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There are a number of issues particular to | There are a number of issues particular to Aboriginal people who are involved in a family law problem. Some of these involve cultural concerns and others stem from the federal government's exclusive jurisdiction over "native people and reserve lands." | ||
This section addresses these issues briefly. However, for more complete information I strongly encourage you to consult with a family law lawyer who has experience in Aboriginal issues. | |||
This section look at issues particular to Aboriginal people that relate to the care and control of children, calculating the amount of child and spousal support payments, and dividing family property and family debt. | |||
==The care of children== | ==The care of children== | ||
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 | 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 Aboriginal heritage. | ||
===Custody under the ''Divorce Act''=== | ===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 | 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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===Guardianship under the ''Family Law Act''=== | ===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 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 | 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 that passes 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 there is 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, | #the First Nation government must be served with notice of the application, | ||
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===Access, parenting time and contact=== | ===Access, parenting time and contact=== | ||
The same concerns | The same concerns relating to a child's Aboriginal ancestry that apply to determining custody under the ''[[Divorce Act]]'', will also come up in determining access, as well as parenting time and contact under the ''[[Family Law Act]]'', especially where one of the parents isn't Aboriginal. | ||
If a non- | Aboriginal children have the right to keep a connection to their culture and heritage. This may influence the parenting schedule an Aboriginal parent has, and where a non-Aboriginal parent may exercise a parenting schedule. 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 requires the other parent to take the child off reserve for access visits. | |||
==Child support and spousal support== | ==Child support and spousal support== | ||
Exactly the same rules apply to | Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying child support. | ||
There is, however, one significant additional issue. | |||
Aboriginal people who qualify as "status Indians" (under the federal Indian Act) may not be required to pay income tax. Because the [[Child Support Guidelines]] are based on the assumption that a payor is 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 account 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. | Under s. 19(1)(b) of the Guidelines, a tax-exempt payor may have his or her income ''grossed up'' to account 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. | ||
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==Family property and family debt== | ==Family property and family debt== | ||
Dividing property can be a bit of a problem for | 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. | |||
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: |
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