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3.3 Adoption
- 3.3.1. Background
- 3.3.2. Indian Act Governance
- 3.3.3. Sectoral Governance Initiatives
- 3.3.4. Comprehensive Governance Arrangements
- 3.3.4.1. Comprehensive Governance Arrangement – Comparative Charts
- 3.3.5. BC First Nations’ Laws/By-laws in Force and Other Activities
- 3.3.6. Resources
3.3.1. Background
Jurisdiction over adoption is exercised by provinces. BC has enacted the Adoption Act (R.S.B.C. 1996, c. 5). Canada has made no specific laws in relation to adoption under its constitutional authority for “Indians and lands reserved for Indians.” However, under the Indian Act Canada does recognize “customary adoption,” which is reflected in the definition of “child.” The definition of child includes “a legally adopted child and a child adopted in accordance with Indian custom.” INAC, accordingly, has developed a customary adoption policy that sets out what must be provided to demonstrate a customary adoption has taken place.
Canada has taken the position that First Nation jurisdiction over adoption should not be included in comprehensive governance arrangements. However, recent treaty arrangements do provide First Nations with some law-making powers over adoption. For First Nations, this is an important subject, as First Nation laws can include traditional adoptions reflecting cultural practices not sanctioned under provincial laws.
Canada’s reluctance to recognize broad First Nation jurisdiction over adoption is partly tied to concerns over funding and increasing the numbers of persons registered as status Indians under the Indian Act. Presumably, if a First Nation can make laws on adoption, people ineligible for adoption under provincial and federal laws (and policies) or not wishing to be adopted under these laws and policies, could be adopted under the First Nation’s law, and thereby potentially obtain status (persons legally adopted are entitled to status as the children of the individual(s) adopting them).
Jurisdiction over adoption is linked to the subject matter of Child and Family, which includes child welfare. In BC, the provincial government has recognized in its Adoption Act a more open process for custom adoption. This provision is used specifically in relation to children in provincial care. The Ministry of Children and Family Development has stated that intention to try to ensure First Nation’s children in care are raised with Aboriginal families whenever possible, thereby keeping them connected with their extended family and community. For the province, custom adoption provides greater choice when considering permanency options for Aboriginal children in continuing care. Custom adoption in BC is defined as “the cultural practices of Aboriginal peoples to raise a child, by a person who is not the child's parent, according to the custom of the First Nations and/or Aboriginal community of the child.” Custom adoption has the same effect as an adoption order under the Adoption Act, when the court makes a declaration pursuant to an application under the Adoption Act. The courts in BC have identified the factors to consider when they declare that a custom adoption has occurred. These include:
- consent of the birth and adopting parent(s);
- child has been voluntarily placed with the adopting parent(s);
- adopting parent(s) are indeed native or entitled to rely on native custom;
- rationale for native custom adoptions is present; and,
- the relationship created by custom must be understood to create fundamentally the same relationship as that resulting from an adoption order under Part 3 of the Adoption Act.
3.3.2. Indian Act Governance
There are no powers over adoption under the Indian Act either in respect of the Minister or the First Nation. However, under the Indian Act persons legally adopted are entitled to be registered as Indians.
3.3.3. Sectoral Governance Initiatives
There are no current or contemplated sectoral governance initiatives dealing with adoption.
3.3.4. Comprehensive Governance Arrangements
The treaty agreements provide for some jurisdiction over adoption of citizens. Tsawwassen has enacted a Children and Families Act which includes rules respecting adoption of Tsawwassen citizens (Children and Families Act (Tsawwassen), ss. 24-27). The Westbank Self-Government Agreement does not provide for jurisdiction over adoption (BC was not a party to the negotiations).
3.3.4.1. – Comprehensive Governance Arrangement - Comparative Charts
| Conflict of Laws: | |
Sechelt |
|
Westbank |
|
Nisga’a |
Nisga’a law prevails. (Ch. 11, s. 99) |
Tsawwassen |
Tsawwassen law prevails. (Part 16, s. 63) |
Maa-nulth |
Maa-nulth law prevails. (Ch. 13, s. 13.15.9) |
3.3.5. BC First Nations’ Laws/By-laws in Force and Other Activities
Indian Act Governance
By-laws
| First Nation | By-law# | By-law Title | Description |
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Comprehensive Governance Arrangements
| First Nation | By-law | Description |
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Other
Agreement |
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3.3.6. Resources
- Indian and Northern Affairs – Customary Adoption Policy
Terrasses de la Chaudière
10 Wellington
Ottawa, ON K1A 0H4
Toll Free: 1-800-567-9604
Fax: 1-866-817-3977
Toll Free: 1-866-553-0554
Email: InfoPubs@ainc-inac.gc.ca
www.ainc-inac.gc.ca
- Ministry of Children and Family Development
Representative for Children and Youth
Mary Ellen Turpel-Lafond
Suite 201, 546 Yates Street
Victoria, BC V8W 1K8
Phone: 250-356-6710
Toll Free: 1-800-476-3933
Fax: 250-356-0837
Email: rcy@rcybc.ca
www.rcybc.ca
- British Columbia's Adoption Act
http://www.mcf.gov.bc.ca/adoption/custom_adoption.htm
- Adoptive Families Association of British Columbia (AFABC)
200 - 7342 Winston Street
Burnaby, BC V5A 2H1
Phone: 604-320-7330
Fax: 604-320-7350
www.bcadopt.com
