https://wiki.clicklaw.bc.ca/api.php?action=feedcontributions&feedformat=atom&user=Rhaea+Bailey 2026-04-22T08:14:08Z User contributions MediaWiki 1.43.3 https://wiki.clicklaw.bc.ca/index.php?title=Indigenous_Families&diff=40757 2018-11-29T23:47:53Z

<p>Rhaea Bailey: </p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = specific}}{{JPBOFL Editor Badge<br /> |ChapterEditors = [[Rhaea Bailey]]<br /> }}<br /> {{Clicklawbadge<br /> |resourcetype = many resources on<br /> |link = [https://www.clicklaw.bc.ca/global/search?f=Aboriginal Aboriginal law topics]<br /> }}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 ''[http://canlii.ca/t/7vhk Indian Act]''. This section addresses these issues briefly. However, for more complete information I strongly encourage you to consult with a family law lawyer who has expertise in Aboriginal legal issues.<br /> <br /> 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 support payments, and dividing family property and family debt.<br /> <br /> ==The care of children==<br /> <br /> 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 child's ancestry comes from one parent 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.<br /> <br /> ===Custody under the ''Divorce Act''===<br /> <br /> In addition to the usual factors governing an award of child custody under s. 16 of the ''[[Divorce Act]]'', the court must also take into consideration a child's Aboriginal heritage when making a decision about custody. This is not expressly set out anywhere in the legislation, 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.<br /> <br /> This principle was established in British Columbia by ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761, a decision of the Supreme Court of Canada. In its decision, the court said that:<br /> <br /> &lt;blockquote&gt;&quot;... the trial judge 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 ...&quot;&lt;/blockquote&gt;<br /> <br /> In another case, ''[http://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60, the Supreme Court of Canada commented that:<br /> <br /> &lt;blockquote&gt;&quot;... 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 evidence.&quot;&lt;/blockquote&gt;<br /> <br /> ===Guardianship under the ''Family Law Act''===<br /> <br /> 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 ''[http://canlii.ca/t/7vhk 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.<br /> <br /> Where there is an application for guardianship of a treaty First Nation child in a family law court proceeding, under ss. 208 and 209 of the ''[[Family Law Act]]'':<br /> <br /> #the First Nation government must be served with notice of the application,<br /> #the First Nation government has standing in the court proceeding, and<br /> #the court must consider the laws and customs of the First Nation in making its decision.<br /> <br /> Section 208 applies to Nis&lt;u&gt;g&lt;/u&gt;a'a children; s. 209 deals with other treaty First Nation children and says this:<br /> <br /> &lt;blockquote&gt;&lt;tt&gt;(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&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(a) must be served with notice of the proceeding, and&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(b) has standing in the proceeding.&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> <br /> Under s. 29.1 of the provincial ''[http://canlii.ca/t/844q Interpretation Act]'', the present treaty First Nations are the Tsawwassen First Nation and the Maa-nulth First Nations.<br /> <br /> 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 guardian's will or a Form 2 Appointment under the [http://canlii.ca/t/8rdx Family Law Act Regulation].<br /> <br /> ===Access, parenting time and contact===<br /> <br /> 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 access, as well as parenting time and contact under the ''[[Family Law Act]]'', especially where one of the parents isn't Aboriginal.<br /> <br /> 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 party, such as an elder or another family member, who will keep the child in touch with their culture.<br /> <br /> 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 order or agreement which provides for the access requires the other parent to take the child off reserve for access visits.<br /> <br /> ==Child support and spousal support==<br /> <br /> Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying child support and spousal support. <br /> <br /> 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 Guidelines would give a distorted result.<br /> <br /> Under s. 19(1)(b) of the Guidelines, a tax-exempt payor may have their income ''grossed up'' to &lt;span class=&quot;noglossary&quot;&gt;account&lt;/span&gt; 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.<br /> <br /> Think of it like this:<br /> <br /> &lt;blockquote&gt;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 their net income might really be about $30,000.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;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.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;Under the Guidelines, the tax-exempt payor must pay child support at a Guidelines income of what they would earn to have an after-tax income of $40,000, as if taxes were paid on their 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.&lt;/blockquote&gt;<br /> <br /> 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.<br /> <br /> 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 Guidelines, since the Advisory Guidelines use the same approach to calculate income as the Child Support Guidelines.<br /> <br /> ==Family property and family debt==<br /> <br /> Dividing property can be a bit of a problem for Aboriginal spouses when real property on reserve is involved. <br /> <br /> In a nutshell, the ''[http://laws-lois.justice.gc.ca/eng/Const/index.html 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 ownership individuals on reserve lands can have is a Certificate of Possession that gives the owner the right to occupy the land but not the legal title to that land.<br /> <br /> 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:<br /> <br /> &lt;blockquote&gt;&lt;tt&gt;(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&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(a) the treaty first nation is entitled under its final agreement to make laws restricting alienation of its treaty lands,&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(b) a parcel of its treaty lands is at issue, and&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(c) at least one spouse is a treaty first nation member of the treaty first nation.&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> <br /> These are the general rules about family property and the court's authority under the ''[[Family Law Act]]'':<br /> <br /> *'''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.<br /> *'''Real Property:''' Property and structures on reserve lands are ''immovable property''. The court cannot order the transfer 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.<br /> *'''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 &quot;owned&quot; 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.<br /> *'''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 home, but does not apply to family homes located on reserve lands.<br /> '''<br /> <br /> <br /> ''<br /> '''''Family Homes on Reserves and Matrimonial Interests or Rights Act'''''<br /> <br /> ''<br /> <br /> In December 2013, the Federal Government proclaimed a new law, the ''Family Homes on Reserves and Matrimonial Interests or Rights 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. <br /> <br /> 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.<br /> <br /> 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.<br /> <br /> Generally, this law applies to married couples and common-law 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.<br /> <br /> <br /> '''Division of the Value and Interests or Rights to the Family Home'''<br /> <br /> 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.<br /> <br /> 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. <br /> <br /> <br /> '''Emergency Protection Orders'''<br /> <br /> 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.<br /> <br /> <br /> '''<br /> '''Death of a Spouse or Common Law Partner'''<br /> <br /> 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 law partner occurs.<br /> <br /> ==Getting legal help==<br /> <br /> This section is only a &lt;span class=&quot;noglossary&quot;&gt;brief&lt;/span&gt; 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.<br /> <br /> 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 [http://www.clicklaw.bc.ca/helpmap/search?k=aboriginal&amp; www.clicklaw.ca] using the HelpMap feature to find help near to where you are.<br /> <br /> ==Resources and links==<br /> ===Legislation===<br /> <br /> * ''[[Family Law Act]]''<br /> * ''[[Divorce Act]]''<br /> * ''[http://canlii.ca/t/7vhk Indian Act]''<br /> * ''[http://canlii.ca/t/844q Interpretation Act]''<br /> * [http://canlii.ca/t/80mh Child Support Guidelines]<br /> * ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''<br /> *[http://laws-lois.justice.gc.ca/eng/acts/F-1.2 ''Family Homes on Reserves and Matrimonial Interests or Rights Act]''<br /> <br /> ===Documents===<br /> <br /> * [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines]<br /> <br /> ===Links===<br /> <br /> * [http://aboriginal.legalaid.bc.ca/ Legal Services Society Website: Aboriginal section]<br /> * [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Clicklaw Resources on Aboriginal Law]<br /> * [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]<br /> * [http://www2.gov.bc.ca/gov/content/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations-negotiations/first-nations-a-z-listing/maa-nulth-first-nations First Nations of the Maa-Nulth Treaty]<br /> * [http://www2.gov.bc.ca/gov/content/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations-negotiations/first-nations-a-z-listing/tsawwassen-first-nation Tsawwassen First Nation Treaty]<br /> * [http://www.coemrp.ca Centre of Excellence for Matrimonial Real Property]<br /> <br /> <br /> {{REVIEWED | reviewer = [[Rhaea Bailey]], November 29, 2018}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Rhaea Bailey https://wiki.clicklaw.bc.ca/index.php?title=Same_Sex_Relationships_and_Issues_Affecting_Transgender_and_Transsexual_People&diff=34557 2017-03-20T16:47:13Z

<p>Rhaea Bailey: </p> <hr /> <div>{{JPBOFL Start Chapter<br /> | Related = <br /> [[Naming and Changes of Name]]<br /> }}<br /> {{JP Boyd on Family Law TOC|expanded = specific}}{{JPBOFL Editor Badge<br /> |ChapterEditors = [[Todd Bell]] and [[Rhaea Bailey]]<br /> }}<br /> <br /> ==Same-sex relationships==<br /> <br /> Not too long ago, this wiki had an entire chapter about the particular issues affecting those in same-sex relationships. That chapter, however, is no longer necessary. For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist because of legislation has been on the wane. From the [http://canlii.ca/t/5239 Little Sisters decision] on censorship to ''[http://canlii.ca/t/1frkt Egan v. Canada]'', [1995] 2 SCR 513 on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed &lt;span class=&quot;noglossary&quot;&gt;suit&lt;/span&gt;.<br /> <br /> The realm of family law has proven no exception. To quote &lt;!--spelled with lower case on purpose--&gt;barbara findlay QC, a tireless advocate for queer rights, from a speech to the [http://www.cba.org/bc/home/main/ Canadian Bar Association British Columbia] a number of years ago:<br /> <br /> &lt;blockquote&gt;&quot;Gays and lesbians in British Columbia now have exactly the same rights and obligations towards one another as straight people do. Exactly the same. Full stop.&quot;&lt;/blockquote&gt;<br /> <br /> She is entirely correct. As far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of Appeal for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the equality rights of gays and lesbians, and our provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' is one of the few in Canada that permit adoption by same-sex couples. <br /> <br /> Gays and lesbians are just as entitled to pursue claims relating to the care of children, child support, spousal support, and the division of property as straight people are. Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.<br /> <br /> How does family law intersect with gay and lesbian relationships? In every way. There is no relief known to family law of which straight couples can avail themselves that same-sex couples cannot.<br /> <br /> ===Marriage===<br /> <br /> As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', same-sex couples can legally marry throughout Canada. Of course, not everyone can marry, such as close relatives or minors under a certain age. See the [[Marriage &amp; Married Spouses]] section of the [[Family Relationships]] chapter for more information about the capacity to marry, valid marriages and invalid marriages.<br /> <br /> It's not just Canadian couples who can marry. Anyone from anywhere can get married in Canada, as long as they meet the Canadian criteria for a valid marriage. However, while a Canadian marriage is certainly legal in Canada, it may not be recognized as a valid marriage at home. If a couple's home country does not recognize same-sex marriages as valid marriages, the Canadian marriage is unlikely to be valid in that country.<br /> <br /> ===Children===<br /> <br /> Whether the battle over a child is between two parents of the same gender or between parents of opposite genders or families of more than two parents or guardians, the legal test that the parents and the court should consider is the same: what arrangements are in the child's best interests? That's the court's only concern. The courts have been crystal clear that the sexual orientation of the child's parents is only one of many factors to be considered and is often a non-issue. This is what a few judges have had to say:<br /> <br /> ''[http://canlii.ca/t/1f6rk Anger v. Anger]'', 1998 CanLII 4490 (BCSC):<br /> <br /> &lt;blockquote&gt;Mother sought an order that the children live primarily with her. Father opposed application as he found mother's sexual orientation &quot;repugnant on religious and moral grounds.&quot; Court finding father doing everything he could to cut mother out of children's lives, and accepting psychologist's recommendation that children should live with mother. Mother's application allowed. No weight given to mother's sexual orientation.&lt;/blockquote&gt;<br /> <br /> ''Murphy v. Laurence and Rogers'', Ontario Superior Court, 2002:<br /> <br /> &lt;blockquote&gt;Applications by biological mother and mother's lesbian partner for custody and child support. Parties had three year unmarried relationship in which mother remained at home and partner worked outside the home. Both acted as parents to child, and following separation, partner exercised liberal access to child. Child later, by agreement, going to live mostly with partner. Court finding child to have benefited from care of both women, and ordering joint custody with primary residence of child to mother based on blood tie. Negligible access given to father in light of history of disinterest in child. No weight given to mother's sexual orientation.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&quot;The best interests of [the child] are, of course, what will govern any decision relating to custody in this matter. In this fundamental principle, same-sex parents seeking custody are no different than opposite-sex parents seeking custody.&quot;&lt;/blockquote&gt;<br /> <br /> ''[http://canlii.ca/t/1w5d8 Bubis v. Jones]'', 2000 CanLII 22571 (ONSC):<br /> <br /> &lt;blockquote&gt;Application by mother for vary order to obtain custody. Mother in lesbian relationship following separation from father. Court finding father prejudiced against lesbians, that same-sex preference of parent merely one of many factors to be considered, and in light of positive psychologist's report and change in mother's employment and stability, giving custody to mother.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&quot;Homophobia is being replaced by reason and bigotry by tolerance — but not completely, since history tells us that, in matters of this nature, there will always be pockets of prejudice.&quot;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&quot;There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents.&quot;&lt;/blockquote&gt;<br /> <br /> ===Child support===<br /> <br /> Regardless of your sexual orientation or identity, if you qualify as a ''parent'' for the purposes of the ''[[Family Law Act]]'', or the child qualifies as a ''child of the marriage'' for the purposes of the ''[[Divorce Act]]'', child support will be payable by the person who has the child for the least amount of time to the person who has the child for the most amount of time. Child support will be payable in the amount specified under the [[Child Support Guidelines]] unless the parent paying support, the ''payor'', fits into one of a very narrow range of exceptions:<br /> <br /> *payment of support in the usual amount would be too much and cause &quot;undue hardship&quot; (the recipient of support may ask for an increased amount of support if payment of the usual amount would be too little and also cause undue hardship),<br /> *the payor is responsible for the care and control of the child for more than 40% of the child's time,<br /> *the child is 19 or older,<br /> *the payor earns more than $150,000 per year, and payment of the table amount would result in an unfair windfall to the recipient, or<br /> *other persons are also under a legal obligation to care for the child.<br /> <br /> The only one of these exceptions that has any special relevance to same-sex couples is the last: where another person is also under an obligation to support the child. Assuming there is another parent in the picture apart from the other party to the relationship, that the other parent will also be obliged to contribute to the support of the child. In ''Murphy v. Laurence and Rogers'', the biological mother of a child was entitled to receive child support from both her former lesbian partner and the child's father.<br /> <br /> ===Divorce===<br /> <br /> The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders to qualify for a divorce order. Oh happy day.<br /> <br /> ==Issues affecting transgendered and transsexual people==<br /> <br /> To be brutally frank, the jury is still out on how family law impacts on the trans community. Right now, the laws have slipped into a comfortable understanding of &quot;the same or opposite genders&quot; and only accommodates people on the spectrum in between with difficulty. While bisexuality is as close to a non-issue in this context as there can be, transgendered and transsexual people may well encounter difficulty in dealing with family law matters. This discussion offers only a gloss on some of the issues affecting this community. <br /> <br /> If you have a family law problem and your orientation, gender or identity becomes an issue, &lt;span class=&quot;noglossary&quot;&gt;contact&lt;/span&gt; a lawyer known to be sympathetic or activist on the issue, such as barbara findlay or another lawyer she can refer you to.<br /> <br /> ===Marriage===<br /> <br /> As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', gender is irrelevant in determining the ability of a couple to marry.<br /> <br /> ===Children===<br /> <br /> Those who have discovered another self-identity during a relationship may find their new identities hotly at issue in the event that the living arrangements for any children must be decided in court. The problem here is that while shows like Will and Grace, The Birdcage and The L Word have made homosexuality something commonly understood and empathized with, nothing similar has popularized and explained the experience of the trans community. <br /> <br /> It can be very difficult for people, including ex-partners, to understand trans issues, and this problem is especially acute in courtroom discussions about the care and control of children. Often the most important task is to demystify the person's self-identity and explain why his or her self-identity has no impact at all on his or her ability to parent, nor on the expected outcomes for the children.<br /> <br /> On the bright side, the single reported case I was able to find in researching transgendered and transsexual family law issues dealt fairly positively with the subject. (This research is a few years old.) In ''[http://canlii.ca/t/fvzvc Forrester v. Saliba]'', 2000 CanLII 28722 ONCJ, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transitioning to female following the pronouncement of a consent order which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transitioning process. Here are some interesting excerpts from the decision:<br /> <br /> &lt;blockquote&gt;&quot;I indicated at the beginning of the trial to both parties and their counsel that the [father's] transsexuality, in itself, without further evidence, would not constitute a material change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination.&quot;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&quot;The entire focus of this trial has been upon the consequences of the [father's] transgendering, the mental health issues that have arisen as a result of the [father's] transgendering process, and the [mother's] mental health issues. The evidence discloses that throughout all these problems suffered by the parties, the child Christine has remained happy and healthy and continues to enjoy a positive relationship with both parties. ... It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being.&quot;&lt;/blockquote&gt;<br /> <br /> The mother's application was dismissed.<br /> <br /> In a very recent case here in British Columbia ''[http://canlii.org/en/bc/bcsc/doc/2016/2016bcsc744/2016bcsc744 K. (N.) v H.(A.) '', 2016 BCSC 744, the larger dispute centered around the parents’ disagreement over gender transition therapy involving their 11 year old child. The mother supported the transition whereas the father did not. At issue before Justice Skolrood in that proceeding was whether or not the child was entitled to an independent voice in the litigation. The court held that this was appropriate, saying: <br /> <br /> &lt;blockquote&gt;39      I am satisfied that J.K. should be permitted to participate directly in this proceeding. To my mind, this case is different from the many family law cases that come before the courts in which the views of the child are sought on issues relating to guardianship and parenting time, and where those views are typically presented through third party reports.&lt;/blockquote&gt;<br /> <br /> &lt;blockquote&gt;40      I agree with Ms. findlay's characterization that this case is really about J.K. and his role in determining his own future. In my view, these issues cannot be properly considered without J.K.’s direct participation, nor would it be fair to J.K. for the court to attempt to do so.&lt;/blockquote&gt;<br /> <br /> ===Child support===<br /> <br /> Trans issues have no impact at all on the determination of child support. If you are a parent or qualify as a stepparent within the meaning of the applicable legislation, child support will be payable or receivable. End of story.<br /> <br /> ===Spousal support===<br /> <br /> The simple fact of financial dependence, which would ordinarily have to be established to support a claim to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the trans issue, be prepared to face some resistance. The problem will lie in establishing the legitimacy of the financial dependency arising from the trans issue; in other words, the problem will lie in convincing the judge dealing with the matter, if the matter has to go to court, that the issue you are dealing with isn't one of choice or a voluntary financial dependence.<br /> <br /> ===Divorce===<br /> <br /> The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders, whether at the end of their marriage or at its beginning, to qualify for a divorce order.<br /> <br /> ==Resources and links==<br /> <br /> ===Legislation===<br /> <br /> * ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]''<br /> * ''[[Family Law Act]]''<br /> * ''[[Divorce Act]]''<br /> * ''[http://canlii.ca/t/7w02 Civil Marriage Act]''<br /> <br /> ===Links===<br /> <br /> *[http://www.clicklaw.bc.ca/global/search?k=trans Clicklaw resources on trans issues]<br /> <br /> <br /> {{REVIEWED | reviewer = [[Rhaea Bailey]], March 20, 2017}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Rhaea Bailey https://wiki.clicklaw.bc.ca/index.php?title=Same_Sex_Relationships_and_Issues_Affecting_Transgender_and_Transsexual_People&diff=34556 2017-03-20T16:15:26Z

<p>Rhaea Bailey: </p> <hr /> <div>{{JPBOFL Start Chapter<br /> | Related = <br /> [[Naming and Changes of Name]]<br /> }}<br /> {{JP Boyd on Family Law TOC|expanded = specific}}{{JPBOFL Editor Badge<br /> |ChapterEditors = [[Gayle Raphanel]] and [[Rhaea Bailey]]<br /> }}<br /> <br /> ==Same-sex relationships==<br /> <br /> Not too long ago, this wiki had an entire chapter about the particular issues affecting those in same-sex relationships. That chapter, however, is no longer necessary. For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist because of legislation has been on the wane. From the [http://canlii.ca/t/5239 Little Sisters decision] on censorship to ''[http://canlii.ca/t/1frkt Egan v. Canada]'', [1995] 2 SCR 513 on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed &lt;span class=&quot;noglossary&quot;&gt;suit&lt;/span&gt;.<br /> <br /> The realm of family law has proven no exception. To quote &lt;!--spelled with lower case on purpose--&gt;barbara findlay QC, a tireless advocate for queer rights, from a speech to the [http://www.cba.org/bc/home/main/ Canadian Bar Association British Columbia] a number of years ago:<br /> <br /> &lt;blockquote&gt;&quot;Gays and lesbians in British Columbia now have exactly the same rights and obligations towards one another as straight people do. Exactly the same. Full stop.&quot;&lt;/blockquote&gt;<br /> <br /> She is entirely correct. As far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of Appeal for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the equality rights of gays and lesbians, and our provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' is one of the few in Canada that permit adoption by same-sex couples. <br /> <br /> Gays and lesbians are just as entitled to pursue claims relating to the care of children, child support, spousal support, and the division of property as straight people are. Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.<br /> <br /> How does family law intersect with gay and lesbian relationships? In every way. There is no relief known to family law of which straight couples can avail themselves that same-sex couples cannot.<br /> <br /> ===Marriage===<br /> <br /> As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', same-sex couples can legally marry throughout Canada. Of course, not everyone can marry, such as close relatives or minors under a certain age. See the [[Marriage &amp; Married Spouses]] section of the [[Family Relationships]] chapter for more information about the capacity to marry, valid marriages and invalid marriages.<br /> <br /> It's not just Canadian couples who can marry. Anyone from anywhere can get married in Canada, as long as they meet the Canadian criteria for a valid marriage. However, while a Canadian marriage is certainly legal in Canada, it may not be recognized as a valid marriage at home. If a couple's home country does not recognize same-sex marriages as valid marriages, the Canadian marriage is unlikely to be valid in that country.<br /> <br /> ===Children===<br /> <br /> Whether the battle over a child is between two parents of the same gender or between parents of opposite genders or families of more than two parents or guardians, the legal test that the parents and the court should consider is the same: what arrangements are in the child's best interests? That's the court's only concern. The courts have been crystal clear that the sexual orientation of the child's parents is only one of many factors to be considered and is often a non-issue. This is what a few judges have had to say:<br /> <br /> ''[http://canlii.ca/t/1f6rk Anger v. Anger]'', 1998 CanLII 4490 (BCSC):<br /> <br /> &lt;blockquote&gt;Mother sought an order that the children live primarily with her. Father opposed application as he found mother's sexual orientation &quot;repugnant on religious and moral grounds.&quot; Court finding father doing everything he could to cut mother out of children's lives, and accepting psychologist's recommendation that children should live with mother. Mother's application allowed. No weight given to mother's sexual orientation.&lt;/blockquote&gt;<br /> <br /> ''Murphy v. Laurence and Rogers'', Ontario Superior Court, 2002:<br /> <br /> &lt;blockquote&gt;Applications by biological mother and mother's lesbian partner for custody and child support. Parties had three year unmarried relationship in which mother remained at home and partner worked outside the home. Both acted as parents to child, and following separation, partner exercised liberal access to child. Child later, by agreement, going to live mostly with partner. Court finding child to have benefited from care of both women, and ordering joint custody with primary residence of child to mother based on blood tie. Negligible access given to father in light of history of disinterest in child. No weight given to mother's sexual orientation.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&quot;The best interests of [the child] are, of course, what will govern any decision relating to custody in this matter. In this fundamental principle, same-sex parents seeking custody are no different than opposite-sex parents seeking custody.&quot;&lt;/blockquote&gt;<br /> <br /> ''[http://canlii.ca/t/1w5d8 Bubis v. Jones]'', 2000 CanLII 22571 (ONSC):<br /> <br /> &lt;blockquote&gt;Application by mother for vary order to obtain custody. Mother in lesbian relationship following separation from father. Court finding father prejudiced against lesbians, that same-sex preference of parent merely one of many factors to be considered, and in light of positive psychologist's report and change in mother's employment and stability, giving custody to mother.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&quot;Homophobia is being replaced by reason and bigotry by tolerance — but not completely, since history tells us that, in matters of this nature, there will always be pockets of prejudice.&quot;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&quot;There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents.&quot;&lt;/blockquote&gt;<br /> <br /> ===Child support===<br /> <br /> Regardless of your sexual orientation or identity, if you qualify as a ''parent'' for the purposes of the ''[[Family Law Act]]'', or the child qualifies as a ''child of the marriage'' for the purposes of the ''[[Divorce Act]]'', child support will be payable by the person who has the child for the least amount of time to the person who has the child for the most amount of time. Child support will be payable in the amount specified under the [[Child Support Guidelines]] unless the parent paying support, the ''payor'', fits into one of a very narrow range of exceptions:<br /> <br /> *payment of support in the usual amount would be too much and cause &quot;undue hardship&quot; (the recipient of support may ask for an increased amount of support if payment of the usual amount would be too little and also cause undue hardship),<br /> *the payor is responsible for the care and control of the child for more than 40% of the child's time,<br /> *the child is 19 or older,<br /> *the payor earns more than $150,000 per year, and payment of the table amount would result in an unfair windfall to the recipient, or<br /> *other persons are also under a legal obligation to care for the child.<br /> <br /> The only one of these exceptions that has any special relevance to same-sex couples is the last: where another person is also under an obligation to support the child. Assuming there is another parent in the picture apart from the other party to the relationship, that the other parent will also be obliged to contribute to the support of the child. In ''Murphy v. Laurence and Rogers'', the biological mother of a child was entitled to receive child support from both her former lesbian partner and the child's father.<br /> <br /> ===Divorce===<br /> <br /> The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders to qualify for a divorce order. Oh happy day.<br /> <br /> ==Issues affecting transgendered and transsexual people==<br /> <br /> To be brutally frank, the jury is still out on how family law impacts on the trans community. Right now, the laws have slipped into a comfortable understanding of &quot;the same or opposite genders&quot; and only accommodates people on the spectrum in between with difficulty. While bisexuality is as close to a non-issue in this context as there can be, transgendered and transsexual people may well encounter difficulty in dealing with family law matters. This discussion offers only a gloss on some of the issues affecting this community. <br /> <br /> If you have a family law problem and your orientation, gender or identity becomes an issue, &lt;span class=&quot;noglossary&quot;&gt;contact&lt;/span&gt; a lawyer known to be sympathetic or activist on the issue, such as barbara findlay or another lawyer she can refer you to.<br /> <br /> ===Marriage===<br /> <br /> As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', gender is irrelevant in determining the ability of a couple to marry.<br /> <br /> ===Children===<br /> <br /> Those who have discovered another self-identity during a relationship may find their new identities hotly at issue in the event that the living arrangements for any children must be decided in court. The problem here is that while shows like Will and Grace, The Birdcage and The L Word have made homosexuality something commonly understood and empathized with, nothing similar has popularized and explained the experience of the trans community. <br /> <br /> It can be very difficult for people, including ex-partners, to understand trans issues, and this problem is especially acute in courtroom discussions about the care and control of children. Often the most important task is to demystify the person's self-identity and explain why his or her self-identity has no impact at all on his or her ability to parent, nor on the expected outcomes for the children.<br /> <br /> On the bright side, the single reported case I was able to find in researching transgendered and transsexual family law issues dealt fairly positively with the subject. (This research is a few years old.) In ''[http://canlii.ca/t/fvzvc Forrester v. Saliba]'', 2000 CanLII 28722 ONCJ, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transitioning to female following the pronouncement of a consent order which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transitioning process. Here are some interesting excerpts from the decision:<br /> <br /> &lt;blockquote&gt;&quot;I indicated at the beginning of the trial to both parties and their counsel that the [father's] transsexuality, in itself, without further evidence, would not constitute a material change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination.&quot;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&quot;The entire focus of this trial has been upon the consequences of the [father's] transgendering, the mental health issues that have arisen as a result of the [father's] transgendering process, and the [mother's] mental health issues. The evidence discloses that throughout all these problems suffered by the parties, the child Christine has remained happy and healthy and continues to enjoy a positive relationship with both parties. ... It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being.&quot;&lt;/blockquote&gt;<br /> <br /> The mother's application was dismissed.<br /> <br /> In a very recent case here in British Columbia ''[http://canlii.org/en/bc/bcsc/doc/2016/2016bcsc744/2016bcsc744] K. (N.) v H.(A.) '', 2016 BCSC 744, the larger dispute centered around the parents’ disagreement over gender transition therapy involving their 11 year old child. The mother supported the transition whereas the father did not. At issue before Justice Skolrood in that proceeding was whether or not the child was entitled to an independent voice in the litigation. The court held that this was appropriate, saying: <br /> <br /> &lt;blockquote&gt; 39      I am satisfied that J.K. should be permitted to participate directly in this proceeding. To my mind, this case is different from the many family law cases that come before the courts in which the views of the child are sought on issues relating to guardianship and parenting time, and where those views are typically presented through third party reports.<br /> <br /> &lt;blockquote&gt;40      I agree with Ms. findlay's characterization that this case is really about J.K. and his role in determining his own future. In my view, these issues cannot be properly considered without J.K.’s direct participation, nor would it be fair to J.K. for the court to attempt to do so.<br /> <br /> ===Child support===<br /> <br /> Trans issues have no impact at all on the determination of child support. If you are a parent or qualify as a stepparent within the meaning of the applicable legislation, child support will be payable or receivable. End of story.<br /> <br /> ===Spousal support===<br /> <br /> The simple fact of financial dependence, which would ordinarily have to be established to support a claim to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the trans issue, be prepared to face some resistance. The problem will lie in establishing the legitimacy of the financial dependency arising from the trans issue; in other words, the problem will lie in convincing the judge dealing with the matter, if the matter has to go to court, that the issue you are dealing with isn't one of choice or a voluntary financial dependence.<br /> <br /> ===Divorce===<br /> <br /> The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders, whether at the end of their marriage or at its beginning, to qualify for a divorce order.<br /> <br /> ==Resources and links==<br /> <br /> ===Legislation===<br /> <br /> * ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]''<br /> * ''[[Family Law Act]]''<br /> * ''[[Divorce Act]]''<br /> * ''[http://canlii.ca/t/7w02 Civil Marriage Act]''<br /> <br /> ===Links===<br /> <br /> *[http://www.clicklaw.bc.ca/global/search?k=trans Clicklaw resources on trans issues]<br /> <br /> <br /> {{REVIEWED | reviewer = [[Gayle Raphanel]], July 8, 2014}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Rhaea Bailey https://wiki.clicklaw.bc.ca/index.php?title=Indigenous_Families&diff=32714 2016-12-02T20:04:48Z

<p>Rhaea Bailey: </p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = specific}}{{JPBOFL Editor Badge<br /> |ChapterEditors = [[Arlene Henry | Arlene Henry, QC]] and [[Rhaea Bailey]]<br /> }}<br /> {{Clicklawbadge<br /> |resourcetype = many resources on<br /> |link = [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Aboriginal law topics]<br /> }}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 ''[http://canlii.ca/t/7vhk Indian Act]''. This section addresses these issues briefly. However, for more complete information I strongly encourage you to consult with a family law lawyer who has expertise in Aboriginal legal issues.<br /> <br /> 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 support payments, and dividing family property and family debt.<br /> <br /> ==The care of children==<br /> <br /> 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 child's ancestry comes from one parent 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.<br /> <br /> ===Custody under the ''Divorce Act''===<br /> <br /> In addition to the usual factors governing an award of child custody under s. 16 of the ''[[Divorce Act]]'', the court must also take into consideration a child's Aboriginal heritage when making a decision about custody. This is not expressly set out anywhere in the legislation, but past cases have decided that a child's Aboriginal heritage should be considered as part of the general &quot;best interests of the child&quot; test.<br /> <br /> This principle was established in British Columbia by ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761, a decision of the Supreme Court of Canada. In its decision, the court said that:<br /> <br /> &lt;blockquote&gt;&quot;... the trial judge 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 ...&quot;&lt;/blockquote&gt;<br /> <br /> In another case, ''[http://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60, the Supreme Court of Canada commented that:<br /> <br /> &lt;blockquote&gt;&quot;... 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 evidence.&quot;&lt;/blockquote&gt;<br /> <br /> ===Guardianship under the ''Family Law Act''===<br /> <br /> 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 ''[http://canlii.ca/t/7vhk 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.<br /> <br /> Where there is an application for guardianship of a treaty First Nation child in a family law court proceeding, under ss. 208 and 209 of the ''[[Family Law Act]]'':<br /> <br /> #the First Nation government must be served with notice of the application,<br /> #the First Nation government has standing in the court proceeding, and<br /> #the court must consider the laws and customs of the First Nation in making its decision.<br /> <br /> Section 208 applies to Nis&lt;u&gt;g&lt;/u&gt;a'a children; s. 209 deals with other treaty First Nation children and says this:<br /> <br /> &lt;blockquote&gt;&lt;tt&gt;(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&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(a) must be served with notice of the proceeding, and&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(b) has standing in the proceeding.&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> <br /> Under s. 29.1 of the provincial ''[http://canlii.ca/t/844q Interpretation Act]'', the present treaty First Nations are the Tsawwassen First Nation and the Maa-nulth First Nations.<br /> <br /> 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 guardian's will or a Form 2 Appointment under the [http://canlii.ca/t/8rdx Family Law Act Regulation].<br /> <br /> ===Access, parenting time and contact===<br /> <br /> 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 access, as well as parenting time and contact under the ''[[Family Law Act]]'', especially where one of the parents isn't Aboriginal.<br /> <br /> 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 party, such as an elder or another family member, who will keep the child in touch with his or her culture.<br /> <br /> 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 order or agreement which provides for the access requires the other parent to take the child off reserve for access visits.<br /> <br /> ==Child support and spousal support==<br /> <br /> Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying child support and spousal support. <br /> <br /> There is, however, one significant additional issue about the calculation of income for the purposes of support calculations. Aboriginal people who qualify as &quot;status Indians&quot; 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 Guidelines would give a distorted result.<br /> <br /> Under s. 19(1)(b) of the Guidelines, a tax-exempt payor may have his or her income ''grossed up'' to &lt;span class=&quot;noglossary&quot;&gt;account&lt;/span&gt; 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.<br /> <br /> Think of it like this:<br /> <br /> &lt;blockquote&gt;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 income might really be about $30,000.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;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.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;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.&lt;/blockquote&gt;<br /> <br /> 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.<br /> <br /> 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 Guidelines, since the Advisory Guidelines use the same approach to calculate income as the Child Support Guidelines.<br /> <br /> ==Family property and family debt==<br /> <br /> Dividing property can be a bit of a problem for Aboriginal spouses when real property on reserve is involved. <br /> <br /> In a nutshell, the ''[http://laws-lois.justice.gc.ca/eng/Const/index.html 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 ownership individuals on reserve lands can have is a Certificate of Possession that gives the owner the right to occupy the land but not the legal title to that land.<br /> <br /> 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:<br /> <br /> &lt;blockquote&gt;&lt;tt&gt;(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&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(a) the treaty first nation is entitled under its final agreement to make laws restricting alienation of its treaty lands,&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(b) a parcel of its treaty lands is at issue, and&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(c) at least one spouse is a treaty first nation member of the treaty first nation.&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> <br /> These are the general rules about family property and the court's authority under the ''[[Family Law Act]]'':<br /> <br /> *'''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.<br /> *'''Real Property:''' Property and structures on reserve lands are ''immovable property''. The court cannot order the transfer 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.<br /> *'''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 &quot;owned&quot; 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.<br /> *'''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 home, but does not apply to family homes located on reserve lands.<br /> '''<br /> <br /> <br /> ''<br /> '''''Family Homes on Reserves and Matrimonial Interests or Rights Act'''''<br /> <br /> ''<br /> <br /> 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. <br /> <br /> 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.<br /> <br /> 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.<br /> <br /> Generally, this law applies to married couples and common-law 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.<br /> <br /> <br /> '''Division of the Value and Interests or Rights to the Family Home'''<br /> <br /> 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.<br /> <br /> 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. <br /> <br /> <br /> '''Emergency Protection Orders'''<br /> <br /> 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.<br /> <br /> <br /> '''<br /> '''Death of a Spouse or Common Law Partner'''<br /> <br /> 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 law partner occurs.<br /> <br /> ==Getting legal help==<br /> <br /> This section is only a &lt;span class=&quot;noglossary&quot;&gt;brief&lt;/span&gt; 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.<br /> <br /> 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 [http://www.clicklaw.bc.ca/helpmap/search?k=aboriginal&amp; www.clicklaw.ca] using the HelpMap feature to find help near to where you are.<br /> <br /> ==Resources and links==<br /> ===Legislation===<br /> <br /> * ''[[Family Law Act]]''<br /> * ''[[Divorce Act]]''<br /> * ''[http://canlii.ca/t/7vhk Indian Act]''<br /> * ''[http://canlii.ca/t/844q Interpretation Act]''<br /> * [http://canlii.ca/t/80mh Child Support Guidelines]<br /> * ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''<br /> *[http://laws-lois.justice.gc.ca/eng/acts/F-1.2 ''Family Homes on Reserves and Matrimonial Interests or Rights Act]''<br /> <br /> ===Documents===<br /> <br /> * [http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/g-ld/spag/index.html Spousal Support Advisory Guidelines]<br /> <br /> ===Links===<br /> <br /> * [http://www.lss.bc.ca/aboriginal/ Legal Services Society Website: Aboriginal section]<br /> * [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Clicklaw Resources on Aboriginal Law]<br /> * [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]<br /> * [http://www.treaties.gov.bc.ca/treaties_maa-nulth.html First Nations of the Maa-Nulth Treaty]<br /> * [http://www.treaties.gov.bc.ca/treaties_tsawwassen.html Tsawwassen First Nation Treaty]<br /> * [http://www.coemrp.ca Centre of Excellence for Matrimonial Real Property]<br /> <br /> <br /> {{REVIEWED | reviewer = [[Rhaea Bailey]], December 2, 2016}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Rhaea Bailey https://wiki.clicklaw.bc.ca/index.php?title=Indigenous_Families&diff=32706 2016-12-01T19:55:53Z

<p>Rhaea Bailey: </p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = specific}}{{JPBOFL Editor Badge<br /> |ChapterEditors = [[Arlene Henry | Arlene Henry, QC]] and [[Rhaea Bailey]]<br /> }}<br /> {{Clicklawbadge<br /> |resourcetype = many resources on<br /> |link = [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Aboriginal law topics]<br /> }}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 ''[http://canlii.ca/t/7vhk Indian Act]''. This section addresses these issues briefly. However, for more complete information I strongly encourage you to consult with a family law lawyer who has expertise in Aboriginal legal issues.<br /> <br /> 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 support payments, and dividing family property and family debt.<br /> <br /> ==The care of children==<br /> <br /> 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 child's ancestry comes from one parent 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.<br /> <br /> ===Custody under the ''Divorce Act''===<br /> <br /> In addition to the usual factors governing an award of child custody under s. 16 of the ''[[Divorce Act]]'', the court must also take into consideration a child's Aboriginal heritage when making a decision about custody. This is not expressly set out anywhere in the legislation, but past cases have decided that a child's Aboriginal heritage should be considered as part of the general &quot;best interests of the child&quot; test.<br /> <br /> This principle was established in British Columbia by ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761, a decision of the Supreme Court of Canada. In its decision, the court said that:<br /> <br /> &lt;blockquote&gt;&quot;... the trial judge 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 ...&quot;&lt;/blockquote&gt;<br /> <br /> In another case, ''[http://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60, the Supreme Court of Canada commented that:<br /> <br /> &lt;blockquote&gt;&quot;... 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 evidence.&quot;&lt;/blockquote&gt;<br /> <br /> ===Guardianship under the ''Family Law Act''===<br /> <br /> 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 ''[http://canlii.ca/t/7vhk 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.<br /> <br /> Where there is an application for guardianship of a treaty First Nation child in a family law court proceeding, under ss. 208 and 209 of the ''[[Family Law Act]]'':<br /> <br /> #the First Nation government must be served with notice of the application,<br /> #the First Nation government has standing in the court proceeding, and<br /> #the court must consider the laws and customs of the First Nation in making its decision.<br /> <br /> Section 208 applies to Nis&lt;u&gt;g&lt;/u&gt;a'a children; s. 209 deals with other treaty First Nation children and says this:<br /> <br /> &lt;blockquote&gt;&lt;tt&gt;(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&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(a) must be served with notice of the proceeding, and&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(b) has standing in the proceeding.&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> <br /> Under s. 29.1 of the provincial ''[http://canlii.ca/t/844q Interpretation Act]'', the present treaty First Nations are the Tsawwassen First Nation and the Maa-nulth First Nations.<br /> <br /> 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 guardian's will or a Form 2 Appointment under the [http://canlii.ca/t/8rdx Family Law Act Regulation].<br /> <br /> ===Access, parenting time and contact===<br /> <br /> 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 access, as well as parenting time and contact under the ''[[Family Law Act]]'', especially where one of the parents isn't Aboriginal.<br /> <br /> 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 party, such as an elder or another family member, who will keep the child in touch with his or her culture.<br /> <br /> 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 order or agreement which provides for the access requires the other parent to take the child off reserve for access visits.<br /> <br /> ==Child support and spousal support==<br /> <br /> Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying child support and spousal support. <br /> <br /> There is, however, one significant additional issue about the calculation of income for the purposes of support calculations. Aboriginal people who qualify as &quot;status Indians&quot; 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 Guidelines would give a distorted result.<br /> <br /> Under s. 19(1)(b) of the Guidelines, a tax-exempt payor may have his or her income ''grossed up'' to &lt;span class=&quot;noglossary&quot;&gt;account&lt;/span&gt; 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.<br /> <br /> Think of it like this:<br /> <br /> &lt;blockquote&gt;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 income might really be about $30,000.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;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.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;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.&lt;/blockquote&gt;<br /> <br /> 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.<br /> <br /> 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 Guidelines, since the Advisory Guidelines use the same approach to calculate income as the Child Support Guidelines.<br /> <br /> ==Family property and family debt==<br /> <br /> Dividing property can be a bit of a problem for Aboriginal spouses when real property on reserve is involved. <br /> <br /> In a nutshell, the ''[http://laws-lois.justice.gc.ca/eng/Const/index.html 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 ownership individuals on reserve lands can have is a Certificate of Possession that gives the owner the right to occupy the land but not the legal title to that land.<br /> <br /> 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:<br /> <br /> &lt;blockquote&gt;&lt;tt&gt;(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&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(a) the treaty first nation is entitled under its final agreement to make laws restricting alienation of its treaty lands,&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(b) a parcel of its treaty lands is at issue, and&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(c) at least one spouse is a treaty first nation member of the treaty first nation.&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> <br /> These are the general rules about family property and the court's authority under the ''[[Family Law Act]]'':<br /> <br /> *'''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.<br /> *'''Real Property:''' Property and structures on reserve lands are ''immovable property''. The court cannot order the transfer 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.<br /> *'''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 &quot;owned&quot; 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.<br /> *'''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 home, but does not apply to family homes located on reserve lands.<br /> '''<br /> <br /> <br /> ''<br /> '''''Family Homes on Reserves and Matrimonial Interests or Rights Act'''''<br /> <br /> ''<br /> <br /> 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. <br /> <br /> 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.<br /> <br /> 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.<br /> <br /> Generally, this law applies to married couples and common-law 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.<br /> <br /> <br /> '''Division of the Value and Interests or Rights to the Family Home'''<br /> <br /> 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.<br /> <br /> 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. <br /> <br /> <br /> '''Emergency Protection Orders'''<br /> <br /> 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.<br /> <br /> <br /> '''<br /> '''Death of a Spouse or Common Law Partner'''<br /> <br /> 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 law partner occurs.<br /> <br /> ==Getting legal help==<br /> <br /> This section is only a &lt;span class=&quot;noglossary&quot;&gt;brief&lt;/span&gt; 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.<br /> <br /> 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 [http://www.clicklaw.bc.ca/helpmap/search?k=aboriginal&amp; www.clicklaw.ca] using the HelpMap feature to find help near to where you are.<br /> <br /> ==Resources and links==<br /> ===Legislation===<br /> <br /> * ''[[Family Law Act]]''<br /> * ''[[Divorce Act]]''<br /> * ''[http://canlii.ca/t/7vhk Indian Act]''<br /> * ''[http://canlii.ca/t/844q Interpretation Act]''<br /> * [http://canlii.ca/t/80mh Child Support Guidelines]<br /> * ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''<br /> *[http://laws-lois.justice.gc.ca/eng/acts/F-1.2 ''Family Homes on Reserves and Matrimonial Interests or Rights Act]''<br /> <br /> ===Documents===<br /> <br /> * [http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/g-ld/spag/index.html Spousal Support Advisory Guidelines]<br /> <br /> ===Links===<br /> <br /> * [http://www.lss.bc.ca/aboriginal/ Legal Services Society Website: Aboriginal section]<br /> * [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Clicklaw Resources on Aboriginal Law]<br /> * [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]<br /> * [http://www.treaties.gov.bc.ca/treaties_maa-nulth.html First Nations of the Maa-Nulth Treaty]<br /> * [http://www.treaties.gov.bc.ca/treaties_tsawwassen.html Tsawwassen First Nation Treaty]<br /> * [http://www.coemrp.ca Centre of Excellence for Matrimonial Real Property]<br /> <br /> <br /> {{REVIEWED | reviewer = [[Rhaea Bailey]], January 6, 2014}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Rhaea Bailey https://wiki.clicklaw.bc.ca/index.php?title=Indigenous_Families&diff=32705 2016-12-01T19:47:44Z

<p>Rhaea Bailey: /* Links */</p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = specific}}{{JPBOFL Editor Badge<br /> |ChapterEditors = [[Arlene Henry | Arlene Henry, QC]] and [[Rhaea Bailey]]<br /> }}<br /> {{Clicklawbadge<br /> |resourcetype = many resources on<br /> |link = [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Aboriginal law topics]<br /> }}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 ''[http://canlii.ca/t/7vhk Indian Act]''. This section addresses these issues briefly. However, for more complete information I strongly encourage you to consult with a family law lawyer who has expertise in Aboriginal legal issues.<br /> <br /> 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 support payments, and dividing family property and family debt.<br /> <br /> ==The care of children==<br /> <br /> 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 child's ancestry comes from one parent 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.<br /> <br /> ===Custody under the ''Divorce Act''===<br /> <br /> In addition to the usual factors governing an award of child custody under s. 16 of the ''[[Divorce Act]]'', the court must also take into consideration a child's Aboriginal heritage when making a decision about custody. This is not expressly set out anywhere in the legislation, but past cases have decided that a child's Aboriginal heritage should be considered as part of the general &quot;best interests of the child&quot; test.<br /> <br /> This principle was established in British Columbia by ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761, a decision of the Supreme Court of Canada. In its decision, the court said that:<br /> <br /> &lt;blockquote&gt;&quot;... the trial judge 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 ...&quot;&lt;/blockquote&gt;<br /> <br /> In another case, ''[http://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60, the Supreme Court of Canada commented that:<br /> <br /> &lt;blockquote&gt;&quot;... 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 evidence.&quot;&lt;/blockquote&gt;<br /> <br /> ===Guardianship under the ''Family Law Act''===<br /> <br /> 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 ''[http://canlii.ca/t/7vhk 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.<br /> <br /> Where there is an application for guardianship of a treaty First Nation child in a family law court proceeding, under ss. 208 and 209 of the ''[[Family Law Act]]'':<br /> <br /> #the First Nation government must be served with notice of the application,<br /> #the First Nation government has standing in the court proceeding, and<br /> #the court must consider the laws and customs of the First Nation in making its decision.<br /> <br /> Section 208 applies to Nis&lt;u&gt;g&lt;/u&gt;a'a children; s. 209 deals with other treaty First Nation children and says this:<br /> <br /> &lt;blockquote&gt;&lt;tt&gt;(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&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(a) must be served with notice of the proceeding, and&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(b) has standing in the proceeding.&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> <br /> Under s. 29.1 of the provincial ''[http://canlii.ca/t/844q Interpretation Act]'', the present treaty First Nations are the Tsawwassen First Nation and the Maa-nulth First Nations.<br /> <br /> 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 guardian's will or a Form 2 Appointment under the [http://canlii.ca/t/8rdx Family Law Act Regulation].<br /> <br /> ===Access, parenting time and contact===<br /> <br /> 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 access, as well as parenting time and contact under the ''[[Family Law Act]]'', especially where one of the parents isn't Aboriginal.<br /> <br /> 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 party, such as an elder or another family member, who will keep the child in touch with his or her culture.<br /> <br /> 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 order or agreement which provides for the access requires the other parent to take the child off reserve for access visits.<br /> <br /> ==Child support and spousal support==<br /> <br /> Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying child support and spousal support. <br /> <br /> There is, however, one significant additional issue about the calculation of income for the purposes of support calculations. Aboriginal people who qualify as &quot;status Indians&quot; 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 Guidelines would give a distorted result.<br /> <br /> Under s. 19(1)(b) of the Guidelines, a tax-exempt payor may have his or her income ''grossed up'' to &lt;span class=&quot;noglossary&quot;&gt;account&lt;/span&gt; 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.<br /> <br /> Think of it like this:<br /> <br /> &lt;blockquote&gt;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 income might really be about $30,000.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;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.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;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.&lt;/blockquote&gt;<br /> <br /> 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.<br /> <br /> 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 Guidelines, since the Advisory Guidelines use the same approach to calculate income as the Child Support Guidelines.<br /> <br /> ==Family property and family debt==<br /> <br /> Dividing property can be a bit of a problem for Aboriginal spouses when real property on reserve is involved. <br /> <br /> In a nutshell, the ''[http://laws-lois.justice.gc.ca/eng/Const/index.html 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 ownership individuals on reserve lands can have is a Certificate of Possession that gives the owner the right to occupy the land but not the legal title to that land.<br /> <br /> 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:<br /> <br /> &lt;blockquote&gt;&lt;tt&gt;(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&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(a) the treaty first nation is entitled under its final agreement to make laws restricting alienation of its treaty lands,&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(b) a parcel of its treaty lands is at issue, and&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(c) at least one spouse is a treaty first nation member of the treaty first nation.&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> <br /> These are the general rules about family property and the court's authority under the ''[[Family Law Act]]'':<br /> <br /> *'''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.<br /> *'''Real Property:''' Property and structures on reserve lands are ''immovable property''. The court cannot order the transfer 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.<br /> *'''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 &quot;owned&quot; 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.<br /> *'''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 home, but does not apply to family homes located on reserve lands.<br /> '''<br /> <br /> <br /> ''<br /> '''''Family Homes on Reserves and Matrimonial Interests or Rights Act'''''<br /> <br /> ''<br /> <br /> 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. <br /> <br /> 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.<br /> <br /> 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.<br /> <br /> Generally, this law applies to married couples and common-law 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.<br /> <br /> <br /> '''Division of the Value and Interests or Rights to the Family Home'''<br /> <br /> 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.<br /> <br /> 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. <br /> <br /> <br /> '''Emergency Protection Orders'''<br /> <br /> 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.<br /> <br /> <br /> '''<br /> '''Death of a Spouse or Common Law Partner'''<br /> <br /> 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 law partner occurs.<br /> <br /> ==Getting legal help==<br /> <br /> This section is only a &lt;span class=&quot;noglossary&quot;&gt;brief&lt;/span&gt; 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.<br /> <br /> 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 [http://www.clicklaw.bc.ca/helpmap/search?k=aboriginal&amp; www.clicklaw.ca] using the HelpMap feature to find help near to where you are.<br /> <br /> ==Resources and links==<br /> ===Legislation===<br /> <br /> * ''[[Family Law Act]]''<br /> * ''[[Divorce Act]]''<br /> * ''[http://canlii.ca/t/7vhk Indian Act]''<br /> * ''[http://canlii.ca/t/844q Interpretation Act]''<br /> * [http://canlii.ca/t/80mh Child Support Guidelines]<br /> * ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''<br /> *[http://laws-lois.justice.gc.ca/eng/acts/F-1.2 ''Family Homes on Reserves and Matrimonial Interests or Rights Act]''<br /> <br /> ===Documents===<br /> <br /> * [http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/g-ld/spag/index.html Spousal Support Advisory Guidelines]<br /> <br /> ===Links===<br /> <br /> * [http://www.lss.bc.ca/aboriginal/ Legal Services Society Website: Aboriginal section]<br /> * [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Clicklaw Resources on Aboriginal Law]<br /> * [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]<br /> * [http://www.treaties.gov.bc.ca/treaties_maa-nulth.html First Nations of the Maa-Nulth Treaty]<br /> * [http://www.treaties.gov.bc.ca/treaties_tsawwassen.html Tsawwassen First Nation Treaty]<br /> * [http://www.coemrp.ca Centre of Excellence for Matrimonial Real Property]<br /> <br /> <br /> {{REVIEWED | reviewer = [[Rhaea Bailey]], January 6, 2014}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Rhaea Bailey https://wiki.clicklaw.bc.ca/index.php?title=Indigenous_Families&diff=32704 2016-12-01T19:45:16Z

<p>Rhaea Bailey: /* Legislation */</p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = specific}}{{JPBOFL Editor Badge<br /> |ChapterEditors = [[Arlene Henry | Arlene Henry, QC]] and [[Rhaea Bailey]]<br /> }}<br /> {{Clicklawbadge<br /> |resourcetype = many resources on<br /> |link = [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Aboriginal law topics]<br /> }}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 ''[http://canlii.ca/t/7vhk Indian Act]''. This section addresses these issues briefly. However, for more complete information I strongly encourage you to consult with a family law lawyer who has expertise in Aboriginal legal issues.<br /> <br /> 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 support payments, and dividing family property and family debt.<br /> <br /> ==The care of children==<br /> <br /> 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 child's ancestry comes from one parent 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.<br /> <br /> ===Custody under the ''Divorce Act''===<br /> <br /> In addition to the usual factors governing an award of child custody under s. 16 of the ''[[Divorce Act]]'', the court must also take into consideration a child's Aboriginal heritage when making a decision about custody. This is not expressly set out anywhere in the legislation, but past cases have decided that a child's Aboriginal heritage should be considered as part of the general &quot;best interests of the child&quot; test.<br /> <br /> This principle was established in British Columbia by ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761, a decision of the Supreme Court of Canada. In its decision, the court said that:<br /> <br /> &lt;blockquote&gt;&quot;... the trial judge 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 ...&quot;&lt;/blockquote&gt;<br /> <br /> In another case, ''[http://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60, the Supreme Court of Canada commented that:<br /> <br /> &lt;blockquote&gt;&quot;... 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 evidence.&quot;&lt;/blockquote&gt;<br /> <br /> ===Guardianship under the ''Family Law Act''===<br /> <br /> 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 ''[http://canlii.ca/t/7vhk 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.<br /> <br /> Where there is an application for guardianship of a treaty First Nation child in a family law court proceeding, under ss. 208 and 209 of the ''[[Family Law Act]]'':<br /> <br /> #the First Nation government must be served with notice of the application,<br /> #the First Nation government has standing in the court proceeding, and<br /> #the court must consider the laws and customs of the First Nation in making its decision.<br /> <br /> Section 208 applies to Nis&lt;u&gt;g&lt;/u&gt;a'a children; s. 209 deals with other treaty First Nation children and says this:<br /> <br /> &lt;blockquote&gt;&lt;tt&gt;(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&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(a) must be served with notice of the proceeding, and&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(b) has standing in the proceeding.&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> <br /> Under s. 29.1 of the provincial ''[http://canlii.ca/t/844q Interpretation Act]'', the present treaty First Nations are the Tsawwassen First Nation and the Maa-nulth First Nations.<br /> <br /> 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 guardian's will or a Form 2 Appointment under the [http://canlii.ca/t/8rdx Family Law Act Regulation].<br /> <br /> ===Access, parenting time and contact===<br /> <br /> 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 access, as well as parenting time and contact under the ''[[Family Law Act]]'', especially where one of the parents isn't Aboriginal.<br /> <br /> 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 party, such as an elder or another family member, who will keep the child in touch with his or her culture.<br /> <br /> 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 order or agreement which provides for the access requires the other parent to take the child off reserve for access visits.<br /> <br /> ==Child support and spousal support==<br /> <br /> Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying child support and spousal support. <br /> <br /> There is, however, one significant additional issue about the calculation of income for the purposes of support calculations. Aboriginal people who qualify as &quot;status Indians&quot; 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 Guidelines would give a distorted result.<br /> <br /> Under s. 19(1)(b) of the Guidelines, a tax-exempt payor may have his or her income ''grossed up'' to &lt;span class=&quot;noglossary&quot;&gt;account&lt;/span&gt; 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.<br /> <br /> Think of it like this:<br /> <br /> &lt;blockquote&gt;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 income might really be about $30,000.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;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.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;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.&lt;/blockquote&gt;<br /> <br /> 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.<br /> <br /> 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 Guidelines, since the Advisory Guidelines use the same approach to calculate income as the Child Support Guidelines.<br /> <br /> ==Family property and family debt==<br /> <br /> Dividing property can be a bit of a problem for Aboriginal spouses when real property on reserve is involved. <br /> <br /> In a nutshell, the ''[http://laws-lois.justice.gc.ca/eng/Const/index.html 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 ownership individuals on reserve lands can have is a Certificate of Possession that gives the owner the right to occupy the land but not the legal title to that land.<br /> <br /> 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:<br /> <br /> &lt;blockquote&gt;&lt;tt&gt;(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&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(a) the treaty first nation is entitled under its final agreement to make laws restricting alienation of its treaty lands,&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(b) a parcel of its treaty lands is at issue, and&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(c) at least one spouse is a treaty first nation member of the treaty first nation.&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> <br /> These are the general rules about family property and the court's authority under the ''[[Family Law Act]]'':<br /> <br /> *'''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.<br /> *'''Real Property:''' Property and structures on reserve lands are ''immovable property''. The court cannot order the transfer 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.<br /> *'''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 &quot;owned&quot; 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.<br /> *'''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 home, but does not apply to family homes located on reserve lands.<br /> '''<br /> <br /> <br /> ''<br /> '''''Family Homes on Reserves and Matrimonial Interests or Rights Act'''''<br /> <br /> ''<br /> <br /> 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. <br /> <br /> 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.<br /> <br /> 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.<br /> <br /> Generally, this law applies to married couples and common-law 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.<br /> <br /> <br /> '''Division of the Value and Interests or Rights to the Family Home'''<br /> <br /> 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.<br /> <br /> 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. <br /> <br /> <br /> '''Emergency Protection Orders'''<br /> <br /> 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.<br /> <br /> <br /> '''<br /> '''Death of a Spouse or Common Law Partner'''<br /> <br /> 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 law partner occurs.<br /> <br /> ==Getting legal help==<br /> <br /> This section is only a &lt;span class=&quot;noglossary&quot;&gt;brief&lt;/span&gt; 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.<br /> <br /> 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 [http://www.clicklaw.bc.ca/helpmap/search?k=aboriginal&amp; www.clicklaw.ca] using the HelpMap feature to find help near to where you are.<br /> <br /> ==Resources and links==<br /> ===Legislation===<br /> <br /> * ''[[Family Law Act]]''<br /> * ''[[Divorce Act]]''<br /> * ''[http://canlii.ca/t/7vhk Indian Act]''<br /> * ''[http://canlii.ca/t/844q Interpretation Act]''<br /> * [http://canlii.ca/t/80mh Child Support Guidelines]<br /> * ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''<br /> *[http://laws-lois.justice.gc.ca/eng/acts/F-1.2 ''Family Homes on Reserves and Matrimonial Interests or Rights Act]''<br /> <br /> ===Documents===<br /> <br /> * [http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/g-ld/spag/index.html Spousal Support Advisory Guidelines]<br /> <br /> ===Links===<br /> <br /> * [http://www.lss.bc.ca/aboriginal/ Legal Services Society Website: Aboriginal section]<br /> * [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Clicklaw Resources on Aboriginal Law]<br /> * [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]<br /> * [http://www.treaties.gov.bc.ca/treaties_maa-nulth.html First Nations of the Maa-Nulth Treaty]<br /> * [http://www.treaties.gov.bc.ca/treaties_tsawwassen.html Tsawwassen First Nation Treaty]<br /> <br /> <br /> {{REVIEWED | reviewer = [[Rhaea Bailey]], January 6, 2014}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Rhaea Bailey https://wiki.clicklaw.bc.ca/index.php?title=Indigenous_Families&diff=32703 2016-12-01T19:44:40Z

<p>Rhaea Bailey: /* Legislation */</p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = specific}}{{JPBOFL Editor Badge<br /> |ChapterEditors = [[Arlene Henry | Arlene Henry, QC]] and [[Rhaea Bailey]]<br /> }}<br /> {{Clicklawbadge<br /> |resourcetype = many resources on<br /> |link = [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Aboriginal law topics]<br /> }}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 ''[http://canlii.ca/t/7vhk Indian Act]''. This section addresses these issues briefly. However, for more complete information I strongly encourage you to consult with a family law lawyer who has expertise in Aboriginal legal issues.<br /> <br /> 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 support payments, and dividing family property and family debt.<br /> <br /> ==The care of children==<br /> <br /> 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 child's ancestry comes from one parent 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.<br /> <br /> ===Custody under the ''Divorce Act''===<br /> <br /> In addition to the usual factors governing an award of child custody under s. 16 of the ''[[Divorce Act]]'', the court must also take into consideration a child's Aboriginal heritage when making a decision about custody. This is not expressly set out anywhere in the legislation, but past cases have decided that a child's Aboriginal heritage should be considered as part of the general &quot;best interests of the child&quot; test.<br /> <br /> This principle was established in British Columbia by ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761, a decision of the Supreme Court of Canada. In its decision, the court said that:<br /> <br /> &lt;blockquote&gt;&quot;... the trial judge 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 ...&quot;&lt;/blockquote&gt;<br /> <br /> In another case, ''[http://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60, the Supreme Court of Canada commented that:<br /> <br /> &lt;blockquote&gt;&quot;... 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 evidence.&quot;&lt;/blockquote&gt;<br /> <br /> ===Guardianship under the ''Family Law Act''===<br /> <br /> 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 ''[http://canlii.ca/t/7vhk 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.<br /> <br /> Where there is an application for guardianship of a treaty First Nation child in a family law court proceeding, under ss. 208 and 209 of the ''[[Family Law Act]]'':<br /> <br /> #the First Nation government must be served with notice of the application,<br /> #the First Nation government has standing in the court proceeding, and<br /> #the court must consider the laws and customs of the First Nation in making its decision.<br /> <br /> Section 208 applies to Nis&lt;u&gt;g&lt;/u&gt;a'a children; s. 209 deals with other treaty First Nation children and says this:<br /> <br /> &lt;blockquote&gt;&lt;tt&gt;(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&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(a) must be served with notice of the proceeding, and&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(b) has standing in the proceeding.&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> <br /> Under s. 29.1 of the provincial ''[http://canlii.ca/t/844q Interpretation Act]'', the present treaty First Nations are the Tsawwassen First Nation and the Maa-nulth First Nations.<br /> <br /> 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 guardian's will or a Form 2 Appointment under the [http://canlii.ca/t/8rdx Family Law Act Regulation].<br /> <br /> ===Access, parenting time and contact===<br /> <br /> 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 access, as well as parenting time and contact under the ''[[Family Law Act]]'', especially where one of the parents isn't Aboriginal.<br /> <br /> 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 party, such as an elder or another family member, who will keep the child in touch with his or her culture.<br /> <br /> 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 order or agreement which provides for the access requires the other parent to take the child off reserve for access visits.<br /> <br /> ==Child support and spousal support==<br /> <br /> Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying child support and spousal support. <br /> <br /> There is, however, one significant additional issue about the calculation of income for the purposes of support calculations. Aboriginal people who qualify as &quot;status Indians&quot; 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 Guidelines would give a distorted result.<br /> <br /> Under s. 19(1)(b) of the Guidelines, a tax-exempt payor may have his or her income ''grossed up'' to &lt;span class=&quot;noglossary&quot;&gt;account&lt;/span&gt; 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.<br /> <br /> Think of it like this:<br /> <br /> &lt;blockquote&gt;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 income might really be about $30,000.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;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.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;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.&lt;/blockquote&gt;<br /> <br /> 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.<br /> <br /> 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 Guidelines, since the Advisory Guidelines use the same approach to calculate income as the Child Support Guidelines.<br /> <br /> ==Family property and family debt==<br /> <br /> Dividing property can be a bit of a problem for Aboriginal spouses when real property on reserve is involved. <br /> <br /> In a nutshell, the ''[http://laws-lois.justice.gc.ca/eng/Const/index.html 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 ownership individuals on reserve lands can have is a Certificate of Possession that gives the owner the right to occupy the land but not the legal title to that land.<br /> <br /> 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:<br /> <br /> &lt;blockquote&gt;&lt;tt&gt;(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&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(a) the treaty first nation is entitled under its final agreement to make laws restricting alienation of its treaty lands,&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(b) a parcel of its treaty lands is at issue, and&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(c) at least one spouse is a treaty first nation member of the treaty first nation.&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> <br /> These are the general rules about family property and the court's authority under the ''[[Family Law Act]]'':<br /> <br /> *'''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.<br /> *'''Real Property:''' Property and structures on reserve lands are ''immovable property''. The court cannot order the transfer 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.<br /> *'''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 &quot;owned&quot; 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.<br /> *'''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 home, but does not apply to family homes located on reserve lands.<br /> '''<br /> <br /> <br /> ''<br /> '''''Family Homes on Reserves and Matrimonial Interests or Rights Act'''''<br /> <br /> ''<br /> <br /> 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. <br /> <br /> 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.<br /> <br /> 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.<br /> <br /> Generally, this law applies to married couples and common-law 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.<br /> <br /> <br /> '''Division of the Value and Interests or Rights to the Family Home'''<br /> <br /> 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.<br /> <br /> 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. <br /> <br /> <br /> '''Emergency Protection Orders'''<br /> <br /> 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.<br /> <br /> <br /> '''<br /> '''Death of a Spouse or Common Law Partner'''<br /> <br /> 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 law partner occurs.<br /> <br /> ==Getting legal help==<br /> <br /> This section is only a &lt;span class=&quot;noglossary&quot;&gt;brief&lt;/span&gt; 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.<br /> <br /> 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 [http://www.clicklaw.bc.ca/helpmap/search?k=aboriginal&amp; www.clicklaw.ca] using the HelpMap feature to find help near to where you are.<br /> <br /> ==Resources and links==<br /> ===Legislation===<br /> <br /> * ''[[Family Law Act]]''<br /> * ''[[Divorce Act]]''<br /> * ''[http://canlii.ca/t/7vhk Indian Act]''<br /> * ''[http://canlii.ca/t/844q Interpretation Act]''<br /> * [http://canlii.ca/t/80mh Child Support Guidelines]<br /> * ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''<br /> *[http://laws-lois.justice.gc.ca/eng/acts/F-1.2 ''Family Homes on Reserves and Matrimonial Interests or Rights Act'']&quot;<br /> <br /> ===Documents===<br /> <br /> * [http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/g-ld/spag/index.html Spousal Support Advisory Guidelines]<br /> <br /> ===Links===<br /> <br /> * [http://www.lss.bc.ca/aboriginal/ Legal Services Society Website: Aboriginal section]<br /> * [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Clicklaw Resources on Aboriginal Law]<br /> * [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]<br /> * [http://www.treaties.gov.bc.ca/treaties_maa-nulth.html First Nations of the Maa-Nulth Treaty]<br /> * [http://www.treaties.gov.bc.ca/treaties_tsawwassen.html Tsawwassen First Nation Treaty]<br /> <br /> <br /> {{REVIEWED | reviewer = [[Rhaea Bailey]], January 6, 2014}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Rhaea Bailey https://wiki.clicklaw.bc.ca/index.php?title=Indigenous_Families&diff=32702 2016-12-01T19:35:02Z

<p>Rhaea Bailey: /* Legislation */</p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = specific}}{{JPBOFL Editor Badge<br /> |ChapterEditors = [[Arlene Henry | Arlene Henry, QC]] and [[Rhaea Bailey]]<br /> }}<br /> {{Clicklawbadge<br /> |resourcetype = many resources on<br /> |link = [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Aboriginal law topics]<br /> }}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 ''[http://canlii.ca/t/7vhk Indian Act]''. This section addresses these issues briefly. However, for more complete information I strongly encourage you to consult with a family law lawyer who has expertise in Aboriginal legal issues.<br /> <br /> 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 support payments, and dividing family property and family debt.<br /> <br /> ==The care of children==<br /> <br /> 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 child's ancestry comes from one parent 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.<br /> <br /> ===Custody under the ''Divorce Act''===<br /> <br /> In addition to the usual factors governing an award of child custody under s. 16 of the ''[[Divorce Act]]'', the court must also take into consideration a child's Aboriginal heritage when making a decision about custody. This is not expressly set out anywhere in the legislation, but past cases have decided that a child's Aboriginal heritage should be considered as part of the general &quot;best interests of the child&quot; test.<br /> <br /> This principle was established in British Columbia by ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761, a decision of the Supreme Court of Canada. In its decision, the court said that:<br /> <br /> &lt;blockquote&gt;&quot;... the trial judge 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 ...&quot;&lt;/blockquote&gt;<br /> <br /> In another case, ''[http://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60, the Supreme Court of Canada commented that:<br /> <br /> &lt;blockquote&gt;&quot;... 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 evidence.&quot;&lt;/blockquote&gt;<br /> <br /> ===Guardianship under the ''Family Law Act''===<br /> <br /> 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 ''[http://canlii.ca/t/7vhk 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.<br /> <br /> Where there is an application for guardianship of a treaty First Nation child in a family law court proceeding, under ss. 208 and 209 of the ''[[Family Law Act]]'':<br /> <br /> #the First Nation government must be served with notice of the application,<br /> #the First Nation government has standing in the court proceeding, and<br /> #the court must consider the laws and customs of the First Nation in making its decision.<br /> <br /> Section 208 applies to Nis&lt;u&gt;g&lt;/u&gt;a'a children; s. 209 deals with other treaty First Nation children and says this:<br /> <br /> &lt;blockquote&gt;&lt;tt&gt;(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&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(a) must be served with notice of the proceeding, and&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(b) has standing in the proceeding.&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> <br /> Under s. 29.1 of the provincial ''[http://canlii.ca/t/844q Interpretation Act]'', the present treaty First Nations are the Tsawwassen First Nation and the Maa-nulth First Nations.<br /> <br /> 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 guardian's will or a Form 2 Appointment under the [http://canlii.ca/t/8rdx Family Law Act Regulation].<br /> <br /> ===Access, parenting time and contact===<br /> <br /> 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 access, as well as parenting time and contact under the ''[[Family Law Act]]'', especially where one of the parents isn't Aboriginal.<br /> <br /> 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 party, such as an elder or another family member, who will keep the child in touch with his or her culture.<br /> <br /> 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 order or agreement which provides for the access requires the other parent to take the child off reserve for access visits.<br /> <br /> ==Child support and spousal support==<br /> <br /> Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying child support and spousal support. <br /> <br /> There is, however, one significant additional issue about the calculation of income for the purposes of support calculations. Aboriginal people who qualify as &quot;status Indians&quot; 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 Guidelines would give a distorted result.<br /> <br /> Under s. 19(1)(b) of the Guidelines, a tax-exempt payor may have his or her income ''grossed up'' to &lt;span class=&quot;noglossary&quot;&gt;account&lt;/span&gt; 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.<br /> <br /> Think of it like this:<br /> <br /> &lt;blockquote&gt;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 income might really be about $30,000.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;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.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;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.&lt;/blockquote&gt;<br /> <br /> 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.<br /> <br /> 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 Guidelines, since the Advisory Guidelines use the same approach to calculate income as the Child Support Guidelines.<br /> <br /> ==Family property and family debt==<br /> <br /> Dividing property can be a bit of a problem for Aboriginal spouses when real property on reserve is involved. <br /> <br /> In a nutshell, the ''[http://laws-lois.justice.gc.ca/eng/Const/index.html 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 ownership individuals on reserve lands can have is a Certificate of Possession that gives the owner the right to occupy the land but not the legal title to that land.<br /> <br /> 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:<br /> <br /> &lt;blockquote&gt;&lt;tt&gt;(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&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(a) the treaty first nation is entitled under its final agreement to make laws restricting alienation of its treaty lands,&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(b) a parcel of its treaty lands is at issue, and&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(c) at least one spouse is a treaty first nation member of the treaty first nation.&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> <br /> These are the general rules about family property and the court's authority under the ''[[Family Law Act]]'':<br /> <br /> *'''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.<br /> *'''Real Property:''' Property and structures on reserve lands are ''immovable property''. The court cannot order the transfer 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.<br /> *'''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 &quot;owned&quot; 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.<br /> *'''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 home, but does not apply to family homes located on reserve lands.<br /> '''<br /> <br /> <br /> ''<br /> '''''Family Homes on Reserves and Matrimonial Interests or Rights Act'''''<br /> <br /> ''<br /> <br /> 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. <br /> <br /> 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.<br /> <br /> 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.<br /> <br /> Generally, this law applies to married couples and common-law 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.<br /> <br /> <br /> '''Division of the Value and Interests or Rights to the Family Home'''<br /> <br /> 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.<br /> <br /> 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. <br /> <br /> <br /> '''Emergency Protection Orders'''<br /> <br /> 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.<br /> <br /> <br /> '''<br /> '''Death of a Spouse or Common Law Partner'''<br /> <br /> 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 law partner occurs.<br /> <br /> ==Getting legal help==<br /> <br /> This section is only a &lt;span class=&quot;noglossary&quot;&gt;brief&lt;/span&gt; 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.<br /> <br /> 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 [http://www.clicklaw.bc.ca/helpmap/search?k=aboriginal&amp; www.clicklaw.ca] using the HelpMap feature to find help near to where you are.<br /> <br /> ==Resources and links==<br /> ===Legislation===<br /> <br /> * ''[[Family Law Act]]''<br /> * ''[[Divorce Act]]''<br /> * ''[http://canlii.ca/t/7vhk Indian Act]''<br /> * ''[http://canlii.ca/t/844q Interpretation Act]''<br /> * [http://canlii.ca/t/80mh Child Support Guidelines]<br /> * ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''<br /> *&quot;[http://laws-lois.justice.gc.ca/eng/acts/F-1.2 ''Family Homes on Reserves and Matrimonial Interests or Rights Act'']&quot;<br /> <br /> ===Documents===<br /> <br /> * [http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/g-ld/spag/index.html Spousal Support Advisory Guidelines]<br /> <br /> ===Links===<br /> <br /> * [http://www.lss.bc.ca/aboriginal/ Legal Services Society Website: Aboriginal section]<br /> * [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Clicklaw Resources on Aboriginal Law]<br /> * [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]<br /> * [http://www.treaties.gov.bc.ca/treaties_maa-nulth.html First Nations of the Maa-Nulth Treaty]<br /> * [http://www.treaties.gov.bc.ca/treaties_tsawwassen.html Tsawwassen First Nation Treaty]<br /> <br /> <br /> {{REVIEWED | reviewer = [[Rhaea Bailey]], January 6, 2014}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Rhaea Bailey https://wiki.clicklaw.bc.ca/index.php?title=Indigenous_Families&diff=24639 2015-02-12T05:02:55Z

<p>Rhaea Bailey: /* Family property and family debt */</p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = specific}}{{JPBOFL Editor Badge<br /> |ChapterEditors = [[Gayle Raphanel]] and [[Rhaea Bailey]]<br /> }}<br /> {{Clicklawbadge<br /> |resourcetype = many resources on<br /> |link = [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Aboriginal law topics]<br /> }}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 ''[http://canlii.ca/t/7vhk Indian Act]''. This section addresses these issues briefly. However, for more complete information I strongly encourage you to consult with a family law lawyer who has expertise in Aboriginal legal issues.<br /> <br /> 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 support payments, and dividing family property and family debt.<br /> <br /> ==The care of children==<br /> <br /> 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 child's ancestry comes from one parent 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.<br /> <br /> ===Custody under the ''Divorce Act''===<br /> <br /> In addition to the usual factors governing an award of child custody under s. 16 of the ''[[Divorce Act]]'', the court must also take into consideration a child's Aboriginal heritage when making a decision about custody. This is not expressly set out anywhere in the legislation, but past cases have decided that a child's Aboriginal heritage should be considered as part of the general &quot;best interests of the child&quot; test.<br /> <br /> This principle was established in British Columbia by ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761, a decision of the Supreme Court of Canada. In its decision, the court said that:<br /> <br /> &lt;blockquote&gt;&quot;... the trial judge 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 ...&quot;&lt;/blockquote&gt;<br /> <br /> In another case, ''[http://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60, the Supreme Court of Canada commented that:<br /> <br /> &lt;blockquote&gt;&quot;... 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 evidence.&quot;&lt;/blockquote&gt;<br /> <br /> ===Guardianship under the ''Family Law Act''===<br /> <br /> 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 ''[http://canlii.ca/t/7vhk 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.<br /> <br /> Where there is an application for guardianship of a treaty First Nation child in a family law court proceeding, under ss. 208 and 209 of the ''[[Family Law Act]]'':<br /> <br /> #the First Nation government must be served with notice of the application,<br /> #the First Nation government has standing in the court proceeding, and<br /> #the court must consider the laws and customs of the First Nation in making its decision.<br /> <br /> Section 208 applies to Nis&lt;u&gt;g&lt;/u&gt;a'a children; s. 209 deals with other treaty First Nation children and says this:<br /> <br /> &lt;blockquote&gt;&lt;tt&gt;(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&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(a) must be served with notice of the proceeding, and&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(b) has standing in the proceeding.&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> <br /> Under s. 29.1 of the provincial ''[http://canlii.ca/t/844q Interpretation Act]'', the present treaty First Nations are the Tsawwassen First Nation and the Maa-nulth First Nations.<br /> <br /> 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 guardian's will or a Form 2 Appointment under the [http://canlii.ca/t/8rdx Family Law Act Regulation].<br /> <br /> ===Access, parenting time and contact===<br /> <br /> 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 access, as well as parenting time and contact under the ''[[Family Law Act]]'', especially where one of the parents isn't Aboriginal.<br /> <br /> 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 party, such as an elder or another family member, who will keep the child in touch with his or her culture.<br /> <br /> 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 order or agreement which provides for the access requires the other parent to take the child off reserve for access visits.<br /> <br /> ==Child support and spousal support==<br /> <br /> Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying child support and spousal support. <br /> <br /> There is, however, one significant additional issue about the calculation of income for the purposes of support calculations. Aboriginal people who qualify as &quot;status Indians&quot; 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 Guidelines would give a distorted result.<br /> <br /> Under s. 19(1)(b) of the Guidelines, a tax-exempt payor may have his or her income ''grossed up'' to &lt;span class=&quot;noglossary&quot;&gt;account&lt;/span&gt; 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.<br /> <br /> Think of it like this:<br /> <br /> &lt;blockquote&gt;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 income might really be about $30,000.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;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.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;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.&lt;/blockquote&gt;<br /> <br /> 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.<br /> <br /> 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 Guidelines, since the Advisory Guidelines use the same approach to calculate income as the Child Support Guidelines.<br /> <br /> ==Family property and family debt==<br /> <br /> Dividing property can be a bit of a problem for Aboriginal spouses when real property on reserve is involved. <br /> <br /> In a nutshell, the ''[http://laws-lois.justice.gc.ca/eng/Const/index.html 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 ownership individuals on reserve lands can have is a Certificate of Possession that gives the owner the right to occupy the land but not the legal title to that land.<br /> <br /> 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:<br /> <br /> &lt;blockquote&gt;&lt;tt&gt;(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&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(a) the treaty first nation is entitled under its final agreement to make laws restricting alienation of its treaty lands,&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(b) a parcel of its treaty lands is at issue, and&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(c) at least one spouse is a treaty first nation member of the treaty first nation.&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> <br /> These are the general rules about family property and the court's authority under the ''[[Family Law Act]]'':<br /> <br /> *'''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.<br /> *'''Real Property:''' Property and structures on reserve lands are ''immovable property''. The court cannot order the transfer 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.<br /> *'''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 &quot;owned&quot; 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.<br /> *'''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 home, but does not apply to family homes located on reserve lands.<br /> '''<br /> <br /> <br /> ''<br /> '''''Family Homes on Reserves and Matrimonial Interests or Rights Act'''''<br /> <br /> ''<br /> <br /> 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. <br /> <br /> 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.<br /> <br /> 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.<br /> <br /> Generally, this law applies to married couples and common-law 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.<br /> <br /> <br /> '''Division of the Value and Interests or Rights to the Family Home'''<br /> <br /> 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.<br /> <br /> 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. <br /> <br /> <br /> '''Emergency Protection Orders'''<br /> <br /> 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.<br /> <br /> <br /> '''<br /> '''Death of a Spouse or Common Law Partner'''<br /> <br /> 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 law partner occurs.<br /> <br /> ==Getting legal help==<br /> <br /> This section is only a &lt;span class=&quot;noglossary&quot;&gt;brief&lt;/span&gt; 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.<br /> <br /> 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 [http://www.clicklaw.bc.ca/helpmap/search?k=aboriginal&amp; www.clicklaw.ca] using the HelpMap feature to find help near to where you are.<br /> <br /> ==Resources and links==<br /> ===Legislation===<br /> <br /> * ''[[Family Law Act]]''<br /> * ''[[Divorce Act]]''<br /> * ''[http://canlii.ca/t/7vhk Indian Act]''<br /> * ''[http://canlii.ca/t/844q Interpretation Act]''<br /> * [http://canlii.ca/t/80mh Child Support Guidelines]<br /> * ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''<br /> <br /> ===Documents===<br /> <br /> * [http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/g-ld/spag/index.html Spousal Support Advisory Guidelines]<br /> <br /> ===Links===<br /> <br /> * [http://www.lss.bc.ca/aboriginal/ Legal Services Society Website: Aboriginal section]<br /> * [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Clicklaw Resources on Aboriginal Law]<br /> * [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]<br /> * [http://www.treaties.gov.bc.ca/treaties_maa-nulth.html First Nations of the Maa-Nulth Treaty]<br /> * [http://www.treaties.gov.bc.ca/treaties_tsawwassen.html Tsawwassen First Nation Treaty]<br /> <br /> <br /> {{REVIEWED | reviewer = [[Rhaea Bailey]], January 6, 2014}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Rhaea Bailey https://wiki.clicklaw.bc.ca/index.php?title=Link_title&diff=24638 2015-02-12T05:00:06Z

<p>Rhaea Bailey: Created page with &quot;http://www.parl.gc.ca/content/hoc/Bills/411/Government/S-2/S-2_4/S-2_4.pdf&quot;</p> <hr /> <div>http://www.parl.gc.ca/content/hoc/Bills/411/Government/S-2/S-2_4/S-2_4.pdf</div>

Rhaea Bailey https://wiki.clicklaw.bc.ca/index.php?title=Indigenous_Families&diff=15340 2014-01-06T23:22:48Z

<p>Rhaea Bailey: /* Child support and spousal support */</p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = other}}<br /> {{Clicklawbadge<br /> |resourcetype = many resources on<br /> |link = [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Aboriginal law topics]<br /> }}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 ''[http://canlii.ca/t/7vhk Indian Act]''. This section addresses these issues briefly. However, for more complete information I strongly encourage you to consult with a family law lawyer who has expertise in Aboriginal legal issues.<br /> <br /> 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 support payments, and dividing family property and family debt.<br /> <br /> ==The care of children==<br /> <br /> 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 child's ancestry comes from one parent 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.<br /> <br /> ===Custody under the ''Divorce Act''===<br /> <br /> In addition to the usual factors governing an award of child custody under s. 16 of the ''[[Divorce Act]]'', the court must also take into consideration a child's Aboriginal heritage when making a decision about custody. This is not expressly set out anywhere in the legislation, but past cases have decided that a child's Aboriginal heritage should be considered as part of the general &quot;best interests of the child&quot; test.<br /> <br /> This principle was established in British Columbia by ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761, a decision of the Supreme Court of Canada. In its decision, the court said that:<br /> <br /> &lt;blockquote&gt;&quot;... the trial judge 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 ...&quot;&lt;/blockquote&gt;<br /> <br /> In another case, ''[http://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60, the Supreme Court of Canada commented that:<br /> <br /> &lt;blockquote&gt;&quot;... 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 evidence.&quot;&lt;/blockquote&gt;<br /> <br /> ===Guardianship under the ''Family Law Act''===<br /> <br /> 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 ''[http://canlii.ca/t/7vhk 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.<br /> <br /> Where there is an application for guardianship of a treaty First Nation child in a family law court proceeding, under ss. 208 and 209 of the ''[[Family Law Act]]'':<br /> <br /> #the First Nation government must be served with notice of the application,<br /> #the First Nation government has standing in the court proceeding, and<br /> #the court must consider the laws and customs of the First Nation in making its decision.<br /> <br /> Section 208 applies to Nis&lt;u&gt;g&lt;/u&gt;a'a children; s. 209 deals with other treaty First Nation children and says this:<br /> <br /> &lt;blockquote&gt;&lt;tt&gt;(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&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(a) must be served with notice of the proceeding, and&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(b) has standing in the proceeding.&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> <br /> Under s. 29.1 of the provincial ''[http://canlii.ca/t/844q Interpretation Act]'', the present treaty First Nations are the Tsawwassen First Nation and the Maa-nulth First Nations.<br /> <br /> 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 guardian's will or a Form 2 Appointment under the [http://canlii.ca/t/8rdx Family Law Act Regulation].<br /> <br /> ===Access, parenting time and contact===<br /> <br /> 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 access, as well as parenting time and contact under the ''[[Family Law Act]]'', especially where one of the parents isn't Aboriginal.<br /> <br /> 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 party, such as an elder or another family member, who will keep the child in touch with his or her culture.<br /> <br /> 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 order or agreement which provides for the access requires the other parent to take the child off reserve for access visits.<br /> <br /> ==Child support and spousal support==<br /> <br /> Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying child support and spousal support. <br /> <br /> There is, however, one significant additional issue about the calculation of income for the purposes of support calculations. Aboriginal people who qualify as &quot;status Indians&quot; 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 Guidelines would give a distorted result.<br /> <br /> Under s. 19(1)(b) of the Guidelines, a tax-exempt payor may have his or her income ''grossed up'' to &lt;span class=&quot;noglossary&quot;&gt;account&lt;/span&gt; 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.<br /> <br /> Think of it like this:<br /> <br /> &lt;blockquote&gt;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 income might really be about $30,000.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;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.&lt;/blockquote&gt;<br /> &lt;blockquote&gt;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.&lt;/blockquote&gt;<br /> <br /> 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.<br /> <br /> 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 Guidelines, since the Advisory Guidelines use the same approach to calculate income as the Child Support Guidelines.<br /> <br /> ==Family property and family debt==<br /> <br /> Dividing property can be a bit of a problem for Aboriginal spouses when real property on reserve is involved. <br /> <br /> In a nutshell, the ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Act]'' gives the federal government exclusive authority over laws relating to First Nations people and reserve lands. This means that the provincial government cannot make laws that deal with First Nations people, and that in some circumstances provincial laws do not apply on reserve lands. The problem here, from a family law point of view, is that since the federal government cannot pass laws dealing with personal property and real property (only the provincial governments can), and since the provincial governments cannot pass laws dealing with members of Canada's First Nations or their lands (only the federal government can), 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 ownership individuals on reserve lands can have is a Certificate of Possession that gives the owner the right to occupy the land but not the legal title to that land.<br /> <br /> However, 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. Section 210 of the ''[[Family Law Act]]'' says this:<br /> <br /> &lt;blockquote&gt;&lt;tt&gt;(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&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(a) the treaty first nation is entitled under its final agreement to make laws restricting alienation of its treaty lands,&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(b) a parcel of its treaty lands is at issue, and&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;blockquote&gt;&lt;tt&gt;(c) at least one spouse is a treaty first nation member of the treaty first nation.&lt;/tt&gt;&lt;/blockquote&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> &lt;blockquote&gt;&lt;tt&gt;(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.&lt;/tt&gt;&lt;/blockquote&gt;<br /> <br /> These are the general rules about family property and the court's authority under the ''[[Family Law Act]]'':<br /> <br /> *'''Financial Assets:''' Cash, bank accounts, stocks, bonds and whatnot are called ''moveable property''. The court can deal with these sorts of assets.<br /> *'''Real Property:''' Property and structures on reserve lands are ''immovable property''. The court cannot order the transfer 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.<br /> *'''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 &quot;owned&quot; 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.<br /> *'''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 home, but does not apply to family homes located on reserve lands.<br /> <br /> ==Getting legal help==<br /> <br /> This section is only a &lt;span class=&quot;noglossary&quot;&gt;brief&lt;/span&gt; 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.<br /> <br /> 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 [http://www.clicklaw.bc.ca/helpmap/search?k=aboriginal&amp; www.clicklaw.ca] using the HelpMap feature to find help near to where you are.<br /> <br /> ==Resources and links==<br /> ===Legislation===<br /> <br /> * ''[[Family Law Act]]''<br /> * ''[[Divorce Act]]''<br /> * ''[http://canlii.ca/t/7vhk Indian Act]''<br /> * ''[http://canlii.ca/t/844q Interpretation Act]''<br /> * [http://canlii.ca/t/80mh Child Support Guidelines]<br /> * ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''<br /> <br /> ===Documents===<br /> <br /> * [http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/g-ld/spag/index.html Spousal Support Advisory Guidelines]<br /> <br /> ===Links===<br /> <br /> * [http://www.lss.bc.ca/aboriginal/ Legal Services Society Website: Aboriginal section]<br /> * [http://www.clicklaw.bc.ca/global/search?f=Aboriginal Clicklaw Resources on Aboriginal Law]<br /> * [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]<br /> * [http://www.treaties.gov.bc.ca/treaties_maa-nulth.html First Nations of the Maa-Nulth Treaty]<br /> * [http://www.treaties.gov.bc.ca/treaties_tsawwassen.html Tsawwassen First Nation Treaty]<br /> <br /> <br /> {{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Rhaea Bailey https://wiki.clicklaw.bc.ca/index.php?title=Rhaea_Bailey&diff=13751 2013-06-21T23:20:33Z

<p>Rhaea Bailey: </p> <hr /> <div>&lt;noinclude&gt;{{Template:Clicklaw Wikibooks Contributor}}&lt;/noinclude&gt;{{Contributor<br /> | bio = '''Rhaea Bailey''' is a subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the chapter on [[Other Family Law Issues]]. Rhaea is a graduate of UBC Law, and was called to the BC Bar in 2010. She practices primarily family and child protection law in Vancouver, but she also travels outside of the lower mainland as a family law advice lawyer in clinics in Northern BC on a monthly basis. She recently had the pleasure of co-facilitating a workshop with the Ending Violence Association of BC in Tsay Keh Dene, British Columbia. <br /> <br /> <br /> <br /> | name = Rhaea Bailey<br /> | image = [[image:rbailey.jpg|150px|left|link=|Rhaea Bailey]]<br /> | organization = Rhaea Bailey Law <br /> | website = <br /> }}<br /> <br /> &lt;noinclude&gt;<br /> [[Category:Contributor Bio|Bailey]]<br /> [[Category:JP Boyd on Family Law Contributors|Bailey]]<br /> &lt;/noinclude&gt;</div>

Rhaea Bailey https://wiki.clicklaw.bc.ca/index.php?title=Rhaea_Bailey&diff=13740 2013-06-21T23:07:21Z

<p>Rhaea Bailey: </p> <hr /> <div>&lt;noinclude&gt;{{Template:Clicklaw Wikibooks Contributor}}&lt;/noinclude&gt;{{Contributor<br /> | bio = '''Rhaea Bailey''' is a subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the chapter on [[Other Family Law Issues]]. Rhaea is a graduate of UBC Law, and was called to the BC Bar in 2010. She practices family law out of Vancouver, and has served as a family law advice lawyer in clinics in Northern BC and as co-facilitator in workshops with the Ending Violence Association of BC. <br /> <br /> <br /> <br /> | name = Rhaea Bailey<br /> | image = [[image:rbailey.jpg|150px|left|link=|Rhaea Bailey]]<br /> | organization = Rhaea Bailey Law <br /> | website = <br /> }}<br /> <br /> &lt;noinclude&gt;<br /> [[Category:Contributor Bio|Bailey]]<br /> [[Category:JP Boyd on Family Law Contributors|Bailey]]<br /> &lt;/noinclude&gt;</div>

Rhaea Bailey https://wiki.clicklaw.bc.ca/index.php?title=User_talk:Rhaea_Bailey&diff=13733 2013-06-21T21:06:07Z

<p>Rhaea Bailey: Created page with &quot;==Messages for Rhaea==&quot;</p> <hr /> <div>==Messages for Rhaea==</div>

Rhaea Bailey https://wiki.clicklaw.bc.ca/index.php?title=Talk:Rhaea_Bailey&diff=13732 2013-06-21T21:05:54Z

<p>Rhaea Bailey: Redirected page to User talk:Rhaea Bailey</p> <hr /> <div>#REDIRECT [[User talk:Rhaea Bailey]]</div>

Rhaea Bailey https://wiki.clicklaw.bc.ca/index.php?title=User:Rhaea_Bailey&diff=13731 2013-06-21T21:05:38Z

<p>Rhaea Bailey: Rhaea Bailey moved page User:Rhaea Bailey to Rhaea Bailey</p> <hr /> <div>#REDIRECT [[Rhaea Bailey]]</div>

Rhaea Bailey https://wiki.clicklaw.bc.ca/index.php?title=Rhaea_Bailey&diff=13730 2013-06-21T21:05:37Z

<p>Rhaea Bailey: Rhaea Bailey moved page User:Rhaea Bailey to Rhaea Bailey</p> <hr /> <div>&lt;noinclude&gt;{{Template:Clicklaw Wikibooks Contributor}}&lt;/noinclude&gt;{{Contributor<br /> | bio = '''Rhaea Bailey''' is a subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the chapter on [[Other Family Law Issues]]. Rhaea is a graduate of UBC Law, and was called to the BC Bar in 2010. She practices family law out of Vancouver, and has served as a family law advice lawyer in clinics in Northern BC and as co-facilitator in workshops with the Ending Violence Association of BC. <br /> <br /> <br /> <br /> | name = Rhaea Bailey<br /> | image = [[image:rbailey.png|150px|left|link=|Rhaea Bailey]]<br /> | organization = Rhaea Bailey Law <br /> | website = <br /> }}<br /> <br /> &lt;noinclude&gt;<br /> [[Category:Contributor Bio|Bailey]]<br /> [[Category:JP Boyd on Family Law Contributors|Bailey]]<br /> &lt;/noinclude&gt;</div>

Rhaea Bailey https://wiki.clicklaw.bc.ca/index.php?title=Rhaea_Bailey&diff=13728 2013-06-21T21:04:59Z

<p>Rhaea Bailey: Created page with &quot;&lt;noinclude&gt;{{Template:Clicklaw Wikibooks Contributor}}&lt;/noinclude&gt;{{Contributor | bio = &#039;&#039;&#039;Rhaea Bailey&#039;&#039;&#039; is a subject editor for &#039;&#039;JP Boyd on Family Law&#039;&#039;, and is jointl...&quot;</p> <hr /> <div>&lt;noinclude&gt;{{Template:Clicklaw Wikibooks Contributor}}&lt;/noinclude&gt;{{Contributor<br /> | bio = '''Rhaea Bailey''' is a subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the chapter on [[Other Family Law Issues]]. Rhaea is a graduate of UBC Law, and was called to the BC Bar in 2010. She practices family law out of Vancouver, and has served as a family law advice lawyer in clinics in Northern BC and as co-facilitator in workshops with the Ending Violence Association of BC. <br /> <br /> <br /> <br /> | name = Rhaea Bailey<br /> | image = [[image:rbailey.png|150px|left|link=|Rhaea Bailey]]<br /> | organization = Rhaea Bailey Law <br /> | website = <br /> }}<br /> <br /> &lt;noinclude&gt;<br /> [[Category:Contributor Bio|Bailey]]<br /> [[Category:JP Boyd on Family Law Contributors|Bailey]]<br /> &lt;/noinclude&gt;</div>

Rhaea Bailey