05/19/2015 06:54 EDT | Updated 05/19/2016 05:59 EDT

Saudi-born dad named 'guardian' of adopted-out daughter: B.C. Court of Appeal

VANCOUVER - British Columbia's highest court has granted guardianship rights to a Saudi man whose infant daughter was put up for adoption by her drug-addicted mother.

The fight over the five-year-old girl caps a lengthy legal battle that one judge said may be the first time guardianship provisions under B.C.'s new Family Law Act have come before B.C. Appeal Court.

In the 2-1 ruling released online Tuesday, Justice Mary Newbury said the case may be also part of a societal shift that is seeing more custodial claims by fathers against unmarried mothers.

The father, identified as M in the ruling, took the province's director of adoption to court in February 2011 to gain sole custody of his daughter, identified as O.

The father lost in a lower court, with the judge ruling he was not a guardian under the law because he did not regularly care for the child and it was not in the girl's best interests to make him a guardian.

But Newbury, supported in the decision by Justice David Frankel, focused on the "unfairness" of the trial judge's decision.

"I am driven to the view that, with respect, the trial judged erred in failing to consider the fact that ministry workers, the director and the court controlled how often and how long Mr. M was allowed to have contact with and to care for O," said Newbury.

"Having done so, they should not now be heard to say that that contact was not 'regular' or sufficient."

The father continued to care for and about his daughter and worked toward securing guardianship rights and, as a result, should be considered a "co-guardian" with the director, said Newbury.

In a dissenting opinion, Justice Harvey Groberman said the trial judge did not err and the father was realistically only a caregiver between April and November 2012.

Stephen Wright, the father's lawyer, said he couldn't speak specifically about his client but reflected on the ruling.

"It's an example of the court of appeal doing what they do well; you know, harmonizing the law and addressing individual interests and the interests of children," he said.

The Ministry of Children and Family Development said in an email Tuesday night that it is reviewing the decision and currently has no comment.

Newbury named the father and the director as the girl's guardians, told each to agree on their rights and responsibilities for her, but said the father can continue to contact his daughter in the interim.

The father grew up in a Saudi orphanage, came to Canada to study English, and met the child's mother, identified in court documents as D, in December 2008, said Newbury, noting the man is still in Canada on an expired student visa.

Newbury said the mother was addicted to crack cocaine and living on Vancouver's Downtown Eastside.

She said the father tried to help her and she moved into his apartment, but then she got pregnant and gave birth to the girl in December 2009.

"The next day D telephoned Mr. M from the hospital to tell him the news and to say she was about to place the baby for adoption," said Newbury.

"D told Mr. M he was a good man, but that he could not afford a child and lacked the ability to care for one and should focus on his studies instead."

Newbury said the mother registered the father as unknown and signed adoption papers. The girl was placed with a Vancouver foster family and eventually sent to Alberta to live with a family raising her half-sister as their adopted daughter.

Newbury said DNA testing confirmed M as the father.

The new Family Law Act was meant to address new social realities affecting children and families, said Newbury, noting parents may not be married, and since the 1980s "there has been a rise in the number of custodial claims by fathers in contests against unmarried mothers."

"At least according to one author, these developments have been accompanied by a shift away from a maternal preference in the assessment of a child's best interests," she said.