Racine v. Woods, [1983] 2 SCR 173

SUPREME COURT OF CANADA

Racine v. Woods, [1983] 2 S.C.R. 173

Date: 1983-10-13

Allan Norman Racine and Sandra Christine Racine Appellants;

and

Linda Jean Woods Respondent.

File No.: 17605.

1983: June 23 and 24; 1983: October 13.

Present: Ritchie, Dickson, Estey, McIntyre and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Adoption — De facto adoption — Abandonment — Considerations underlying adoption — Best interests of child — Bonding — Interracial considerations — Whether or not Indian child's best interests lay with Metis-white psychological parents or with natural Indian mother — Whether or not finding of abandonment necessary to de facto adoption — The Child Welfare Act, C.C.S.M., c. C80, ss. 102(1), 103(2) [1979 (Man.), c. 22, s. 72 and 1974 (Man.), c. 30, s. 103(2), respectively J.

Appellants took respondent's infant daughter into their home, first as a ward of the Children's Aid Society, and then, after expiry of that wardship, with respondent's consent. A Notice of Receiving a Child for Private Adoption was filed in October, 1978. Appellants shortly afterwards refused to give up the child in circumstances in which they considered it irresponsible to do so and heard nothing more of the respondent until she launched an application for habeas corpus in January, 1982. Appellants applied for an order of de facto adoption in February, 1982. The application for custody was dismissed and the adoption order granted at trial. The Court of Appeal, however, overturned the adoption order, made the child a ward of that Court, granted custody to the appellants, and left it open to respondent to apply subsequently for access or custody. Appellants appealed and respondent cross-appealed. The crucial issue here was whether or not the child's best interests lay with the appellants her psychological parents, who were Metis and white or with her natural Indian mother.

Held: The appeal should be allowed and the cross-appeal dismissed.

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The law no longer treats children as the property of those who gave them birth but focuses on what is in their best interests. In determining the best interests of the child, the significance of cultural background and heritage as opposed to bonding abates over time: the' closer the bond that develops with the prospective adoptive parents the less important the racial element becomes.

A finding of abandonment, even though it could be supported here, was not necessary to the trial judge's decision to allow adoption because the statute clearly dispensed with parental consent in a case of de facto adoption. "Custody" as used in s. 103 of the Act contemplated de facto custody provided it was not illegally obtained. The doctrine of estoppel would not properly be applied here to preclude a finding of abandonment. Appellants' conduct towards the child was responsible and could not be characterized as an illegal assertion of title.

Re Baby Duffell: Martin v. Duffell, [1950] S.C.R. 737; Hepton v. Moat, [1957] S.C.R. 606; Re Agar: McNeilly v. Agar, [1958] S.C.R. 52; Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802; SS. Hontestroom (Owners) v. S.S. Sagaporack (Owners), [1927] A.C. 37; referred to.

APPEAL and CROSS-APPEAL from a judgment of the Manitoba Court of Appeal (1982), 19 Man. R. (2d) 186, allowing in part an appeal from an adoption order granted by Krindle J. Appeal allowed and cross-appeal dismissed.

Leon R. Fishman, for the appellants.

Victor S. Savino, for the respondent.

The judgment of the Court was delivered by

WILSON J.—This appeal emphasizes once more, this time in an interracial context, that the law no longer treats children as the property of those who gave them birth but focuses on what is in their hest interests.

Leticia Grace Woods ("Leticia") was born at Portage la Prairie, Manitoba, on September 4, 1976 to Linda Woods, an Indian, who was at the time the wife of Lloyd Woods. Lloyd Woods was not the father of the child and divorce proceedings

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were underway when Leticia was born. There are two children of the Woods marriage, Jason aged nine and Lydia aged eight. Mrs. Woods on her own admission had a serious alcohol problem and was unable to care for Leticia. First her brother and then her sister took the infant. The older children, Jason and Lydia, stayed with their father.

On October 20, 1976, when she was six weeks old, Leticia was apprehended by the Children's Aid Society of Central Manitoba pursuant to the protection sections of The Child Welfare Act, C.C.S.M., c. C80 ("the Act") and placed in a foster home. In February 1977 Judge Kimmelman, with her mother's consent, made her a ward of the Society for a one-year period which was subsequently extended for a further six months. On February 11, 1977 Leticia was placed in the foster home of Sandra Ransom (later Racine) and her husband Lorne Ransom. The Ransoms separated in the summer of 1977 and in September of that year Sandra started to cohabit with Allan Racine whom she subsequently married. Leticia remained in their home with the sanction of the Children's Aid Society until the wardship order expired in March 1978. Arrangements were then made by the Society to return her to her mother who was living in Brandon with her other two children. The Racines cooperated fully in this transfer which took place on May 4, 1978.

Mrs. Woods had made no effort to contact Leticia during the period of the wardship but had suggested to the Society early in 1978 that her sister might adopt her. The sister apparently had reservations about this and nothing came of it. The Racines by this time had, of course, developed an attachment to the child and were. concerned as to whether she was being properly cared for. They therefore took up Mrs. Woods' invitation to pay her a visit. In fact they paid two visits to see Leticia and on the second visit in May 1978, with Mrs. Woods' consent, took Leticia home with them. The evidence as to Mrs. Woods' intention in relinquishing custody of Leticia to the Racines is conflicting. She says they were to have Leticia

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"just for a while" until she came for her in a couple of weeks' time. The Racines believed that she had surrendered the child to them on a permanent basis. She had confided to them that she was having difficulties with Lloyd Woods with whom she was periodically cohabiting and she appeared to be aware herself that she was in a state of emotional instability. Consistent with the Racines' understanding that they were now to have Leticia on a permanent basis they got in touch with the Children's Aid Society about the possibility of adopting her. Mrs. Woods by this time had returned to the Reserve with Lloyd Woods. The Society advised the Racines that it no longer had responsibility for the child and that if they wished to adopt her they should retain legal counsel. They followed this advice and on October 5, 1978 filed a Notice of Receiving a Child for Private Adoption under s. 102(1) of the Act.

The Racines heard nothing from Mrs. Woods until October 1978 when she arrived at their home announcing that she had left Lloyd Woods because he was abusing her, that she was on her way to Regina and wanted her sister to have Leticia. The Racines refused to give her up. They heard no further word from Mrs. Woods until January 1982 when she launched an application for habeas corpus. On February 24, 1982 the Racines applied for an order of de facto adoption.

It is apparent from the evidence that Mrs. Woods from January 1978 on was attempting with varying degrees of success to rehabilitate herself. She wanted to rid herself of her alcohol problem, to free herself of her association with Lloyd Woods, and to engage in a program of self-improvement. However, none of this was easy and periods of achievement when she underwent treatment for alcoholism and attended classes to upgrade her education would be followed by periods of backsliding. It took her five years and the support of friends, relatives and her extended family on the Reserve to accomplish her objective. By the time she did, Leticia was five or six years old and an established part of the Racine family. They had brought her up as if she were their own. The evidence discloses that they are a very fine

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couple, active and respected in their community, and excellent parents. They have two other children, Melissa aged four and two year old Jamie.

Leticia is apparently a well-adjusted child of average intelligence, attractive and healthy, does well in school, attends Sunday School and was baptized in the church the Racine family attends. She knows that Sandra Racine is not her natural mother, that Mrs. Woods is her natural mother, and that she is a native Indian. She knows that Allan Racine is not her natural father and that he is a Metis. This has all been explained to her by the Racines who have encouraged her to be proud of her Indian culture and heritage. None of this seems to have presented any problem for her thus far. She is now seven years old and the expert witnesses agree that the Racines are her "psychological parents".

An unfortunate incident occurred on February 3, 1982. When the court proceedings brought by Mrs. Woods in January 1982 were adjourned for the preparation of home study reports, she decided to take things into her own hands and with the assistance of friends attempted to abduct Leticia first from her school and then from the Racine home. Fortunately, the child was not in the home at the time. The R.C.M.P. had to be called. The Racines obtained an ex parte order granting them interim custody and enjoining Mrs. Woods from further attempts at abduction. Mrs. Woods moved to vary the order and was granted supervised access. On her first exercise of access she arranged for a reporter and a photographer from the Winnipeg Free Press to be present. The story was given considerable prominence in the newspaper with a photograph of Mrs. Woods and Leticia. The child was upset by the notoriety.

The Racines' application for adoption and Mrs. Woods' application for custody were heard by Judge Krindle in a trial lasting eight days. The application for custody was dismissed and the adoption order granted. Mrs. Woods appealed to the Manitoba Court of Appeal which overturned the adoption order, made Leticia a ward of the Court of Appeal, granted custody to the Racines and left it open to Mrs. Woods to apply subsequently

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 for access or custody. The Court of Appeal subsequently on a motion for directions referred Mrs. Woods' application for access to Huband J.A. Huband J.A., on being advised that an application was being made for leave to appeal to the Supreme Court of Canada, held the application for access in abeyance. This Court gave the Racines leave to appeal on May 17, 1983 and ordered a stay of proceedings. Leticia continued to reside with the Racines and Mrs. Woods has had no access since Judge Krindle's order of adoption on May 12, 1982. Mrs. Woods cross-appealed in this Court on the ground that the Manitoba Court of Appeal erred in not restoring legal custody to her when they set aside the order of adoption in favour of the Racines.

The Racines' application for adoption was made under s. 103 of the Act, i.e. a de facto adoption based on the fact that Leticia had been cared for and maintained by them for a period of three consecutive years. Section 103(2) states that in the case of such an adoption the consent of the parents or guardian is not required. Judge Krindle found that the Racines had cared for and maintained Leticia for the required three-year period and indeed had rescued her as an infant from an intolerable situation, given her an excellent home, been devoted parents, were fully sensitive to the special problems of raising a native Indian child in a predominantly white environment and were coping with those problems in a mature and responsible fashion. She concluded that the Racines were well able to cope with any identity crisis Leticia might face as a teenager. Moreover, as a Metis Allan Racine was no stranger to the hurt racial prejudice could inflict on a sensitive soul and, in the view of the learned trial judge, was a model for Leticia of how to survive as a member of a much maligned minority. As to Mrs. Woods, Judge Krindle expressed respect and admiration for her courage and determination and the degree of success she had achieved in rehabilitating herself. At the same time, however, she expressed some concern as to whether she was going to be

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able to maintain her progress. She saw danger signals in "the venom of her anti-white feelings" and wondered what effect "her visible hatred for all things white" would have on her child. She also wondered whether Mrs. Woods' concern was for the child as a person or as a political issue. The media incident, in Judge Krindle's view, manifested an incredible indifference to the effect such an incident might have on her child. It made Leticia, a very private little girl, into a "cause célèbre" in her school and community. Judge Krindle concluded that it was in the child's best interests that she remain with the Racines.

In addition to finding that it was in Leticia's best interests to remain with the Racines, Judge Krindle also made a finding that Mrs. Woods had abandoned Leticia between October 1978 and January 1982. She made this finding because of her concern as to whether s. 103(2) had the effect of dispensing with parental rights in the case of a de facto adoption. If it did have that effect, then the sole issue was the best interests of the child. However, if it did not, then under the common law a natural mother could lose custody of her child to a stranger in blood only by abandoning it or so misconducting herself that in the opinion of the court it would be improper to leave the child with her: see Re Baby Duffell: Martin v. Duffell, [1950] S.C.R. 737; Hepton v. Maat, [1957] S.C.R. 606; Re Agar: McNeilly v. Agar, [1958] S.C.R. 52.

Having made her findings as to abandonment and the child's best interests, Judge Krindle made the adoption order in favour of the Racines and dismissed Mrs. Woods' application for custody.

As already mentioned, the Court of Appeal overturned the adoption order. Each of the panel of three judges gave separate reasons. Mr. Justice Hall would have affirmed the adoption order but, because his two colleagues were for overturning it, he yielded to the majority and then went on to align himself with the alternate course advanced

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by O'Sullivan J.A. rather than that advanced by Matas J.A.

O'Sullivan J.A. decided that the best course to follow was to make Leticia a ward of the Court with custody in the Racines, leaving it open to Mrs. Woods at some future time to apply for access. Matas J.A., on the other hand, did not think making the child a ward of the Court was a workable alternative. He favoured a new trial as to custody (as opposed to adoption) with interim custody in the Racines in the meantime and such access to Mrs. Woods as might be agreed upon or as might be ordered by the Court.

On what grounds then did the Court of Appeal upset the judgment of the learned trial judge? Hall J.A. identified the basis on which in his view it should have been affirmed. He pointed out that the trial judge had the tremendous advantage of seeing and hearing the parties and their witnesses and that she had accepted the evidence of some experts in preference to that of others. She had the benefit also of home study reports and reflected in her reasons the concern expressed in them about the consequences of moving the child from the only permanent home she had ever known and separating her from the de facto parents to whom she was now psychologically bonded. He referred to the strong statement made by the trial judge after a review of the whole of the evidence:

I have absolutely no doubt whatsoever that the circumstances of this case demand the granting of an Order of Adoption of Letitia [sic] to the Racines ... .

He found that the findings and conclusions reached by the trial judge were fully supported by the evidence. He pointed out that the trial judge was well aware of the importance of Leticia's cultural background and heritage and the potential difficulties involved in an interracial adoption. She gave particular attention to the evidence of the expert who suggested that Leticia could face a major identity crisis in her teenage years as a result of being reared in a predominantly white environment. She concluded that the Racines would be well able to deal with such a crisis if it arose.

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Matas and O'Sullivan D.A. had certain concerns in common about the judgment of the learned trial judge. On the issue of abandonment they expressed the view that, when Mrs. Woods attempted to get her child hack in 1978, the Racines refused to give her up. How can the Racines rely on abandonment by Mrs. Woods when they at that time had no legal right to keep the child? As Matas J.A. put it:

The actions of the Racines, well motivated though they were, put roadblocks in the path of what Mrs. Woods might have been able to accomplish if she had been dealing with expected reactions of foster parents. In effect, Mr. and Mrs. Racine considered themselves as the equivalent of a court or a child caring agency, in deciding what they thought was best for the child at that time.

In my view, Mr. and Mrs. Racine cannot now rely on a claim that Mrs. Woods abandoned her child when they deliberately refused to return the child to Mrs. Woods in 1978 and embarked on a three-year waiting period to simplify the legal procedures to be followed in adopting Leticia. And it is impossible for us to say now what may have been the result if an application for adoption had been made properly in 1978. At least the court would not have been faced with the argument of the particularly long lapse of time. It is not enough for the Racines to say they have lived at the same address continuously and that Mrs. Woods should have known where to reach them. The custody claimed by the Racines cannot, in my opinion, be a foundation for an application under s. 103 of the Act.

O'Sullivan J.A. said:

... it is difficult to know what more Linda Woods could do to recover her child who was being held without legal right except to seek help from child caring agencies, legal aid lawyers and the police. The fact they were unable to help her does not show that she had abandoned her parental rights but that she was unable to assert them effectively.

The trial judge, of course, relied upon the period of four years from 1978 to 1982 for her finding of abandonment and the evidence seems to support her finding that Mrs. Woods:

... may have continued to feel for Letitia [sic] from time to time, but the fact is that for four years there was no contact between herself and Letitia [sic], not even an attempt on her part to see how the child was, to let the

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child know that her mother cared, to see if the child needed help. The only thing that could even be considered, I suppose, a "half-baked" stab at breaking the abandonment was the one time that Miss Woods got into a car with George Beaulieu, looked for the Racine residence, and then because George Beaulieu ran out of money and was low on gas, turned back and went back to Long Plains. That was one day in a period that extended from October of 1978 to January of 1982. During this period of time, from the point of view of the child, she may as well not even have had a natural mother.

It is apparent that Matas and O'Sullivan JJ.A. put an entirely different interpretation on the evidence from that put upon it by the learned trial judge and I agree with the appellants that it is not the function of an appellate court to reinterpret the evidence. In Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802, this Court (per Ritchie J. at p. 807) put its stamp of approval on the following observation of Lord Sumner in S.S. Hontestroom (Owners) v. S.S. Sagaporack (Owners), [1927] A.C. 37, at p. 47.

... not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witness and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusion of fact should, as I understand the decisions, be let alone.

Accordingly, even if a finding of abandonment was a prerequisite for an adoption order under s. 103, I am of the view that the evidence was there to support Judge Krindle's finding.

Nor do I accept the submission of counsel that the trial judge was precluded from finding abandonment

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 by Mrs. Woods on the basis of some kind of estoppel operating against the Racines. The Racines' refusal to return the child to Mrs. Woods in October 1978 when she suddenly appeared at their home at a late hour in the evening and intimated that she had left Lloyd Woods, was moving to Regina and wanted to pass Leticia on to her sister was in my view a perfectly responsible act on the part of the Racines. I do not think they were, as Matas J.A. suggests, setting themselves up as a court to decide the ultimate fate of the child. They had had the care of Leticia since she was an infant except for a brief period in May 1978 following the expiry of the wardship order and had become very attached to her. I believe their conduct was prompted by concern for the child. No doubt they were of the view that if Mrs. Woods' intention in taking Leticia from them was to pass her on to her sister rather than to look after her herself, she might well be better off with them—at least until a proper authority had looked into the kind of home she would have with the sister. It must be recalled that the Racines thought that Mrs. Woods had given Leticia permanently into their care in May and were planning to adopt her. They had heard nothing from her from May until her sudden appearance in October and, indeed, heard nothing further from her until the writ of habeas corpus in January 1982. With all due respect to the majority of the Court of Appeal, I think it is quite inappropriate to characterize the conduct of the Racines as some kind of illegal assertion of title! We are dealing with a child who had been brought up in their home after being apprehended by the Children's Aid Society. It was for the Court to decide whether the Racines' conduct in refusing to give up Leticia in October 1978 was reasonable in the circumstances and whether it really prevented Mrs. Woods from pursuing her legal right to custody. The trial judge obviously concluded that it did not. She could have proceeded immediately with her habeas corpus application and not waited three years to do so. Matas J.A., in holding the Racines estopped from alleging abandonment by their refusal to give up the child in October 1978, states:

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In my view, Mr. and Mrs. Racine cannot now rely on a claim that Mrs. Woods abandoned her child when they deliberately refused to return the child to Mrs. Woods in 1978 and embarked on a three-year waiting period to simplify the legal procedures to be followed in adopting Leticia. And it is impossible for us to say now what may have been the result if an application for adoption had been made properly in 1978. At least the court would not have been faced with the argument of the particularly long lapse of time.

With respect, I see nothing "improper" about the Racines proceeding by way of de facto adoption. The statute contemplates it. Moreover, in my view the crucial question is not what a court would have done with an adoption application made in 1978 but what it would have done with a habeas corpus application. Mrs. Woods might have succeeded on such an application in 1978 had she proceeded with it. Her failure to do so permitted her child to develop a dependency on the Racines as her psychological parents. It seems to me that Mrs. Woods had a responsibility when her rights were challenged to pursue them in the court if necessary and not to wait until her child was bonded to the Racines with all the problems for the child that the disruption of that bond was likely to create.

I frankly cannot see this as a situation for the application of the doctrine of estoppel. I believe there was evidence before the learned trial judge on which she could make her finding of abandonment between October 1978 and January 1982 although I feel impelled to say that I myself would probably not have made that finding. I believe that the significance of a person's conduct must be assessed in the context of that person's circumstances. Acts performed by one may constitute abandonment when the same acts performed by another may not. I think I would have been disposed to take a more charitable view of Mrs. Woods' failure to contact her child given her circumstances than that taken by the learned trial judge.

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Be that as it may, I do not think a finding of abandonment was necessary to the trial judge's decision. I think the statute is clear and that s. 103(2) dispenses with parental consent in the case of a de facto adoption. This does not mean, of course, that the child's tie with its natural parent is irrelevant in the making of an order under the section. It is obviously very relevant in a determination as to what is in the child's best interests. But it is the parental tie as a meaningful and positive force in the life of the child and not in the life of the parent that the court has to be concerned about. As has been emphasized many times in custody cases, a child is not a chattel in which its parents have a proprietary interest; it is a human being to whom they owe serious obligations. In giving the court power to dispense with the consent of the parent on a de facto adoption the legislature has recognized an aspect of the human condition—that our own self interest sometimes clouds our perception of what is best for those for whom we are responsible. It takes a very high degree of selflessness and maturity—for most of us probably an unattainable degree—for a parent to acknowledge that it might be better for his or her child to be brought up by someone else. The legislature in its wisdom has protected the child against this human frailty in a case where others have stepped into the breach and provided a happy and secure home for the child for a minimum period of three consecutive years. In effect, these persons have assumed the obligations of the natural parents and taken their place. The natural parents' consent in these circumstances is no longer required.

Counsel for the respondent submits, however, that the word custody as used in s. 103 of the Act should be interpreted to mean legal custody and that Linda Woods never relinquished legal custody of the child and the Racines never obtained it. By legal custody I understood counsel to mean custody pursuant to a court order or some other lawful authority. Because they do not have this counsel submits that the Racines cannot meet the requirements of the section. I find no merit in this submission. Section 103 clearly provides for an application for adoption by a person having de

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facto custody of a child for the prescribed period of time. This is not to say that the means by which the de facto custody was obtained is irrelevant under the section. If it were obtained illegally, such as by kidnapping for example, this would certainly be a factor to be considered by the court in determining whether or not it was in the child's best interests to make the order. No such situation obtains here and I cannot read into the section something which is simply not there.

I turn now to the crucial issue on the appeal. Did the learned trial judge err in holding that Leticia's best interests lay with the Racines? The majority of the Court of Appeal thought she did. They appear to share a concern about the finality of an adoption order in terms of cutting Leticia off both from her natural mother and from her Indian heritage and culture. Matas J.A. said:

As part of his submission, counsel for Mrs. Woods argued that a transracial adoption results in the loss of contact by the child with his heritage and culture and that this would not be in the best interests of the child. I would reject this argument if counsel meant that no transracial adoption order should ever be granted by the courts in this province. The legislation is not restrictive. In an appropriate case, the court may grant a transracial order of adoption. However, I agree that a child's culture and heritage should be considered by the court as one of the factors to be weighed as part of the circumstances envisaged by s. 89 of the Act. Depending on the circumstances, it is a factor which could have greater or lesser influence in the court's final decision. In the case at bar, the evidence supports the view that the factor is an important one.

Hall J.A. did not underestimate the importance of the fact that the child was an Indian. However, he adopted the conclusion the trial judge drew from the expert evidence before her as to the Racines' sensitivity to the interracial aspect and their appreciation of the need to encourage and develop in Leticia a sense of her own worth and dignity and the worth and dignity of her people. The trial judge found that they had amply displayed

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 their ability to guide Leticia through any identity crisis she might face in her teenage years. Hall J.A. also accepted the trial judge's finding based on the psychiatric evidence that to risk the removal of Leticia from the Racines' home at this stage could cause her permanent psychological damage. This was the only home she had ever known and she was securely bonded to the Racines. Hall J.A. concluded that, important a factor as her Indian heritage and culture might be, the duration and strength of her attachment to the Racines was more important.

The majority of the Court of Appeal obviously saw in their alternate courses a means of keeping the door open for access to the natural mother. If the child were a ward of the Court the Court could grant her access while maintaining custody in the Racines if this seemed appropriate. Similarly, if a new trial were ordered as to custody, access rights could be claimed in those proceedings. The majority were loath to close the door on access by the finality of an adoption order. With respect, I think this overlooks something—something adverted to by Mr. Justice Hall when he said:

In my opinion, it is quite unlikely that a solution to the problem will be found in either of the ways proposed by my colleagues. Rather, my forecast is lengthy, bitter and costly litigation which in itself would not serve the best interests of Leticia. A difficult choice has to be made. Either the order of adoption should stand or she should be returned to Mrs. Woods. The record is as complete as it is ever likely to be.

I agree with Mr. Justice Hall that this child should not be allowed to become a battleground—in the courts or in the media—and I believe that there is a very real risk of this if the Court refuses to "bite the bullet". In my view, when the test to be met is the best interests of the child, the significance of cultural background and heritage as opposed to bonding abates over time. The closer the bond that develops with the prospective adoptive parents the less important the racial element

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becomes. As the witness, Dr. McCrae, expressed it:

I think this whole business of racial and Indian and whatever you want to call it all has to do with a perameter of time and if we had gone back to day one and Letitia [sic] Woods is now being relinquished by her mother in terms of priorities at that time, we would have said—supported a hundred times over "let's place the child with its cultural background." That would be a very—would have been very reasonable. But if that is not done and time goes by, that priority drops down. The priority is no longer there, the priority of ethnic and cultural background. That drops and now must go way down because now it's the mother-child relationship. It doesn't matter if Sandra Racine was Indian and the child was white and Linda Woods was white. This same argument would hold. It has nothing to do with race, absolutely nothing to do with culture, it has nothing to do with ethnic background. It's two women and a little girl, and one of them doesn't know her. It's as simple as that; all the rest of it is extra and of no consequence, except to the people involved, of course.

I think the learned trial judge recognized that reality, considered all the factors which were relevant to the determination of what was in the child's best interests including the fact that she was of Indian parentage, and weighed them in the balance. I cannot find that she erred in carrying out this rather difficult process.

Much was made in this case of the interracial aspect of the adoption. I believe that interracial adoption, like interracial marriage, is now an accepted phenomenon in our pluralist society. The implications of it may have been overly dramatized by the respondent in this case. The real issue is the cutting of the child's legal tie with her natural mother. This is always a serious step and clearly one which ought not to be taken lightly. However, adoption-given that the adoptive home is the right one and the trial judge has so found in this case-gives the child secure status as the child of two loving parents. While the Court can feel great compassion for the respondent, and respect for her determined efforts to overcome her adversities, it has an obligation to ensure that any order it makes will promote the best interests of her child. This and this alone is our task.

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I would allow the appeal and reinstate the Order of Adoption made by the trial judge. I would dismiss the cross-appeal. I would make no order as to costs.

Appeal allowed and cross-appeal dismissed.

Solicitor for the appellants: Leon R. Fishman, Winnipeg.

Solicitors for the respondent: Savino and Company, Winnipeg.