Difference between revisions of "Indigenous Families"

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.

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.

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.

Under s. 19(1)(b) of the Guidelines, a tax-exempt payor may have his or her 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.

<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 his or her net income might really be about $30,000.</blockquote>

<blockquote>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.</blockquote>

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.  

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.

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.

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.

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.  

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.

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.