CAS and Customary Care in Ontario and Canada: A Plain-Language Guide

CAS and customary care in Ontario and Canada can be difficult to understand because customary care is rooted in the laws, customs and caregiving traditions of First Nations, Inuit and Métis peoples, while child-welfare legislation differs across the country. In Ontario, customary care may allow an Indigenous child who cannot remain with a parent to be cared for by another person according to the custom of the child’s band or First Nations, Inuit or Métis community.

Educational note: This article provides general public legal education. It does not decide whether a child needs protection, identify an appropriate caregiver or interpret a particular customary care agreement. Families, caregivers and communities should obtain advice from a qualified lawyer and guidance from the relevant Indigenous community or governing body.

What Customary Care Means

Ontario’s Child, Youth and Family Services Act, 2017 (CYFSA) defines customary care as the care and supervision of a First Nations, Inuk or Métis child by a person who is not the child’s parent, according to the custom of the child’s band or First Nations, Inuit or Métis community.

This definition makes the community’s custom central. Customary care is not created only by CAS choosing a placement. It commonly involves the child’s community, the proposed caregiver, the parents, the child where appropriate and a children’s aid society.

Customary care may help a child maintain family, community, cultural, language and land connections. Processes differ among communities.

CAS and Customary Care in Ontario and Canada

Ontario uses the term “children’s aid society” or “society.” Other provinces and territories use different agency names and legal terms. There is no single Canadian customary care procedure.

Provincial or territorial legislation, federal law and Indigenous law may all be relevant to notice, participation, placement and decision-making.

This article focuses mainly on Ontario. Readers elsewhere should check the legislation, court information and Indigenous laws applicable in their jurisdiction.

When an Ontario Society Must Pursue Customary Care

Section 80 of the CYFSA requires a society to make all reasonable efforts to pursue a customary care plan for a First Nations, Inuk or Métis child when the child:

• is in need of protection;
• cannot remain with or be returned to the person who previously had care and custody, or to the person entitled to custody under an enforceable order; and
• is a member of, or identifies with, a band or First Nations, Inuit or Métis community.

Reasonable efforts do not guarantee that a proposed caregiver or arrangement will be approved. Safety, best interests, community custom and applicable law remain relevant.

Customary care may also be used preventively where there are no child-protection concerns. The legal and funding framework for a prevention-focused arrangement may differ from one supervised in a protection matter.

The Role of the Indigenous Community

The band or First Nations, Inuit or Métis community is not merely consulted about a placement chosen by CAS. Its customs and authority are fundamental to whether an arrangement is customary care.

Depending on the community and circumstances, its role may include:

• identifying or confirming appropriate caregivers;
• issuing a customary care declaration;
• participating in planning meetings or circles;
• identifying cultural, language and community supports;
• helping define the responsibilities of the participants;
• monitoring or supporting the arrangement; and
• applying its own child and family services law where that law governs.

The correct community representatives and process should be confirmed directly.

The Role of a Children’s Aid Society

In a protection matter, a society may assess concerns and the proposed home, work with the community, supervise the arrangement and administer supports.

Ontario describes children in customary care as typically not being legally in the care of a society. This is an important distinction from interim or extended society care. However, a society may supervise a customary care arrangement, and the responsibilities set out in the agreement or court orders must be checked.

A society’s involvement does not replace the community’s role or turn every Indigenous kinship placement into customary care.

The Customary Care Agreement

A written customary care agreement may address:

• who will provide day-to-day care;
• the roles of parents, caregivers, the community and the society;
• contact with parents, siblings and other important people;
• education, health care and other decisions;
• cultural, spiritual, language and community connections;
• financial or practical supports;
• supervision, reviews and information sharing; and
• how the arrangement may be changed or ended.

Agreements do not have identical legal effects. Their wording, related declarations, court orders and governing laws matter. Anyone asked to sign should have an opportunity to understand the document and obtain independent legal advice.

Customary Care Compared With Other Arrangements

Kinship service

Kinship service generally describes a child living with a relative or community member while not in society care. It does not automatically involve an Indigenous community declaration or care according to community custom.

Kinship care

In Ontario usage, kinship care is generally a foster-care placement with a relative or community member when the child is in society care. Customary care is a distinct, culturally grounded arrangement.

Foster care

Foster care is a licensed placement for a child in society care. Ontario states that licensing requirements usually apply to supervised and subsidized customary care in protection matters. Pending exemptions require proclamation and regulations, so current requirements must be verified.

Society care

Interim or extended society care is a legal status under a court order. A child in customary care is typically not in society care, although CAS may supervise the customary care plan.

Adoption or customary adoption

Customary care is not automatically an adoption. Customary adoption and statutory adoption have different legal processes and effects. Federal law requires placement decisions to take Indigenous customs and traditions, including customary adoption, into account.

Parent, Child and Caregiver Roles

Customary care does not have one universal effect on parental rights or decision-making. The agreement, any court order and the applicable provincial, federal or Indigenous law must be reviewed.

Children should receive understandable information and opportunities to express their views where appropriate. Their identity, relationships, culture and community connections should be considered alongside safety and other needs.

Caregivers should understand their authority for daily, medical, educational and travel decisions and any record, approval or review requirements.

Federal Law and Placement Priorities

The federal Act respecting First Nations, Inuit and Métis children, youth and families establishes national principles and minimum standards and recognizes Indigenous jurisdiction over child and family services.

Subject to the child’s best interests, section 16 gives placement priority to:

1. a parent;
2. another adult family member;
3. an adult belonging to the same Indigenous group, community or people;
4. an adult belonging to another Indigenous group, community or people; and
5. another adult.

The possibility of placement with or near siblings and other family members must be considered. Placements must also take Indigenous customs and traditions, including customary adoption, into account. Applicable Indigenous law may provide more specific direction.

What May Happen Next

Participants may identify the child’s community, contact its representative, discuss caregivers, assess the proposed home, prepare documents and arrange supports.

There may also be a child-protection court proceeding, a supervision order or another legal process. Customary care does not necessarily require the same court order in every situation. The parties should verify whether proceedings remain active and how the proposed plan relates to existing orders.

The arrangement may be reviewed as the child’s needs and circumstances change. No particular outcome is automatic.

General, Non-Legal Practical Steps

These organizational steps may help a family or caregiver understand the process:

• Ask which Indigenous community, governing body and law are involved.
• Request copies of the declaration, agreement, care plan and relevant court orders.
• Write down each participant’s role and contact information.
• Ask who may authorize health care, education, travel and other decisions.
• Keep records of meetings, reviews, supports and agreed next steps.
• Ask for interpretation, accessibility or culturally appropriate communication support when needed.
• Store child-welfare and identity records securely.

These are general information-management steps, not legal advice.

Emotional, Cultural and Family Impact

An out-of-home arrangement may involve grief, uncertainty and changing family roles. It may also preserve relationships and cultural connections. Experiences differ.

A trauma-informed approach avoids assumptions. Culturally grounded counselling, Elders, Knowledge Keepers and community supports may be helpful when chosen and appropriate.

When Professional Assistance May Be Appropriate

Legal advice may be important before signing an agreement, during a protection case, when interpreting decision-making authority, when a placement may change or when provincial, federal and Indigenous laws may interact.

Possible resources include a lawyer experienced in child protection and Indigenous law, Legal Aid Ontario, duty counsel, the relevant Indigenous community or governing body, an Indigenous legal service and the Office of the Children’s Lawyer where applicable. Availability and eligibility should be confirmed directly.

How Presumption of Innocence Canada May Help

Presumption of Innocence Canada provides public legal education and moderated discussion groups. Its materials may help readers understand general terminology, locate reliable Canadian sources and prepare questions for a qualified professional.

PIC does not determine whether a child needs protection, approve caregivers, create or interpret a customary care agreement as legal advice, represent participants, direct litigation or promise outcomes. Its discussion groups provide general peer support and are not confidential legal consultations or a substitute for culturally appropriate community support.

Frequently Asked Questions

1. What does CAS and customary care in Ontario and Canada mean?

In Ontario, it concerns the relationship between a children’s aid society and care provided to a First Nations, Inuk or Métis child according to the custom of the child’s community. Processes and terminology differ elsewhere in Canada.

2. Is customary care available to every child?

Under Ontario’s CYFSA definition, customary care applies to First Nations, Inuk or Métis children and depends on the custom of the child’s band or community.

3. Is a child in customary care legally in CAS care?

Typically not, according to Ontario’s public guidance. CAS may still supervise the arrangement. The agreement, court orders and legal status should be checked.

4. Is customary care the same as kinship care?

No. Both may involve relatives or community members, but customary care depends on Indigenous community custom and involvement. Kinship care in Ontario often refers to a foster placement for a child in society care.

5. Does customary care end a parent’s rights?

Not automatically. The effect on custody, contact and decision-making depends on the agreement, court orders and applicable law. A lawyer should review the documents.

6. Does the proposed caregiver have to be a relative?

Not necessarily. The CYFSA definition refers to a person who is not the child’s parent and care according to community custom. The community and applicable law guide caregiver selection.

7. Must CAS consider customary care?

Section 80 of the CYFSA requires reasonable efforts in specified circumstances involving an Indigenous child who needs protection and cannot remain with the previous caregiver.

8. Is customary care the same throughout Canada?

No. Provincial, territorial and Indigenous laws and community customs differ. Federal legislation also establishes principles, placement priorities and recognition of Indigenous jurisdiction.

Related Educational Resources

• CAS Investigations
• Emergency Removal
• Temporary Care
• Society Care
• Temporary Orders
• Protection Hearings
• Parenting Time and Contact

Suggested Authoritative Canadian Sources

• Ontario e-Laws for the current CYFSA and regulations.
• Ontario Ministry of Children, Community and Social Services customary care guidance.
• Ontario Court of Justice child-protection information.
• Justice Laws Website for the current federal Act.
• Published laws, policies and official information of the child’s Indigenous governing body or community.
• Legal Aid Ontario and Indigenous legal services for current public legal information.

Conclusion

CAS and customary care in Ontario and Canada involves more than selecting an out-of-home placement. In Ontario, customary care is grounded in the child’s First Nations, Inuit or Métis community and its customs, while CAS may have assessment, planning, supervision and support responsibilities. Because community processes and governing laws differ, the actual agreement, court orders and applicable provincial, federal and Indigenous law should be reviewed with qualified legal and community professionals.

Sources

• Ontario, Child, Youth and Family Services Act, 2017: https://www.ontario.ca/laws/statute/17c14
• Ontario, “Customary care”: https://www.ontario.ca/page/customary-care
• Ontario Court of Justice, “Child Protection”: https://www.ontariocourts.ca/ocj/family-court/child-protection/
• Ontario, “Funding for caregivers of children in need of protection”: https://www.ontario.ca/page/funding-caregivers-children-need-protection
• Justice Laws, An Act respecting First Nations, Inuit and Métis children, youth and families: https://laws-lois.justice.gc.ca/eng/acts/F-11.73/

Educational Disclaimer

This article provides general educational information only. It is not legal advice and does not create a lawyer-client relationship. Legal procedures and rights may vary by jurisdiction and individual circumstances. Anyone facing a legal matter should obtain advice from a qualified lawyer.