Enhancing Access to Customary Care - Proposals under the Child, Youth and Family Services Act, 2017

Regulation Number(s):
O. Reg. 155/18
O. Reg. 156/18
Instrument Type:
Bill or Act:
Child, Youth and Family Services Act, 2017
Summary of Proposal:
Under s. 2(1) of the CYFSA, customary care is defined 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". Customary care arrangements practiced under the CYFSA also frequently meet the definition of "residential care". Customary care arrangements also meet the definition of "foster care" in many cases, which is a type of residential care. As a result, foster care licensing requirements will usually apply to customary care arrangements.

Representatives of First Nations, Inuit and Métis peoples indicate that the application of residential and foster care licensing requirements can limit the extent to which community custom can be implemented as customary care under the CYFSA. While rooted in promoting the best interests, protection and well being of children, First Nations, Inuit and Métis peoples have emphasized that the existing residential licensing requirements that usually apply to customary care may not align with traditional approaches that can enhance well-being. Such partners advocate for provincial requirements that allow for the practice of customary care to more closely align with community custom.
The proposed statutory and regulatory amendments to the CYFSA and the regulations made under it seek to better reflect the distinct customs of bands and First Nations, Inuit and Métis communities in the provision of customary care, including by more clearly distinguishing customary care from residential care under the CYFSA. The following provides a brief description of each of the proposals the ministry is considering:

Case-Specific Exemptions from Licensing Requirements - The ministry is considering the option of creating a mechanism by which a licensee may be exempted from requirements that otherwise would apply to a child receiving residential care that is also receiving customary care.

Recognition and Application of Community Standards - The ministry is considering proposing statutory and/or regulatory amendments that would provide for written standards developed by a band or First Nations, Inuit or Métis community to apply in place of some or all of the requirements placed on residential licensees in cases where a child who is a member of or identifies with that band or First Nations, Inuit or Métis community is being cared for in customary care.

Expanding the Customary Care Subsidy to include Parents - The ministry is considering ways to expand access to the customary care subsidy, which is currently authorized under section 71. The purpose of these proposed legislative amendments, if passed, is to provide for the parents of a child receiving customary care to receive financial support from a society or entity, where appropriate, to address financial needs that may create challenges with being reunited with their child.

For additional information on these proposals, see the discussion guide linked to below.
Analysis of Regulatory Impact:
Should these legislative proposals be implemented, associated costs for bands and First Nations, Inuit and Métis communities and within the child welfare sector more broadly may arise in the following areas: training, capacity building, standards development, administration and sector communication. There may also be increased need identified if societies and entities are permitted to provide subsidies to parents as well as customary caregivers.

The ministry's proposals support enhanced Indigenous control over matters that affect Indigenous peoples, particularly in the area of child and family services. Research indicates that enhanced Indigenous control over services has positive impacts (health/mental health, social, educational, economic) on First Nations, Inuit and Métis children and communities. These positive impacts, including those of an economic nature, can help to mitigate costs associated with these proposals.

All ministries are subject to requirements set out in the Modernizing Ontario for People and Businesses Act, 2020 (MOPBA), which came into force January 1, 2021. As part of its obligations under the MOPBA, the Ministry of Children, Community and Social Services will also complete a Regulatory Impact Analysis (RIA) to determine any additional impacts of these proposals. A regulatory impact assessment is a process of identifying and assessing the incremental benefits and costs of proposals.
Further Information:
Proposal Number:
Posting Date:
August 20, 2021
Comments Due Date:
October 4, 2021
Contact Address:
2 Bloor Street West, 30th Floor, Toronto, Ontario, M4W 3E2