidence regarding the acceptance by the
aboriginal community of the Caucasian adoptive mother, noting that
she had become a band member 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 Courts
role was declaratory. Tagornak was dealing with the custom
adoption of an Inuk child to an Inuk mother and a Caucasian father.
The Court considered the acceptance of the Caucasian father by the
Inuit community in declaring that a custom adoption had taken place.
The Court relied upon some of the following criteria in 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 the
Court in Deborah spoke about the exigencies of the environment
 21

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 is
important when considering whether has been a custom adoption to
a cross cultural couple. In both Wah-Shee and Tagornak it was
considered important that the non-aboriginal adoptive parent had
been accepted by the aboriginal community and in each case there
was evidence on this point.

[57] However, as indicated in the evidence before the Court in the

cases of K(SK) v. S(J), 2002 CanLII 53332 (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 marrying outside of
their aboriginal group and accordingly, custom adoptions to cross-
cultural adoptive couples are recognized. (Transcript of the
Evidence 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 read these
cases in the context of the day. People of the north were entitled to
government benefits such as family allowance, etc., but registration
and compliance with government regulations was required in order
to access them. The distances between those entitled to the
benefits and those who administered the benefits were great and
communication was difficult. It was often difficult to access
government services. The Court spoke of the difficulties of
 22

proceeding with adoptions under legislative provisions because of

the lack of access to government services. The Court wanted to
ensure that aboriginal customs and traditions regarding
relationships, such as marriages and adoptions, were respected and
given full effect so as to not prejudice aboriginal people who were
following their customs and were either unable or unwilling to comply
with legislated statutory requirements. At the time little consideration
was given to whether 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 in recognizing a
custom adoption, the nature and legal consequences of an
aboriginal custom adoption were not to be determined by reference
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 the child
until sometime after the childs birth. The biological father had no
relationship with the child. Although in the early stages of the
litigation the maternal grandmother had stated that she had custom
adopted the child, and the matter proceeded on that basis, it
became evident during the hearing that the maternal grandmother
had taken the child into her care as the child was not being cared for
by the biological mother and was essentially abandoned.
 23

[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 heard evidence
that traditionally, adoptions required the consent and agreement of
both the biological parents and the adoptive parents, that adoptions
were within the extended family, that contact between the biological
parents and the child would continue, and that if something
happened to the adoptive parents the child would often return to the
biological parents. The Elders described a change in custom
adoptions. They noted that there were many more custom
adoptions taking place now than in the past, that while in the past
adoptions were usually for the benefit of the adoptive parents, they
now more often for the benefit of the biological parents who were
unable or unwilling to care for the child. They also noted that
grandparents are taking on the responsibilities of their grandchildren
not always 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 or pure
custom adoption in which there is agreement and intention by all
parties for an adoption, and pragmatic or practical custom adoption,
where someone takes on responsibility for the care of a child out of
necessity because the biological parents are unable or unwilling to
care for the child (K(SK) v. S(J) at para 52).

[64] Despite this finding that there are two classifications of custom
 24

adoption, the Court was able to identify some commonalities 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 the matter of
Bruha v. Bruha ( 2009 NWTSC 44 (CanLII) [Bruha 1]; 2011 NWTSC
44 (CanLII) [Bruha 2]). A Custom Adoption Certificate was issued to
the maternal grandparents of the infant. The birth mother and father
did not receive notice of the Certificate until 9 months after it was
issued. They took the position that they had never consented to an
adoption and the biological mother brought application for an order
cancelling the Certificate and directing Vital Statistics to restore the
original birth certificate. The maternal grandfather 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 the child
was now living with the maternal grandfather. The biological father
had been paying child support to the biological mother when the
child was in her care. When the child came into the care of the
maternal grandfather the biological father paid the child support to
 25

the maternal grandfather. The Court vacated the order for child
support, stating that there was no basis upon which the Court could
conclude that the biological father had a legal obligation to pay child
support in the context of a custom adoption. The Court stated that
the legal consequences of a custom adoption would be governed by
aboriginal customary law but that there was no evidence before it to
determine 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 to issue a
Certificate. This is the correct procedure (see Bruha 1, para 19).
The remedy sought is the quashing of the decision and vacating the
Custom Adoption Certificate.

[68] In Dunsmuir v. New Brunswick, [2008] 1 SCR 190, 2008 SCC

9 (CanLII) the Supreme Court of Canada set out two standards of
review on applications for judicial review; reasonableness and
correctness. In determining which is the appropriate standard of
review the Court must consider whether the legislation includes a
privative clause, the expertise of the tribunal or decision maker, and
the nature of the question.

[69] In the matter before me all parties, including the Custom

Adoption Commissioner, are in agreement that the Certificate should
be vacated on the basis that the fundamental concept of procedural
 26

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 issue before
me is one of procedural fairness, in that the biological parent did not
receive notice of the application for a custom adoption certificate.

[71] Regarding the standard of review on procedural matters, the

Federal Court of Appeal in Bergeron v. Canada (Attorney General),
2015 FCA 160 CanLII (application for leave to appeal dismissed
without reasons: 2016 CanLII 20436 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 the Supreme Courts recent decision in Mission
Institution v. Khela, 2014 SCC 24 (CanLII), [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 later it 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

Courts statement of correctness in Khela without noting the
later words of deference: see, e.g., Air Canada v. Greenglass,
2014 FCA 288 (CanLII), 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 that some 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 received submissions on the issue in this case. For
another, with so many conflicting decisions, perhaps only a
 27

reasoned decision of the Supreme Court 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 no ground to interfere with the Commissioners
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 be
vacated.

[73] The Certificate recognizing a Custom Adoption in relation to

the child in question is vacated. The Director of Vital Statistics and
all other agencies that maintain documentation in relation to this
child and her birth are directed to reinstate the original birth
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 did
not challenge validity of the ACARA nor did the parties call for
consideration of the constitutional implications of the existing
legislative regime. 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
 28

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 to region.
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
aboriginal context, it is not possible to consider adoption without
regard to the history of both residential schools and the 60s scoop.

[77] Over 10 years ago, Maligarnit Qimirrujiit identified many

issues for consideration and urged further discussion with a view to
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. There is 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-
 29

aboriginal adoptive parent 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).)
 30

[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 16th day of March, 2017.

___________________
Justice S. Cooper
Nunavut Court of Justice