Difference between revisions of "Indigenous Families"

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===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 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 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]]'':

#the First Nation government must be served with notice of the application,

Line 46:

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

The same concerns with respect to a child's aboriginal ancestry that apply to determining custody under the ''Divorce Act'', will also come into play in determining access, as well as parenting time and contact under the ''Family Law Act'', especially where one of the parents is not native. First Nations children have the right to keep a connection to their culture and heritage. This may influence the parenting schedule for an aboriginal parent has, where a non-aboriginal parent may exercise a parenting schedule, and 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.

The same concerns with respect to a child's aboriginal ancestry that apply to determining custody under the ''[[Divorce Act]]'', will also come into play in determining access, as well as parenting time and contact under the ''[[Family Law Act]]'', especially where one of the parents is not native. First Nations children have the right to keep a connection to their culture and heritage. This may influence the parenting schedule for an aboriginal parent has, where a non-aboriginal parent may exercise a parenting schedule, and 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.

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 to require the other parent to take the child off reserve for access visits.

Line 70:

Dividing property can be a bit of a problem for aboriginal spouses when real property on 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 aboriginal people and reserve lands. This means that the provincial government cannot make laws that deal with aboriginal 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 reserves 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 aboriginal people and reserve lands. This means that the provincial government cannot make laws that deal with aboriginal 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 reserves 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.

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:

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:

<blockquote><tt>(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</tt></blockquote>

Line 81:

<blockquote><tt>(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.</tt></blockquote>

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.

*'''Land-Related Assets:''' 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 only allowed to have and use the land by way of a Certificate of Possession. Since Certificates of Possession are dispensed undner 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 only allowed to have and use the land by way of a Certificate of Possession. Since Certificates of Possession are dispensed undner 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 does not apply to family homes located on reserve lands.

==Getting Legal Help==

Line 101:

===Legislation===

* ~~<span style="color~~: ~~red;">bulleted list of linked legislation referred to in page<~~/~~span>~~

* ''[[Family Law Act]]''

~~FLA, DA,~~ Indian Act~~, prov~~ Interpretation ~~act CSG~~, ~~constitution act~~ 1867

* ''[[Divorce Act]]''

* ''[http://canlii.ca/t/7vhk Indian Act]''

* ''[http://canlii.ca/t/844q Interpretation Act]''

* ''[http://canlii.ca/t/80mh Federal Child Support Guidelines]''

* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Documents===

~~SSAG~~

* [http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/g-ld/spag/index.html Spousal Support Advisory Guidelines]

~~Treaties for Nisga'a, Maa~~-~~Nulth and Tsawwassen~~

===Links===

* ~~<span style="color~~: ~~red;">bulleted list of linked external websites referred to in page<~~/~~span>~~

* [http://www.lss.bc.ca/aboriginal/ Legal Services Society Website: Aboriginal section]

* ~~list~~ of ~~related public resources~~

[http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]

~~LSS~~... ~~friendship societies, DIAND~~

* [http://www.treaties.gov.bc.ca/treaties_maa-nulth.html First Nations of the Maa-Nulth Treaty

* [http://www.treaties.gov.bc.ca/treaties_tsawwassen.html Tsawwassen First Nation Treaty]

@@ Line 25: / Line 25: @@
 ===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 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 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]]'':
 #the First Nation government must be served with notice of the application,
@@ Line 46: / Line 46: @@
 ===Access, parenting time and contact===
-The same concerns with respect to a child's aboriginal ancestry that apply to determining custody under the ''Divorce Act'', will also come into play in determining access, as well as parenting time and contact under the ''Family Law Act'', especially where one of the parents is not native. First Nations children have the right to keep a connection to their culture and heritage. This may influence the parenting schedule for an aboriginal parent has, where a non-aboriginal parent may exercise a parenting schedule, and 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.
+The same concerns with respect to a child's aboriginal ancestry that apply to determining custody under the ''[[Divorce Act]]'', will also come into play in determining access, as well as parenting time and contact under the ''[[Family Law Act]]'', especially where one of the parents is not native. First Nations children have the right to keep a connection to their culture and heritage. This may influence the parenting schedule for an aboriginal parent has, where a non-aboriginal parent may exercise a parenting schedule, and 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.
 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 to require the other parent to take the child off reserve for access visits.
@@ Line 70: / Line 70: @@
 Dividing property can be a bit of a problem for aboriginal spouses when real property on 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 aboriginal people and reserve lands. This means that the provincial government cannot make laws that deal with aboriginal 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 reserves 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 aboriginal people and reserve lands. This means that the provincial government cannot make laws that deal with aboriginal 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 reserves 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.
-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:
+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:
 <blockquote><tt>(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</tt></blockquote>
@@ Line 81: / Line 81: @@
 <blockquote><tt>(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.</tt></blockquote>
-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.
 *'''Land-Related Assets:''' 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 only allowed to have and use the land by way of a Certificate of Possession. Since Certificates of Possession are dispensed undner 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 only allowed to have and use the land by way of a Certificate of Possession. Since Certificates of Possession are dispensed undner 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 does not apply to family homes located on reserve lands.
 ==Getting Legal Help==
@@ Line 101: / Line 101: @@
 ===Legislation===
-* <span style="color: red;">bulleted list of linked legislation referred to in page</span>
+* ''[[Family Law Act]]''
-FLA, DA, Indian Act, prov Interpretation act CSG, constitution act 1867
+* ''[[Divorce Act]]''
+* ''[http://canlii.ca/t/7vhk Indian Act]''
+* ''[http://canlii.ca/t/844q Interpretation Act]''
+* ''[http://canlii.ca/t/80mh Federal Child Support Guidelines]''
+* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''
 ===Documents===
-SSAG
+* [http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/g-ld/spag/index.html Spousal Support Advisory Guidelines]
-Treaties for Nisga'a, Maa-Nulth and Tsawwassen
 ===Links===
-* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
+* [http://www.lss.bc.ca/aboriginal/ Legal Services Society Website: Aboriginal section]
-* list of related public resources
+[http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information]
-LSS... friendship societies, DIAND
+* [http://www.treaties.gov.bc.ca/treaties_maa-nulth.html First Nations of the Maa-Nulth Treaty
+* [http://www.treaties.gov.bc.ca/treaties_tsawwassen.html Tsawwassen First Nation Treaty]
 {{JP Boyd on Family Law Navbox|type=chapters}}

Difference between revisions of "Indigenous Families"

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