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Difference between revisions of "Indigenous Families"
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→Custody under the Divorce Act
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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 | This principle was established by the Supreme Court of Canada in ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761. The court said that "the trial judge had given careful attention to the aboriginal ancestry of [the child], together with all the other factors relevant to [the child's] best interests, and that there was no error in his decision". | ||
In another case, ''[http://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60, the Supreme Court of Canada commented that "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." | |||
In another case, ''[http://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60, the Supreme Court of Canada commented that | |||
===Guardianship under the ''Family Law Act''=== | ===Guardianship under the ''Family Law Act''=== | ||
