Indigenous Families

Aboriginal people who are dealing with a family law problem face some particular issues. Some involve cultural concerns while others stem from the federal government's Indian Act.

This section addresses these issues briefly. However, for more complete information I strongly encourage you to consult with a family law lawyer who has expertise in Aboriginal law.

This section look at issues specific 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

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

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 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:

"... 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, 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."

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 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 there is an application for guardianship of a treaty First Nation child, under ss. 208 and 209 of the Family Law Act:

1. the First Nation government must be served with notice of the application,
2. the First Nation government standing in the court proceeding, and
3. the court must consider the laws and customs of the First Nation in making its decision.

Section 208 applies to Nisga'a children; s. 209 deals with other treaty First Nation children and says this:

(1) If an application for guardianship is made respecting a treaty first nation child and the final agreement of the treaty first nation to which the child belongs provides for it, the treaty first nation

(a) must be served with notice of the proceeding, and

(b) has standing in the proceeding.

(2) In a proceeding to which subsection (1) applies, the court must consider, in addition to any other matters it is required by law to consider and subject to any limits or conditions set out in the final agreement, any evidence or representations respecting the laws and customs of the treaty first nation.

Under s. 29.1 of the provincial Interpretation Act, the present treaty First Nations are the Tsawwassen First Nation and the Maa-nulth First Nations.

Remember that the only time an application must be made for guardianship is where a person, including a parent, is not presumed to have guardianship under s. 39 and has not been appointed as a guardian by someone's will or Form 2 of the Family Law Act Regulation.

Access, parenting time and contact

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.

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

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) and who live on reserve 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.

Think of it like this:

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.

A tax-exempt payor making $40,000, on the other hand, would actually keep the whole $40,000 since no income taxes are paid on the $40,000. This, according to the Guidelines, is unfair, and the exempt payor's income should be re-calculated upwards.

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.

In this example, a tax-exempt payor who earns $40,000 per year free of income tax, might be deemed to earn $55,000 per year for the purposes of child support, and child support will be calculated based on a Guidelines income of $55,000 per year. Grossing-up a payor's income is intended to ensure that the children benefit from the amount of support available based on an a gross income equivalent to what a non-exempt payor would earn to have the same net income.

The same sort of grossing-up process will apply when determining how much spousal support a tax-exempt payor should have to pay, particularly if the amount payable is being determined using the Spousal Support Advisory Guidelines, since the Advisory Guidelines use the same approach to calculate income as the Child Support Guidelines.

Family property and family debt

Dividing property can be a bit of a problem for Aboriginal spouses when real property on reserve is involved.

In a nutshell, the Constitution Act gives the federal government exclusive authority over laws relating to First Nations people and reserve lands.

This means that the provincial government cannot make laws that deal with First Nations 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:

(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

(a) the treaty first nation is entitled under its final agreement to make laws restricting alienation of its treaty lands,

(b) a parcel of its treaty lands is at issue, and

(c) at least one spouse is a treaty first nation member of the treaty first nation.

(2) In a proceeding to which subsection (1) applies, the Supreme Court must consider, among other matters, any evidence or representations respecting the applicable treaty first nation's laws restricting alienation of its treaty lands.

(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.

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.
• 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

This section is only a brief sketch of some of the special issues that Aboriginal people might have to deal with in the course of a family law dispute. If you have a problem touching on one of these areas, you should get advice from a lawyer.

Additional legal help may be had from your local Friendship Centre or Native Community Law Office. Look for these agencies on http://www.clicklaw.ca using the HelpMap feature to find help near to where you are.

Page resources and links

Legislation

• Family Law Act
• Divorce Act
• Indian Act
• Interpretation Act
• Federal Child Support Guidelines
• Constitution Acts, 1867 to 1982

Documents

• Spousal Support Advisory Guidelines

Links

• Legal Services Society Website: Aboriginal section
• Clicklaw Resources on Aboriginal Law
• Nisga'a Final Agreement and Background Information
• First Nations of the Maa-Nulth Treaty
• Tsawwassen First Nation Treaty