Difference between revisions of "Indigenous Families"
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}}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. | }}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. | ||
This section | This section looks 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. | ||
==The care of children== | ==The care of children== | ||
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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 ss. 208 and 209 of the ''[[Family Law Act]]'': | ||
*the First Nation government must be served with notice of the application, | |||
*the 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. | |||
Section 208 applies to Nis<u>g</u>a'a children; s. 209 deals with other treaty First Nation children and says this: | Section 208 applies to Nis<u>g</u>a'a children; s. 209 deals with other treaty First Nation children and says this: | ||
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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 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. | ||
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. | 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. | ||
==Child support and spousal support== | ==Child support and spousal support== | ||
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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 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 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. | ||
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 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. | ||
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<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 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> | ||
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 | 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. | ||
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, since the Advisory Guidelines use the same approach to calculate income as the Child Support Guidelines. | ||
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==Family property and family debt== | ==Family property and family debt== | ||
Dividing property can be a bit of a problem for Aboriginal spouses when real property on reserve is involved. | Dividing property can be a bit of a problem for Aboriginal spouses when real property on a reserve is involved. | ||
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. | 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 a 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. | ||
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: | 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: | ||
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These are the general rules about family property and the court's authority under the ''[[Family Law Act]]'': | These are the general rules about family property and the court's authority under the ''[[Family Law Act]]'': | ||
*'''Financial Assets:''' Cash, bank accounts, stocks, bonds and whatnot are called ''moveable property''. The court can deal with these sorts of assets if they are not situated on reserve lands. | *'''Financial Assets:''' Cash, bank accounts, stocks, bonds, and whatnot are called ''moveable property''. The court can deal with these sorts of assets if they are not situated on reserve lands. | ||
*'''Real Property:''' Property and structures on reserve lands are ''immovable property''. The court cannot order the 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. | *'''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. | ||
*'''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 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. | ||
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