Aboriginal Family Law Issues

From Clicklaw Wikibooks

Aboriginal people who are dealing with a family law problem may face some particular issues. Some of them involve cultural concerns while others stem from the federal government's Indian Act. This section addresses these issues briefly. However, for more complete information I strongly encourage you to consult with a family law lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." who has expertise in Aboriginal legal issues.

This section look at issues specific to Aboriginal people that relate to the care and control of children, calculating the amount of child and spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship. payments, and dividing family propertyA term under the ''Family Law Act'' referring to property acquired by either or both spouses during their relationship and after separation, if bought with family property. Both spouses are presumed to be equally entitled to share in family property. See "excluded property." and family debtA term under the ''Family Law Act'' referring to debt owed by either or both spouses that accumulated during the spouses' relationship and after separation, if used to maintain family property. Both spouses are presumed to be equally liable for family debt..

The care of children

All of the usual factors that govern the court's consideration of issues involving the care and control of children apply to the care and control of Aboriginal children, whether the childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."'s ancestry comes from one parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent." or from both. In addition to the usual factors, however, the court will also look at a few other issues related to the child's Aboriginal heritage.

Custody under the Divorce Act

In addition to the usual factors governing an award of child custodyIn family law, an antiquated term used by the ''Divorce Act'' to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. See "access." under s. 16 of the Divorce Act, the court must also take into consideration a child's Aboriginal heritage when making a decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact." about custody. This is not expressly set out anywhere in the legislationAn act; a statute; a written law made by a government. See "regulations.", but past cases have decided that a child's Aboriginal heritage should be considered as part of the general "best interests of the child" test.

This principle was established in British Columbia by D.H. v. D.M., [1999] 1 S.C.R. 761, a decision of the Supreme Court of CanadaThe highest level of court in Canada. This court hears appeals from the decisions of the Federal Court of Appeal and the provincial courts of appeal, including the Court of Appeal for British Columbia. There is no court to appeal to beyond this court. See "Court of Appeal" and "Supreme Court.". In its decision, the court said that:

"... the trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." judgeA person appointed by the federal or provincial governments to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, and are subject to appeal. had given careful attention to the aboriginal ancestry of [the child], together with all the other factors relevant to [the child's] best interests, and that there was no error in his decision ..."

In another caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.", Van de Perre v. Edwards, 2001 SCC 60, the Supreme Court of Canada commented that:

"... racial identity is but one factor that may be considered in determining personal identity; the relevancy of this factor depends on the context. ... All factors must be considered pragmatically, as different situations and different philosophies require an individual analysis on the basis of reliable evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony."."

Guardianship under the Family Law Act

In addition to the usual rules dealing with guardianship under the Family Law Act, members of Canada's First Nations are subject to an additional and unwelcome burden under the federal Indian Act, which allows the Minister of Aboriginal Affairs and Northern Development to appoint a person to be the guardian of the child. You should expect that this authority will only be exercised when both parents die without leaving a will that passes guardianship to some other person, or when there are serious concerns about the parents' ability to properly care for the child.

Where there is an application for guardianship of a treaty First Nation child in a family law court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order., under ss. 208 and 209 of the Family Law Act:

  1. the First Nation government must be served with notice of the applicationA request to the court that it make an order for a specific remedy or relief usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief.",
  2. the First Nation government has standingThe right of a party to bring a dispute under a particular act and before a particular court. In most cases, someone who does not have a direct or private interest in the matter at issue lacks standing to be a party in the court action. Someone can also ''lack standing'' to bring an action under a particular statute or section of a statute if the statute or section includes criteria that the person does not meet. in the court proceeding, and
  3. the court must consider the laws and customs of the First Nation in making its decision.

Section 208 applies to Nisga'a children; s. 209 deals with other treaty First Nation children and says this:

(1) If an application for guardianship is made respecting a treaty first nation child and the final agreement of the treaty first nation to which the child belongs provides for it, the treaty first nation
(a) must be served with notice of the proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action.", and
(b) has standing in the proceeding.
(2) In a proceeding to which subsection (1) applies, the court must consider, in addition to any other matters it is required by law to consider and subject to any limits or conditions set out in the final agreement, any evidence or representations respecting the laws and customs of the treaty first nation.

Under s. 29.1 of the provincial Interpretation Act, the present treaty First Nations are the Tsawwassen First Nation and the Maa-nulth First Nations.

Remember that the only time an application must be made for guardianship is where a person, including a parent, is not presumed to have guardianship under s. 39 and has not been appointed as a guardian by a guardianA person charged with the legal care of someone under a legal disability. A term under the ''Family Law Act'' referring to a person, including a parent, who is responsible for the care and upbringing of a child through the exercise of parental responsibilities. See "disability," "parental responsibilities" and "parenting time."'s will or a Form 2 Appointment under the Family Law Act Regulation.

Access, parenting timeA term under the ''Family Law Act'' which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian." and contactA term under the ''Family Law Act'' that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities."

The same concerns relating to a child's Aboriginal ancestry that apply to determining custody under the Divorce Act will also come up in determining accessUnder the ''Divorce Act'', the schedule of a parent's time with his or her children under an order or agreement. Access usually refers to the schedule of the parent with the least time with the child. See "custody.", as well as parenting time and contact under the Family Law Act, especially where one of the parents isn't Aboriginal.

Aboriginal children have the right to keep a connection to their culture and heritage. This may influence the schedule of parenting time or contact an Aboriginal parent has, and where a non-Aboriginal parent may exercise parenting time or contact. It may also result in the court extending contact to a third partyA person named in a court proceeding or joined to a proceeding who is neither the claimant nor the respondent. A third party may be joined to a proceeding where the respondent believes that the person has or shares some responsibility for the cause of action. See "action," "cause of action" and "party.", such as an elder or another family member, who will keep the child in touch with his or her culture.

If a non-Aboriginal parent or a non-band member parent tries to exercise access to a child living on a reserve, the band may restrict that parent's ability to go onto the reserve to see the child. While this doesn't happen a great deal, the usual solution is for the parent trying to exercise access to ensure that the orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." or agreement which provides for the access requires the other parent to take the child off reserve for access visits.

Child support and spousal support

Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying child supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses. and spousal support.

There is, however, one significant additional issue about the calculation of income for the purposes of support calculations. Aboriginal people who qualify as "status Indians" under the federal Indian Act and who work on reserve may not be required to pay income tax. Because the Child Support Guidelines are based on the assumption that the payor of child support is also paying income tax, the standard method of calculating income under the GuidelinesShort for the Child Support Guidelines, a regulation to the federal ''Divorce Act'', adopted by each province and territory except Quebec, that sets the amount of child support a parent or guardian must pay based on the person's income and the number of children involved. would give a distorted result.

Under s. 19(1)(b) of the Guidelines, a tax-exempt payor may have his or her income grossed up to account for this tax advantage. The grossing-up process essentially involves figuring out how much money a taxed payor would have to earn to have the tax-exempt person's income once income taxes are taken off.

Think of it like this:

Say a non-exempt payor makes a gross income of $40,000 per year. This is the non-exempt payor's income for the purposes of the Guidelines. Now, the non-exempt payor also pays taxes on that income, so his or her net incomeThe remainder of a person’s annual income after the mandatory deductions have been paid, which may include CPP, EI, income taxes and union or professional dues. For self-employed persons, necessary and reasonable business and operating expenses may also be deducted to determine net income. might really be about $30,000.
A tax-exempt payor making $40,000, on the other hand, would actually keep the whole $40,000 since no income taxes are paid on the $40,000. This, according to the Guidelines, is unfair, and the exempt payor's income should be re-calculated upwards.
Under the Guidelines, the tax-exempt payor must pay child support at a Guidelines income of what he or she would earn to have an after-tax income of $40,000, as if taxes were paid on his or her income. If a non-exempt payor would have to earn $55,000 to have a net income of $40,000, the tax-exempt payor's income will be set, for the purposes of child support, at $55,000.

In this example, a tax-exempt payor who earns $40,000 per year free of income tax, might be deemed to earn $55,000 per year for the purposes of child support, and child support will be calculated based on a Guidelines income of $55,000 per year. Grossing-up a payor's income is intended to ensure that the children benefit from the amount of support available based on an a gross income equivalent to what a non-exempt payor would earn to have the same net income.

The same sort of grossing-up process will apply when determining how much spousal support a tax-exempt payor should have to pay, particularly if the amount payable is being determined using the Spousal Support Advisory GuidelinesAn academic paper released by the Department of Justice that describes a variety of mathematic formulas that can be applied to determine how much spousal support should be paid and how long spousal support should be paid for, once a spouse is found to be entitled to receive support. The Advisory Guidelines is not a law., since the Advisory GuidelinesShort for the Spousal Support Advisory Guidelines, an academic paper released by the Department of Justice that describes a variety of mathematical formulas that can be applied to determine how much spousal support should be paid and how long spousal support should be paid for, once a spouse is found to be entitled to receive support. The Advisory Guidelines is not a law. use the same approach to calculate income as the Child Support GuidelinesA regulation to the federal ''Divorce Act'', adopted by every province and territory except Quebec, that sets the amount of child support a parent or guardian must pay, usually based on the person's income and the number of children involved..

Family propertySomething which can be owned. See "chattels" and "real property." and family debt

Dividing property can be a bit of a problem for Aboriginal spouses when real propertyA parcel of land and the buildings on that land. See "chattel," "ownership" and "possession." on reserve is involved.

In a nutshell, the Constitution Act gives the federal government exclusive authority over laws relating to First Nations property and reserve lands. This means the provincial governments cannot pass laws dealing with First Nations property or their lands. Accordingly, in British Columbia, the Family Law Act can't be used to divide an interest in real property on reserve lands. Making matters worse, people living on reserve generally don't own their property the way that off-reserve property can be owned. The only kind of ownershipA legal right to have a thing that is enforceable in court. See "possession." individuals on reserve lands can have is a Certificate of Possession that gives the owner the right to occupy the landReal property; a parcel of real property and the buildings upon it. See also "chattel," "ownership" and "possession." but not the legal titleIn law, a document demonstrating ownership of a thing. See "ownership." to that land.

If a treaty First Nation has negotiated the right to dispose of reserve lands, the rules are a bit different and the court may be able to make orders about real property on reserve lands under the 'Family Law Act. Section 210 of the Family Law Act says this:

(1) If provided for by the final agreement of a treaty first nation, the treaty first nation has standing in a proceeding under Part 5, in which
(a) the treaty first nation is entitled under its final agreement to make laws restricting alienation of its treaty lands,
(b) a parcel of its treaty lands is at issue, and
(c) at least one spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." is a treaty first nation member of the treaty first nation.
(2) In a proceeding to which subsection (1) applies, the Supreme Court must consider, among other matters, any evidence or representations respecting the applicable treaty first nation's laws restricting alienation of its treaty lands.
(3) The participation of a treaty first nation in a proceeding to which subsection (1) applies must be in accordance with the Supreme Court Family Rules and does not affect the court's ability to control the court's process.

These are the general rules about family property and the court's authority under the Family Law Act:

  • Financial Assets: Cash, bank accounts, stocks, bonds and whatnot are called moveable property. The court can deal with these sorts of assets if they are not situated on reserve lands.
  • Real Property: Property and structures on reserve lands are immovable property. The court cannot order the transferIn law, the act of an owner of a thing giving ownership of that thing to another person, in exchange for money or other property in the case of a sale or in exchange for other rights in the case of a family law agreement. See "family law agreements," "ownership" and "sale." of immovable property, but it can deal with other assets, like moveable property, to compensate a spouse for an interest in property which the court cannot deal with.
  • Certificates of Possession: The court generally cannot deal with real property located on a reserve, however, the bulk of real property located within reserve lands is not "owned" the way a house off-reserve can be. People holding real property on reserve lands are generally only allowed to have and use the land by way of a Certificate of Possession. Since Certificates of Possession are dispensed under the authority of the federal government, the court cannot make an order for the transfer of the Certificate under the Family Law Act. The spouse who has the Certificate will usually have to compensate the other spouse for their interest in the Certificate, providing that the Certificate can be shown to have a value.
  • Exclusive Use of Property: Section 90 of the Family Law Act allows someone to apply for an order giving them exclusive use of the family homeIn family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property.", but does not apply to family homes located on reserve lands.


Family Homes on Reserves and Matrimonial Interests or Rights Act

In December 2013, the Federal Government proclaimed a new law, the Family Homes on Reserves and Matrimonial Interests or Rights Act (the “Act”).This Act, finally provides a process for dealing with family homes on reserve, during a relationship between married spouses or common-law partners, after that relationship breaks down or when a spouse or partner dies.

The Act is divided into two parts. The first part of the Act provides a mechanism for First Nations to enact laws respecting homes on reserve. This part of the Act has been in force since December 16, 2013.

The second part of the Act came into force a year later on December 16, 2014, and provides rules to deal with homes on reserve until such time as a First Nation opts to enact its own laws to deal with homes on reserve.

Generally, this law applies to married couples and common-law spouseA popular misconception under which people are supposed to become married spouses simply by living together. Common-law marriages have never been lawful in British Columbia. See "common-law marriage," "married spouse" and "unmarried spouse." living on reserve, where at least one of them is a First Nation band member or First Nation person entitled to be band member or status Indian whose First Nation has not opted to take over responsibility for the management and control of their reserve lands and resources under the First Nations Land Management Act or manage their lands pursuant to a self-government agreement.


Division of the Value and Interests or Rights to the Family Home

The Act sets out that spouses or common-law partners are entitled to one half of the value of the interest or right that either of them holds in the family home in the event of relationship breakdown or death of one of the spouses.

Sections 28 and 34 of the Act outline the details on how value of the family home is to be determined. It takes into consideration the appreciation in value that may have occurred during the relationship, contributions made by each spouse and any debts or liabilities; and is typically based on the amount that a buyer would reasonably be expected to pay for comparable interests.


Emergency Protection Orders

While the Act provides that designated judges have the power to make emergency protection orders, the Province has decided it will not designate judges to make emergency protection orders under the Act at this time. Currently, the only protection orders available are those made under section 183 of the Family Law Act, which remain available both on and off reserve.


Death of a Spouse or Common Law Partner

Paragraph 14 of the Act provides that a spouse who does not hold a right or interest in the family home on reserve can stay in the home for a period of 180 days after the day on which the death of their spouse or common lawThe legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts. The system of justice used in non-criminal cases in all provinces and territories except Quebec. partner occurs.

Getting legal help

This section is only a brief sketch of some of the special issues that Aboriginal people might have to deal with in the course of a family law dispute. If you have a problem touching on one of these areas, you should get advice from a lawyer.

You may be able to get legal help from the Legal Services Society's Aboriginal band outreach program or an Aboriginal community legal worker. Look for these agencies on www.clicklaw.ca using the HelpMap feature to find help near to where you are.

Resources and links

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