Indigenous children are starkly overrepresented in Ontario’s child welfare system: there are 7 times as many children in care as their proportion of the population. The same problem existed in the 1980’s when the Supreme Court of Canada articulated the “best interests of the child” test in a de facto adoption case involving an Indigenous child. In Racine v Woods, the court ruled that when this test is applied, “the importance of cultural heritage opposed to bonding abates over time.” However, research reveals that Indigenous adoptees experience devastating identity crises. To address these issues, the Ontario government implemented legislation which obliges courts to consider the importance of preserving a “native” child’s “cultural identity” when determining his or her best interests. Despite this legislation, Ontario courts continue to apply the Racine principle and separate Indigenous children from their communities. This principle is ethnocentric and fails to address children’s need to develop a cultural identity. Further legislation is required to address the identity crises experienced by Indigenous transracial adoptees.
In Racine v Woods, the Supreme Court considered an application for de facto adoption of an Indigenous child. At six weeks old, the child was apprehended from her birth mother due to alcohol abuse and was made a society ward. When the child was five months old, she was placed with two foster parents who later separated. The child continued to live with the non-Indigenous female adult and her new Metis partner until the wardship expired. Subsequently, the child was returned to her mother. Shortly thereafter, the female adult took the child into her care, believing the mother had surrendered the child permanently. The mother later attempted to retrieve the child but the foster parents refused to surrender her. Three years later, the mother launched an application for habeas corpus. In response, the foster parents applied for de facto adoption-a form of adoption which dispenses with parental consent. At the time of the trial, the child had been in the foster parents care for 5 years. The trial judge granted the adoption order. Subsequently, the Manitoba Court of Appeal reversed the order. The critical issue for the Supreme Court was whether the trial judge had erred in finding that the child’s best interest lay with the foster parents. The court accepted the trial judge’s conclusion that the child’s attachment to the foster parents was more important than her heritage. As a result, the court reinstated the adoption order.
Analysis: “Bonding” vs Culture
From a policy perspective, the court focused on sending the message that “the law no longer treats children as property”. The court noted that the tie with natural parents is relevant in determining a child’s best interests. However, a child is not a “chattel” but rather a “human to whom parents owe serious obligations”. Relying on the testimony of one psychologist, the court then concluded that when the “best interests of the child test is applied, the significance of cultural background and heritage as opposed to bonding abates over time. The closer the bond that develops with the prospective adoptive parents, the less important the racial element becomes.” The mother’s three-year delay permitted the child to develop dependency on the foster parents as “psychological parents”. While “the cutting of ties with the natural mother should not be done lightly”, it was outweighed because the child had secure status as the child of two loving parents. In re-instating the adoption order, the court relied on expert evidence revealing the Metis father’s ability to guide the child through an identity crisis. However, it is unclear whether the court considered how this “best interests” test would affect Indigenous children who cannot be placed with an Indigenous parent.
The Impact of Transracial Adoptions for Indigenous Children: Identity Crises
In Racine, the court ruled that “the significance of cultural background as opposed to bonding abates over time”. This principle is Euro-centric, inaccurate and potentially harmful. Psychological bonding is a western concept that prioritizes individual relationships. Indigenous communities prioritize collective relationships. Elders play a critical role in the identity formation of Indigenous children by teaching skills needed to be a strong community member. From this perspective, individual bonding is less important than building connections with the larger community. The importance of tribal identity must be understood to recognize the impact of separation from tribal connections for Indigenous children.
Transracial adoption tends to result in negative outcomes for Indigenous adoptees. The rate of adoption breakdown for Indigenous children is 95%. A Metis social worker conducted a study with 18 Indigenous adoptees in Alberta which looked at the impact of substitute care on the identity of Indigenous children. One adoptee said: “I barely ever came home…when I turned 15, I just couldn’t take it any longer. [The adoptive parents] asked where I was going, and… I said, “I don’t know. I just know I don’t belong here”. Identity was viewed by all adoptees as the main loss they experienced through adoption. One participant said: “they shipped us off, put us somewhere and forgot about us; that’s it…I always hear adoptees saying how lost they felt and how disconnected…Lots of emotional instabilities.” All adoptees were driven to seek out their birth family because they had questions about who they are, where they come from and where they belong. One participant said: “I grew up thinking I was a nobody, I didn’t know my identity. So when I was a teenager I went through an identity crisis because…I started realizing I was different”. One participant indicated that she could not find anyone to identify with. Further studies indicate that Indigenous adoptees experience extremely low self-esteem and an overwhelming level of suicidal ideation. What’s more, 63% of Indigenous offenders were adopted. These studies indicate that identity evolves over time and that developing a healthy cultural identity is central to well-being for Indigenous children.
Recent Ontario decisions: applying Racine within the mandate of s 37(4) of the CFSA
In 1984, the Ontario government modified the Child and Family Services Act to address the overrepresentation of Indigenous children in the child welfare system. As per section 37(4), the court must consider an Indigenous child’s interest in preserving her cultural identity when determining the best interests of the child. However, this language leaves significant room for judicial discretion and the courts continue to privilege psychological bonding over the preservation of cultural identity. The courts acknowledge that Indigenous adoptees experience identity crises but nonetheless apply the Racine principle.
In Children’s Aid Society of the Country of Renfrew v K (C), Justice Kirkland was presented with two placement options for two Indigenous girls: the maternal grandmother or a non-Indigenous foster family. In this application for crown wardship, a Chief testified about the identity crises experienced by Indigenous transracial adoptees. The Chief asked the court to consider the best interests of the adult the child would become. A psychologist also testified that the children were attached to the foster family and viewed them as “psychological parents”. Given the girls’ attachment to the foster family and the grandmother’s alcohol problems, Justice Kirkland placed the girls with the foster family. She held that s 37(4) was satisfied because the family had demonstrated a willingness to “continue fostering cultural values” by taking the children to Pow Wows and festivals and reading historical books.
Similarly, in Catholic Children’s Aid Society of Metropolitan Toronto v W (V), Justice Main applied the Racine principle and held that it was not in an Indigenous child’s best interests to be returned to her biological mother. Justice Main acknowledged that Indigenous transracial adoptees may develop serious identity issues. She also acknowledged that bonding is a European concept foreign to Indigenous culture. However, removing the child from the foster home she had lived in for 3.5 years would be too “overwhelming” given the “strong bond” she developed with the foster parents. Culture and heritage carried less weight than her attachment to the foster family particularly because the concepts of Indigenous status had “no cognitive meaning to the child at the time”.
In both decisions, the legislation was held to be satisfied because the foster parents were “committed” to teaching the children about their culture- even though the parents were not legally bound to honor these intentions. These decisions also show a limited understanding of cultural identity. For example, one Indigenous adoptee said: “I needed more interaction with Aboriginal people, instead of white people giving me their idea of what Aboriginal people do”. An Indigenous author recommends rejecting the myth that “cultural and ethnic heritage can be instilled through books and pow wows”.
However, these decisions reflect the court’s focus on the child’s immediate interests. The “best interests of the child” test is inherently concerned with the child at the time of trial and can therefore promote outcomes that compromise the child’s future interests. The court is stuck between a rock and a hard place and does not have the tools to ensure that a child will be placed in a safe home and will also maintain a connection to her community. Because of the limits of this judicial framework, I believe legislative changes are required to address the identity issues experienced by Indigenous transracial adoptees.
In 2017, Bill 89 received royal assent which means that Ontario courts will be required to consider a child’s cultural identity and connection to the community when determining an Indigenous child’s best interests. Bill 89 also obliges societies to “make all reasonable efforts” to place Indigenous children in customary care arrangements. While these are positive steps, the language still leaves room for judicial discretion and courts will likely continue to prioritize children’s immediate interests. Sadly, it will not be possible to place every Indigenous child in customary care and those children are still at risk of losing connections to their community. Therefore, the legislation should indicate that when customary care is not possible, societies must ensure that a child has access to a community mentor.
Ontario courts continue to apply the Racine principle and separate Indigenous children from their communities. Many experience identity crises and adoption breakdown. While psychological bonding is integral to a child’s well-being, it is not more important than a child’s need to develop a cultural identity. This principle is inaccurate and should not carry legal weight. Courts are not satisfying the mandate of section 37(4) by relying on parents’ intentions to expose children to Indigenous culture. At the very least, Ontario legislation must oblige societies to connect Indigenous transracial adoptees with community mentors.
Provided by the Osgoode Family Law Association
 Hilary Brown, “The Child and Family Services Act in Relation to Indigenous Children. Does it Measure up to the Truth and Reconciliation Commission Report” (2017) 36 Can Fam L Q 171 at 171.
 R (AN) v (LJ) (1983), 36 RFL (2d) 1 (SCC) at para 1 [Racine].
 Ibid at para 28.
 Child and Family Services Act, RSO 1990, c C-11, s 37(4) [CFSA].
 Racine, supra note 2.
 Ibid at para 1
 Ibid at para 23.
 Ibid at para 28.
 Ibid at para 6-7.
 Ibid at para 30
 Ibid at para 28.
 Jeannine Carriere, “Maintaining Identities: The Soul Work of Adoption and Aboriginal Children” (2008) 6:1 Pimatisiwin: J Aboriginal & Indigenous Health 60 at 70.
 Ibid at 71.
 Raven Sinclair, “Identity lost and found: lessons from the sixties scoop” (2007) 3:1 First Peoples Child & Family Rev 65 at 65.
 Carriere, supra note 13.
 Ibid at 67.
 Ibid at 64.
 Sinclair, supra note 15 at 71.
 Ibid at 73.
 CFSA, supra note 4.
 2012 ONCJ 529, 2012 CarswellOnt 10476 [K(C)].
 Ibid at para 47.
 Ibid at para 37.
 Ibid at para 53.
 2000 CarswellOnt 5439 (Ont Ct J); affirmed 2001 CarswellOnt 3896 (Ont Supt Ct); affirmed 2002 CarswellOnt 1113 (Ont CA); leave to appeal refused 2002 CarswellOnt 3498 (SCC).
 Ibid at para 15.
 Ibid at para 14.
 Ibid at para 23.
 Ibid at para 17.
 Carrierre, supra note 13 at 67.
 Sinclair, supra note 15 at 76.
 Supporting Children, Youth and Families Act, SO 2017, c 14, s 74(3)(b).
 Ibid, s 80.