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.
- A family wishing to have the effects of the customary adoption of a child recognized contacts the competent authority.
- The competent authority informs the family of the effects of customary adoption and the differences between customary adoption, customary tutorship and conventional adoption.
- The competent authority verifies that the established criteria have been met: a) It is in the child’s best interests. b) It is in accordance with the customs of the child’s nation or community and the required consents have been validly given. c) The child has been entrusted to adoptive parents.
- The competent authority verifies whether the child has an open file with the DYP. If the child is under the DYP, see the applicable procedure on page 8 of this guide under the “Customary adoption and tutorship and youth protection” section.
- Once the competent authority has confirmed that all criteria have been met, they fill out the form for the customary adoption certificate with all required information.
- The competent authority sends the duly completed certificate form to the Directeur de l’état civil, 2535, Laurier Blvd., Québec City, Quebec, G1V 5C6, or through the online services for notification of legal proceedings and documents.
- The DEC processes the application for a customary adoption certificate and modifies the child’s birth certificate accordingly. The certificate is kept in the archives of the DEC.
- A certified copy of the amended birth certificate is provided upon request to all parties to the adoption.
- A family wishing to have the appointment of a guardian recognized according to custom contacts the competent authority.
- The competent authority informs the family of the effects of customary tutorship and the differences between customary tutorship, customary adoption and conventional adoption.
- The competent authority verifies whether the established criteria have been met: a) It is in the child’s best interests. b). It is in accordance with the customs of the child’s nation or community and the required consents have been validly given. c) The child was entrusted to the guardian.
- The competent authority verifies whether the child has an open file with the DYP. If the child is under the DYP, refer to the applicable procedure on the Reference guide.
- Once the competent authority confirms that all criteria have been met, they complete the customary tutorship certificate with all required information.
- The parents of origin remain the child’s legal parents, but their parental responsibilities are suspended. The guardian then assumes parental responsibility for the child.
- The certificate and additional information form for the certificate of customary tutorship may be sent to the Directeur de l’état civil, 2535, Laurier Blvd., Québec City, Quebec G1V 5C6, or through the online notification services for legal proceedings and documents for archival purposes. A certified copy of the customary tutorship certificate bearing the official seal of the DEC is provided to the parties to the tutorship who request it.
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?
A community or nation appoints its competent authority based on its governance process. In practice, this often takes the form of a band council or tribal council resolution. It is then necessary to send the designation form for the competent authority to the Directeur de l’état civil.
To learn all about this simple procedure, download our reference guide and form kit.
- Designation of a Competent Authority
- Revocation of a Competent Authority
- Certificate of Customary Adoption
- Certificate of Tutorship/Customary Care
- Additional Information on Tutorship/Customary Care
Other documents on customary adoption:
- Rapport du groupe de travail sur l’adoption coutumière en milieu autochtone (French only)
- AFNQL/FNQLHSSC Brief on Bill 113 – An Act to amend the Civil Code and other legislative provisions as regards adoption and the disclosure of information – Recognition of Effects of First Nations Customary Adoption in and for the Purposes of Quebec Legislation
- Poster, pamphlet and others tools.
Please note that an information session of Indigenous customary adoption and tutorship is also available.