Customary Care and Indigenous Children's Adoption in Ontario

Families, bands and First Nations often ask how customary care fits with adoption in Ontario, and who gets a say when an Indigenous child's future is being decided. These are important questions, and the answers can depend on the child's circumstances, the community involved and the process being used.

This article explains the parts of Ontario's adoption framework that apply to any child, including Indigenous children: the types of adoption, consent, openness and records. It does not set out the detailed rules for customary care or the formal role of a band, because those depend on the facts. Those points are worth confirming directly with the band, a children's aid society or a lawyer.

What customary care means and what this article covers

In plain words, customary care usually refers to care of a child arranged according to the traditions and customs of an Indigenous community. It is different from a court-ordered adoption, which is a legal process that permanently changes who a child's legal parents are.

Whether a particular arrangement counts as customary care, who recognizes it, and how it interacts with an adoption application are questions that depend on the facts. If a band or First Nation is involved, ask it how it approaches these decisions before you start a court process.

The types of adoption in Ontario

Ontario recognizes four main types of adoption: public (a child in the permanent care of a children's aid society), private domestic, international, and adoption of a stepchild or relative who lives in Ontario. Which one applies to an Indigenous child depends on the child's situation.

Public adoption through a children's aid society costs prospective adoptive parents nothing. Applicants complete a mandatory SAFE homestudy and the 27-hour PRIDE training, and SPIRIT training and the HEART homestudy tool are alternatives for adopting Indigenous children.

Stepchild and relative adoptions are made directly through the Ontario court, with no adoption licensee needed. A judge may still require an assessment by an adoption practitioner.

Who must consent to an adoption

For a child under 16, or a child 16 or older who has not withdrawn from parental control, an adoption order cannot be made without the written consent of every parent. The word parent is defined widely for this purpose and includes a parent under the Children's Law Reform Act, someone with lawful custody, and someone who has shown a settled intention within the prior 12 months to treat the child as a child of their family.

• When the child is in extended society care, a Director's written consent is needed instead of the parents' consent.
• A person aged seven or older must give their own written consent, after a chance to get counselling and independent legal advice.
• A parent cannot consent before the child is seven days old.
• Before a parent consents, the society or licensee must tell them about the right to withdraw consent, and the parent must get a chance to seek counselling and independent legal advice.

If a parent refuses consent or cannot be found, the court may dispense with a required consent, other than the child's or a Director's, if that is in the child's best interests. The person must have received notice of the proposed adoption, or a reasonable effort must have been made to give notice.

A separate rule covers the consent of the person being adopted. The court may dispense with that consent if getting it would cause the person emotional harm, or if a developmental disability makes the person unable to consent.

Withdrawing consent and the finality of an order

A person who consented can withdraw the consent in writing within 21 days after giving it. After that, the court may allow a late withdrawal if that is in the child's best interests, but not if the child has been placed for adoption and remains in the care of the person they were placed with.

An adoption order is final and irrevocable, subject only to appeals, and no extension of the time to appeal will be granted. Because of this, families and bands who have concerns should raise them early and get legal advice before an order is made.

Staying connected after adoption

After an adoption, no court may make an order under Part VIII for access to the child by a birth parent or a member of a birth parent's family. Ontario does provide other routes for ongoing contact.

• Openness order: for a child in extended society care with an adoption plan, the society may apply before the adoption order is made. The society, the person who will have contact, the adoptive placement, and the child if 12 or older must all consent.
• Someone who held an access order for a child in society care and receives notice of the plan to place the child for adoption may apply for an openness order within 30 days after receiving the notice.
• Openness agreement: an adoptive parent and birth relatives or other listed people may make one at any time before or after the adoption order. Failing to follow it does not affect the validity of the adoption order.

Open adoption does not always mean visits, and agreements can allow various kinds of contact between the child, the adoptive family and people from the child's past.

What to do next

• Find out which type of adoption, if any, applies to the child.
• Contact the child's band or First Nation and ask how it approaches customary care and adoption decisions.
• Contact the children's aid society if the child is in its care, and ask about SPIRIT training and the HEART homestudy tool.
• List everyone who may count as a parent and who may need to consent.
• Note any deadlines you have received in writing, and act on them promptly.
• Speak with a lawyer before signing a consent or an openness agreement.

Frequently asked questions