Difference between revisions of "Indigenous Families"
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All of the usual factors that govern the court's consideration of issues involving the care and control of children apply regardless of the child's aboriginal ancestry, whether that 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 native roots. | All of the usual factors that govern the court's consideration of issues involving the care and control of children apply regardless of the child's aboriginal ancestry, whether that 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 native roots. | ||
===Custody under the '' | ===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 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. | ||
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 1997 decision of the Supreme Court upheld by the Supreme Court of Canada. In its decision, the Supreme Court of Canada said that: | 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 1997 decision of the Supreme Court upheld by the Supreme Court of Canada. In its decision, the Supreme Court of Canada said that: | ||
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<blockquote>"... 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."</blockquote> | <blockquote>"... 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."</blockquote> | ||
===Guardianship under the '' | ===Guardianship under the ''Family Law Act''=== | ||
In addition to the usual rules dealing with guardianship under the ''Family Law Act'', members of Canada's First Nations are subject to an additional and unwelcome burden under the federal ''[http://canlii.ca/t/7vhk Indian Act]'', which allows the Minister of Indian 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 passing 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 Indian 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 passing guardianship to some other person, or when there are serious concerns about the parents' ability to properly care for the child. | ||
Where an application for guardianship of a treaty First Nation child, under ss. 208 and 209 of the ''Family Law Act'': | Where an application for guardianship of a treaty First Nation child, under ss. 208 and 209 of the ''Family Law Act'': | ||