Indigenous Families - Revision history

Nate Russell at 19:06, 3 June 2026

2026-06-03T19:06:38Z

← Older revision		Revision as of 19:06, 3 June 2026
Line 1:		Line 1:
	{{JP Boyd on Family Law TOC\|expanded = specific}}{{JPBOFL Editor Badge		{{Template:JPBOFLARCHIVE}}{{JP Boyd on Family Law TOC\|expanded = specific}}{{JPBOFL Editor Badge
	\|ChapterEditors = [[Rhaea Bailey]]		\|ChapterEditors = [[Rhaea Bailey]]
	}}		}}

Nate Russell: Categorizing for archive

2026-06-03T18:21:28Z

Categorizing for archive

← Older revision		Revision as of 18:21, 3 June 2026
Line 163:		Line 163:

	[[Category:JP Boyd on Family Law]]		[[Category:JP Boyd on Family Law]]
			[[Category:Archived Sections from JP Boyd on Family Law]]

Nate Russell: Nate Russell moved page Aboriginal Families to Indigenous Families: new title for edition 2020

2022-08-10T22:44:51Z

Nate Russell moved page Aboriginal Families to Indigenous Families: new title for edition 2020

← Older revision	Revision as of 22:44, 10 August 2022
(No difference)

Nate Russell: /* Links */

2019-08-01T02:12:20Z

Links

← Older revision		Revision as of 02:12, 1 August 2019
Line 149:		Line 149:
	===Links===		===Links===

	* [http://aboriginal.legalaid.bc.ca/ Legal Services Society's website ~~for~~ Aboriginal Legal Aid]		* [http://aboriginal.legalaid.bc.ca/ Legal Services Society's website "Aboriginal Legal Aid in BC"]
	* [https://www.clicklaw.bc.ca/global/search?so=r&f=Aboriginal Clicklaw Resources and Common Questions on Aboriginal Law]		* [https://www.clicklaw.bc.ca/global/search?so=r&f=Aboriginal Clicklaw Resources and Common Questions on Aboriginal Law]
	* [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]		* [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]

Nate Russell at 19:10, 30 July 2019

2019-07-30T19:10:01Z

← Older revision		Revision as of 19:10, 30 July 2019
Line 15:		Line 15:
	===Custody under the ''Divorce Act''===		===Custody under the ''Divorce Act''===

	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.		In addition to the usual factors governing an award of child custody under section 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.

	This principle was established by the Supreme Court of Canada in ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761. The court said that "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".		This principle was established by the Supreme Court of Canada in ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761. The court said that "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".

Nate Russell: /* Resources and links */

2019-07-23T07:14:40Z

Resources and links

← Older revision		Revision as of 07:14, 23 July 2019
Line 140:		Line 140:
	* ''[http://canlii.ca/t/844q Interpretation Act]''		* ''[http://canlii.ca/t/844q Interpretation Act]''
	* [http://canlii.ca/t/80mh Child Support Guidelines]		* [http://canlii.ca/t/80mh Child Support Guidelines]
	* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution ~~Acts~~, 1867 to 1982]''		* [http://laws-lois.justice.gc.ca/eng/Const/index.html ''Constitution Act, 1867'' and ''Constitution Act, 1982'' (consolidation)]
	* ''[http://canlii.ca/t/8rzj Family Homes on Reserves and Matrimonial Interests or Rights Act]''		* ''[http://canlii.ca/t/8rzj Family Homes on Reserves and Matrimonial Interests or Rights Act]''

Nate Russell at 07:10, 23 July 2019

2019-07-23T07:10:40Z

← Older revision		Revision as of 07:10, 23 July 2019
Line 124:		Line 124:
	====Death of a spouse or common-law partner====		====Death of a spouse or common-law partner====

	~~Paragraph~~ 14 of the act provides that a spouse who does not hold a right or interest in the family home on the reserve can stay in the home for a period of 180 days after the day their spouse or common-law partner died.		Section 14 of the act provides that a spouse or common-law partner who does not hold a right or interest in the family home on the reserve can stay in the home for a period of 180 days after the day their spouse or common-law partner died. The surviving spouse does not need to be Aboriginal to benefit from this section.

	==Getting legal help==		==Getting legal help==

Nate Russell at 07:06, 23 July 2019

2019-07-23T07:06:31Z

← Older revision		Revision as of 07:06, 23 July 2019
Line 96:		Line 96:
	*'''Certificates of Possession:''' The court generally cannot deal with real property located on a reserve, however, the bulk of real property located within reserve lands is not "owned" the way a house off-reserve can be. People holding real property on reserve lands are generally only allowed to have and use the land by way of a Certificate of Possession. Since Certificates of Possession are dispensed under the authority of the federal government, the court cannot make an order for the transfer of the Certificate under the ''[[Family Law Act]]''. The spouse who has the Certificate will usually have to compensate the other spouse for their interest in the Certificate, providing that the Certificate can be shown to have a value.		*'''Certificates of Possession:''' The court generally cannot deal with real property located on a reserve, however, the bulk of real property located within reserve lands is not "owned" the way a house off-reserve can be. People holding real property on reserve lands are generally only allowed to have and use the land by way of a Certificate of Possession. Since Certificates of Possession are dispensed under the authority of the federal government, the court cannot make an order for the transfer of the Certificate under the ''[[Family Law Act]]''. The spouse who has the Certificate will usually have to compensate the other spouse for their interest in the Certificate, providing that the Certificate can be shown to have a value.
	*'''Exclusive Use of Property:''' Section 90 of the ''[[Family Law Act]]'' allows someone to apply for an order giving them exclusive use of the family home, but this section does not apply to family homes located on reserve lands.		*'''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 this section does not apply to family homes located on reserve lands.
	~~'''~~

			===''Family Homes on Reserves and Matrimonial Interests or Rights Act''===

	''		In December 2013, the Federal Government proclaimed a new law, the ''Family Homes on Reserves and Matrimonial Interests or Rights Act''. This act finally provided a process for dealing with family homes on a reserve. It applies:
	~~'''''Family Homes on Reserves and Matrimonial Interests or Rights Act'''''~~		* during a relationship between "married spouses" or "common-law partners" (as the federal act refers to unmarried spouses),
			* after that relationship breaks down, or
	''		* when one of them dies.

	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 a reserve, during a relationship between married spouses or common-law partners, after that relationship breaks down or when ~~a spouse or partner~~ dies.

	The act is divided into two parts. The first part of the act provides a mechanism for First Nations to enact laws respecting homes on a reserve. This part of the act has been in force since December 16, 2013.		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 a reserve. This part of the act has been in force since December 16, 2013.
Line 113:		Line 111:


	~~'''~~Division of the ~~Value~~ and ~~Interests~~ or ~~Rights~~ to the ~~Family Home'''~~		====Division of the value and interests or rights to the family home====

	The act sets out that spouses or common-law partners are entitled to one half of the value of the interest or right that either of them holds in the family home in the event of relationship breakdown or death of one of the spouses.		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.
Line 120:		Line 118:


	~~'''~~Emergency ~~Protection Orders'''~~		====Emergency protection orders====

	~~While the act provides that designated judges have the power to make emergency~~ protection orders, the Province of British Columbia 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 a reserve.

			While the act provides that ''designated'' judges have the power to make emergency protection orders, the Province of British Columbia has decided not to designate any judges under the act at this time. Currently, the only protection orders available are those made under section 183 of the ''[[Family Law Act]]'', which are available to people both on and off a reserve. See the chapter on [[Family Violence Overview\|Family Violence]] for a discussion of protection orders and other laws to protect people at risk of domestic violence.

	~~'''~~		====Death of a spouse or common-law partner====
	~~'''~~Death of a ~~Spouse~~ or ~~Common Law Partner'''~~

	Paragraph 14 of the act provides that a spouse who does not hold a right or interest in the family home on the 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~~.		Paragraph 14 of the act provides that a spouse who does not hold a right or interest in the family home on the reserve can stay in the home for a period of 180 days after the day their spouse or common-law partner died.

	==Getting legal help==		==Getting legal help==
Line 153:		Line 149:
	===Links===		===Links===

	* [http://aboriginal.legalaid.bc.ca/ Legal Services Society's website: Aboriginal ~~section~~]		* [http://aboriginal.legalaid.bc.ca/ Legal Services Society's website for Aboriginal Legal Aid]
	* [https://www.clicklaw.bc.ca/global/search?so=r&f=Aboriginal Clicklaw Resources and Common Questions on Aboriginal Law]		* [https://www.clicklaw.bc.ca/global/search?so=r&f=Aboriginal Clicklaw Resources and Common Questions on Aboriginal Law]
	* [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]		* [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]

Nate Russell at 06:35, 23 July 2019

2019-07-23T06:35:38Z

Corinne Shortridge: /* Family property and family debt */

2019-07-04T17:04:42Z

Family property and family debt

← Older revision		Revision as of 17:04, 4 July 2019
Line 121:		Line 121:
	'''Death of a Spouse or Common Law Partner'''		'''Death of a Spouse or Common Law Partner'''

	Paragraph 14 of the act provides that a spouse who does not hold a right or interest in the family home on reserve can stay in the home for a period of 180 days after the day on which the death of their spouse or common law partner occurs.		Paragraph 14 of the act provides that a spouse who does not hold a right or interest in the family home on the 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.

	==Getting legal help==		==Getting legal help==

← Older revision		Revision as of 06:35, 23 July 2019
Line 19:		Line 19:
	This principle was established by the Supreme Court of Canada in ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761. The court said that "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".		This principle was established by the Supreme Court of Canada in ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761. The court said that "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".

	In another ~~case~~, ''[http://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60, the Supreme Court of Canada ~~commented~~ that "racial identity is but one factor that may be considered in determining personal identity; the relevancy of this factor depends on the context~~. [...] All~~ factors must be considered pragmatically, as different situations and different philosophies require an individual analysis on the basis of reliable evidence."		In another ruling, ''[http://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60, the Supreme Court of Canada concluded that:
			* racial identity is but one factor that may be considered in determining someone's personal identity,
			* the relevancy of this factor depends on the context, and
			* all factors must be considered pragmatically, as different situations and different philosophies require an individual analysis on the basis of reliable evidence.

	===Guardianship under the ''Family Law Act''===		===Guardianship under the ''Family Law Act''===
Line 25:		Line 28:
	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.		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.

	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]]'':		Where there is an application for guardianship of a treaty First Nation child in a family law court proceeding, under sections 208 and 209 of the ''[[Family Law Act]]'':

	*the First Nation government must be served with notice of the application,		*the treat First Nation's government must be served with notice of the application,
	*the First Nation government has standing in the court proceeding, and		*the treaty First Nation government has standing in the court proceeding, and
	*the court must consider the laws and customs of the First Nation in making its decision.		*the court must consider the laws and customs of the treaty First Nation in making its decision.

	Section 208 applies to Nis<u>g</u>a'a children; s. 209 deals with other treaty First Nation children and says this:		(To have ''standing'' means, in legal terms, that the court recognizes your right to be heard and bring claims based upon your stake in the outcome of a legal proceeding.)

			Section 208 applies to Nis<u>g</u>a'a children; section 209 deals with other treaty First Nation children and says this:

	<blockquote><tt>(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</tt></blockquote>		<blockquote><tt>(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</tt></blockquote>
Line 38:		Line 43:
	<blockquote><tt>(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.</tt></blockquote>		<blockquote><tt>(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.</tt></blockquote>

	~~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.		Section 29.1 of the provincial ''[http://canlii.ca/t/844q Interpretation Act]'' defines the term "treaty first nation". The nations that currently meet this definition are the Tsawwassen First Nation and the Maa-nulth First Nations.

	Remember ~~that~~ the only time an application must be made for guardianship is where a person, including a parent~~, is~~ not ~~presumed to have guardianship~~ under s. 39 and has not been appointed as a guardian by a guardian's will or a Form 2 Appointment under the [http://canlii.ca/t/8rdx Family Law Act Regulation].		Remember, the only time an application must be made for guardianship is where a person, including a parent:
			* does not meet the general conditions for being a child's guardian under section 39 of the ''[[Family Law Act]]'', 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].

	===Access, parenting time and contact===		===Access, parenting time and contact===

	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.		The concerns around a child's Aboriginal ancestry are the same whether determining ''custody'' under the ''[[Divorce Act]]'' or determining ''access, parenting time and contact'' under the ''[[Family Law Act]]''. This is especially important where one of the parents is not Aboriginal.

	Aboriginal children have the right to keep a connection to their culture and heritage. This may influence the ~~schedule of~~ parenting time or contact an Aboriginal parent has, and where a non-Aboriginal parent may exercise parenting time or contact. It may also result in the court extending contact to a third party, such as an elder or another family member, who will keep the child in touch with their culture.		Aboriginal children have the right to keep a connection to their culture and heritage. This may influence the parenting time schedule or contact that an Aboriginal parent has, and affect where a non-Aboriginal parent may exercise parenting time or contact. The fact that a child has Aboriginal ancestry may also result in the court extending contact to a third party, such as an elder or another family member who shares the Aboriginal ancestry with the child, and who will keep the child in touch with their culture.

	If a non-Aboriginal parent or a non-band member parent tries to exercise access to a child living on a reserve, the band may restrict that parent's ability to go onto the reserve to see the child. While this doesn't happen a great deal, the usual solution is for the parent trying to exercise access to ensure that the order or agreement ~~which provides for the access~~ requires the other parent to take the child off the reserve for access visits.		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 access order or agreement requires the other parent to take the child off the reserve for access visits.

	==Child support and spousal support==		==Child support and spousal support==
Line 54:		Line 61:
	Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying child support and spousal support.		Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying child support and spousal support.

	There is, however, one significant ~~additional~~ issue about the calculation of income for the purposes of support calculations. Aboriginal people who qualify as ''status Indians'' under the federal ''Indian Act'' and who work on a 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.		There is, however, one significant 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 a 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 for payors who work on a reserve and do not pay income tax.

	Under s. 19(1)(b) of the Guidelines, a tax-exempt payor may have their income ''grossed up'' to <span class="noglossary">account</span> 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.		Under section 19(1)(b) of the Guidelines, a tax-exempt payor may have their income ''grossed up'' to <span class="noglossary">account</span> 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 same amount as a tax-exempt person's income, once income taxes are taken off.

	Think of it like this:		Think of it like this:

	<blockquote>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.</blockquote>		<blockquote>Say a taxed payor makes a gross income of $40,000 per year. This is the taxed payor's income for the purposes of the Guidelines. Now, the taxed payor also pays taxes on that income, so their net income might really be about $30,000.</blockquote>
	<blockquote>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.</blockquote>		<blockquote>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 tax-exempt payor's income should be re-calculated upwards.</blockquote>
	<blockquote>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~~.</blockquote>		<blockquote>Under the Guidelines, the tax-exempt payor must calculate support payments using a higher income figure than they are actually paid. The higher income figure would be whatever a taxed payor would need to earn to have an after-tax income of $40,000. Say a taxed payor would have to earn $55,000 to have a net income of $40,000. In this example, the tax-exempt payor's income is then set at $55,000 for the purposes of calculating child support using the Guidelines.</blockquote>

	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 a gross income equivalent to what a ~~non-exempt~~ payor would have to earn to have the same net income.		Grossing-up a payor's income is intended to ensure that the children benefit from the amount of support available based on a gross income equivalent to what a taxed payor would have to earn to have the same net income.

	The same sort of grossing-up process will apply when determining how much spousal support a tax-exempt payor should have to pay, particularly if the amount payable is being determined using the Spousal Support Advisory Guidelines~~, since the~~ Advisory Guidelines use the same approach to calculate income as the Child Support Guidelines.		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. The Advisory Guidelines use the same approach to calculate income as the Child Support Guidelines.

	==Family property and family debt==		==Family property and family debt==