Judge questions Nunavut custom adoption procedures after quashing certificate

A Nunavut judge is pointing out problems with how the territory handles traditional Inuit adoptions after a mother lost custody of her daughter without her consent.

In a ruling last week that reversed a custom adoption for the three-year-old girl, Justice Susan Cooper said an institution with roots in the traditional past now must deal with adoptions arranged through social media, non-Inuit parents and Inuit children moving outside Nunavut.

"The face of custom adoption is changing," wrote Cooper.

Custom adoption refers to the practice of a child being placed privately with non-biological parents, usually an extended family member. Often, it involves the child of a young mother being raised by grandparents or an older aunt or uncle. Government agencies are not involved.

A version of the practice exists in all three territories, as well as northern British Columbia and Quebec, but it is most common in Nunavut.

Statistics in Cooper's judgment say between 2008 and 2015, almost 1,500 children were traditionally adopted — 95 per cent of all adoptions in the territory.

'Variety of issues' with custom adoption

The ruling involved a girl born prematurely on May 17, 2013. After the birth, the mother, father and baby lived with the paternal grandparents. However, shortly after, the baby had to be medevaced to the south.

During that medevac, Cooper said some talk about the grandmother adopting the baby took place and the paternal grandparents assumed a traditional adoption had occurred.

But when the mother and the baby returned to Nunavut, they moved in with her parents, not the father's.

Meanwhile, a custom adoption certificate had been issued giving custody to the paternal grandparents, who requested the baby be delivered to them. The certificate was news to the mother, who took the matter to court.

All parties agreed the certificate should be quashed.

But Cooper said the case highlights ongoing problems.

"Over recent years the court has seen a variety of issues arise in relation to custom adoptions," she wrote.

Rules not clear

She said rules around consent and eligibility aren't always clear. Previous cases have drawn testimony from elders outlining how the practice has changed.

"(Elders) 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 were now more often for the benefit of the biological parents who were unable or unwilling to care for the child," Cooper wrote.

"They also noted that grandparents are taking on the responsibilities of their grandchildren not always through mutual agreement, but often through necessity."

Cooper noted other problems "such as the use of social media to seek out prospective parents" have been reported on.

The territory's law reform commission has expressed concern about custom adoptions.

In 2003, it made 28 recommendations to the territorial government. Its concerns included cases where birth mothers had a change of heart, fathers were inadequately consulted, babies adopted by the elderly and a practice developed to help orphaned children or infertile couples being used to deal with unwanted pregnancies.

In 2011, the auditor general pointed out that none of those concerns had been dealt with. A spokesman from the Government of Nunavut was not available for comment.