Customary Adoption in British Columbia: Recognizing the Fundamental Differences

• Author: Kisa Macdonald
• Position: Is currently studying law at the University of Victoria
• Pages: 17-23

ARTICLE

CUSTOMARY ADOPTION

IN BRITISH COLUMBIA:

RECOGNIZING THE

FUNDAMENTAL DIFFERENCES

By Kisa Macdonald*

: (2009) 14 Appeal 17-23

Jurisprudence in British Columbia reects a bias against the recognition of customary

adoptions. e Court has not recognized customary adoptions where the adoption allows

ongoing involvement of a birth parent, cohabiting relationships, or the adoption of adults

and elders. is paper argues for a sui generis approach to customary adoption, which

would consider the cultural and economic context of adoptions within Aboriginal com-

munities.

I. LEGAL FRAMEWORK

In British Columbia, the legal recognition of customary adoptions is set out in s.  of the

Adoption Act1as follows:

 () On application, the court may recognize that an adoption of a per-

son eected by the custom of an Indian band or aboriginal community

has the eect of an adoption under this Act.2

e word “may” allows the court to exercise discretion over whether a customary adoption

has legal eect. In applying judicial discretion, the court has relied on the common law

criteria set out in Re Tagornak Adoption Petition3(“Tago rn ak ”):

a. that there is the consent of both the natural and adopting parents;

b. that the child has been voluntarily placed with the adopting parents;

APPEAL VOLUME 14 w17

1Adoption Act, R.S.B.C. 1996, c. 5.

2Ibid. s. 46.

3Re Tagornak Adoption Petition, [1983] N.W.T.J. No. 38, [1984] 1 C.N.L.R. 185 (S.C.) [Tagornak].

* Kisa Macdonald is currently studying law at the University of Victoria. She has worked as a business analyst for

a pensions regulator in the U.K. and as an administrator of a non-prof‌it arts organization in B.C. She intends to

practice employment, immigration and family law.