Difference between revisions of "Indigenous Families"

There are a number of issues particular to members of Canada's First Nations involved in a family law problem, some of which involve cultural concerns and others which stem from the federal government's exclusive jurisdiction over native people and reserve lands. This page will address these issues briefly, however for more complete information I strongly encourage you to consult with a family law lawyer.

The page will look at issues particular to aboriginal people with respect to the care and control of children, calculating the amount of child and spousal support payments, and dividing family property and family debt.

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.

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 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]]'':

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.

Exactly the same rules apply to First Nations parents as apply to non-aboriginal parents with respect to child support. There is, however, one significant additional issue which may have to be dealt with. Certain native people, usually those who qualify as "status Indians" under the federal ''Indian Act'' and live on reserve, may be exempt from paying income taxes. For the purposes of fixing the income of a person paying child support, a ''payor'', this means that the standard method of calculating income under the [[Child Support Guidelines]] would give a distorted result, since the Guidelines are based on the assumption that the payor is paying income tax on his or her earnings.

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.