Customary adoption and tutorship

In Quebec, the legal effects of First Nations customary adoption and tutorship are recognized

What are customary adoption and tutorship?

Customary adoption or customary tutorship is a consensual, collective and family-based process, which requires the consent of the parents of origin, adoptive parents or guardians and, if necessary, the consent of the child.  

It is a family- and community-based practice that allows for supporting and protecting children, their parents and the rest of their families without court intervention. Customary adoption and tutorship have always been part of the rights and jurisdiction of First Nations self-government. They are an integral part of the lives and cultures of families and communities. 

In harmony with family values that are very important for First Nations, customary adoption and tutorship allow children to remain connected to their culture, language and traditional activities, and therefore, to preserve their sense of identity.

Did you know?

In 2017, the Quebec government adopted Bill 113, An Act to amend the Civil Code and other legislative provisions as regards adoption and the disclosure of information, which greatly facilitated the daily lives of families. Prior to the adoption of this legislation, administrative barriers often hampered the practice of ancestral traditions. The government did not recognize the legal effects of customary adoption and tutorship and, therefore, the child’s adoptive parent or guardian was not recognized as their legal guardian. 

Customary adoption or tutorship can simplify the daily lives of families

Here are the benefits of this practice.  

Once the customary adoption or tutorship is duly recognized, adoptive parents or guardians become the primary caregivers as if they were the child’s biological parents. Here are some examples of what they can then do. 

  • Pick the child’s school 

They can enroll their child in a new school after moving or allow their child to take up new sports challenges in a new school. 

  •  Make decisions about the child’s health 

They can give their consent to medical care for their child be it for prevention or following an accident. 

  •  Pass on spiritual or religious beliefs to the child (if applicable) 

This is allowed with a view to protecting culture. 

  •  Give the child permission to travel outside of Canada 

They can sign the passport application to allow the child to travel and expand their horizons, for example for a family vacation or a school trip. 

  •  Manage the child’s money and assets 

They become responsible for the child’s assets and bank accounts to ensure their financial wellness and guide them in their life journey. 

CUSTOMARY ADOPTION

Since customary adoption is specific to First Nations, it must be interpreted differently from conventional adoption. 

Customary adoption transfers filiation from the parents of origin to adoptive parents in a traditional way. Among the First Nations, it is an open and non-confidential adoption that permanently modifies parental authority and responsibilities as well as the child’s birth certificate. However, parents of origin can continue to have ties to and a relationship with the child. 

Customary adoption differs from conventional adoption in some respects: 

  • Customary adoption is confirmed by the competent authority of the community or nation, unlike with conventional adoption, which must be confirmed by a judge. 
  • For customary adoption, a pre-existing bond of filiation can be recognized, and certain rights and obligations may remain between the parents of origin and the child, as is the custom. 

So that the legal effects of customary adoption can be recognized by the Quebec government, the competent authority must send the completed forms to the Directeur de l’état civil. 

Generally, First Nations children who are adopted in a customary fashion remain in their community, and their social identity as well as their bond with their family of origin are maintained. At the same time, new responsibilities and authority regarding the child are conferred on adoptive parents, and new ties are woven between the child and the adoptive family. 

CUSTOMARY TUTORSHIP

Customary tutorship does not break the bond of filiation between the child and their parents of origin. The parental responsibilities of the biological parents are suspended, and a guardian is appointed to take care of the child. The new guardians then get custody of the child, but do not become the child’s legal parents. 

It is the community’s competent authority that recognizes the legal effects of tutorship. Unlike with customary adoption, it is not necessary to send the tutorship certificate to the Directeur de l’état civil. 

To obtain a tutorship or customary care certificate, you must contact your community’s competent authority. Here is a list of the designated authorities.

Differences between customary adoption and customary tutorship

Act now to have your rights recognized!

The procedure is very simple. 

To obtain recognition of the legal effects of customary adoption or tutorship, the first step is to contact your community’s competent authority. Here is a list of the designated competent authorities.

If your community has no designated competent authority, you must contact your band council, which has the authority to appoint one. 

To learn more about this process, download the Reference guide: Appointing a Competent Authority for Customary Adoption and Tutorship in First Nations Communities and Nations. 

THE COMMUNITY IS TAKING CARE OF IT

Competent authority 

The competent authority serves as a bridge between Indigenous custom and the Quebec government. It can exercise its functions for a community, a group of communities or a nation. 

As genuine stakeholders in the process, adoptive families being able to benefit from their rights is essential. The competent authority can be composed of one or more people or be an official body. The community appoints its competent authority based on its governance process. 

To officially recognize the customary adoption or tutorship of the members of its community, the competent authority must ensure that the following three main principles are observed: 

  • The custom of the child’s community or nation is respected. In particular, the required consents must be validly given. 
  • The child’s best interests are considered. 
  • The child was entrusted to the adoptive parents or guardians. 

The competent authority then fills out the forms required for the issuance of the certificate and, if applicable, sends them to the Directeur de l’état civil. There is no need to go through the court. 

Customary adoption and tutorship are a manifestation of First Nations self-determination, self-government and jurisdiction regarding families and children and their identity, culture and language. 

How is the competent authority appointed?

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