The Legal Status of Aboriginal Customary Adoption Across Canada: Comparisons, Contrasts and Convergences

Abstract

Aboriginal customary adoption has been recognized for over 40 years in Canadian courts and under statutes as forming legal family relationships without requiring the same administrative procedures as statutory adoption. The rights and obligations flowing from those relationships vary from tradition to tradition, however, and it is still unclear which customary practices will be upheld in litigation. The integral to a distinctive aboriginal culture test in constitutional law presents steep evidentiary hurdles, and, since most cases involve statutory rights and benefits, customary adoption has sometimes been narrowly interpreted as simply mirroring statutory adoption, resulting in similar rights and benefits. At the same time, mainstream adoption in Canada has been moving towards an openness model in practice but the details of these agreements are rarely legally enforceable. The openness of customary adoption is admired and copied across the country, while some First Nations and Inuit communities are discussing more safeguards for custom adoption than have traditionally been in place. There appears to be a slow convergence of customary and statutory adoption both socially and legally in Canada. The larger trend towards open adoption may in fact operate as a corrective in respect to the somewhat narrow interpretation of custom favoured by some courts and legislators.

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