Customary Care for First Nations, Inuit and Métis Children in Ontario

When a children's aid society (CAS) is involved with a First Nations, Inuk or Métis child, families and communities often want the child cared for within the community rather than in foster care. Ontario's child protection law has specific provisions for this.

This article explains customary care under the Child, Youth and Family Services Act, 2017 (CYFSA), what the society must do, and how the band or community takes part. Details of any particular community's customs are for that community, and a lawyer can help you understand how the law applies to your family.

What customary care means

Under the CYFSA, "customary care" means care and supervision of a First Nations, Inuk or Métis child by someone who is not the child's parent, according to the custom of the child's band or First Nations, Inuit or Métis community. The Act also says First Nations, Inuit and Métis peoples should be entitled to provide their own child and family services wherever possible.

The definition points to the community's own customs. The Act does not set out what those customs are, so the community is the proper source for how customary care works in its own tradition.

The society's duty to pursue customary care

Section 80 of the CYFSA says a society must "make all reasonable efforts to pursue a plan for customary care" in certain cases. It applies to a First Nations, Inuk or Métis child who needs protection, cannot stay with or return to the person who had charge of them, and is a member of or identifies with a band or community.

• The child needs protection.
• The child cannot stay with or return to the person who had charge of them.
• The child is a member of, or identifies with, a band or community.

The duty is to make reasonable efforts to pursue a plan, which is not a guarantee that one will be approved. Whether financial support is available for a customary care arrangement can vary, so ask the society and the community what applies.

The role of the band or community

When a society is considering placing a child with a relative or community member, it must consult the child's bands and communities before the kin-placement procedures begin. If it cannot, it must use best efforts to consult them after the procedures begin. "Extended family" for these children also includes members of the bands and communities the child belongs to or identifies with.

In a child protection court case, the parties include the society and the child's parent. For a First Nations, Inuk or Métis child, a representative chosen by each of the child's bands and communities is also a party. A band or community representative may also start a status review of a final order.

How the court approaches placement

Courts must consider the child's best interests, and for First Nations, Inuk or Métis children those factors include preserving cultural identity and community connection. Before ordering a child removed from the person who had charge of them, the court must consider placing the child, with consent, with a relative, neighbour or other member of the child's community under a supervision order.

When the court does place the child, it must, unless there is a substantial reason to place the child elsewhere, place the child with extended family if possible. If that is not possible, it must place the child with another family from the child's community. Court timetables are strict and can be lengthened only if the child's best interests require it, and the parties cannot extend them by consent.

What to do next

• Contact the band, First Nation, or Inuit or Métis community office and tell them the society is involved.
• Ask the society in writing whether it is pursuing a customary care plan and who is consulting the community.
• Identify relatives and community members who could care for the child and are willing to be assessed.
• Keep a record of every meeting, call and document.
• Find out whether the band or community has chosen a representative for the court case.
• Speak with a lawyer early, as child protection cases move on short timelines.

Frequently asked questions