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===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 ''[http://canlii.ca/t/1fqnq D.H. v. D.M.]'', [1999] 1 S.C.R. 761, a decision of the Supreme Court of Canada. In its decision, the court said that:
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 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 their 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.
Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying child support and spousal support.
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 their 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.
Think of it like this:
<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 their net income might really be about $30,000.</blockquote>
<blockquote>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.</blockquote>
<blockquote>Under the Guidelines, the tax-exempt payor must pay child support at a Guidelines income of what he or she they would earn to have an after-tax income of $40,000, as if taxes were paid on his or her their 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 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.
''
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.
Generally, this law applies to married couples and common-law spouse living on reserve, where at least one of them is a First Nation band member or First Nation person entitled to be band member or status Indian whose First Nation has not opted to take over responsibility for the management and control of their reserve lands and resources under the First Nations Land Management Act or manage their lands pursuant to a self-government agreement.
'''Division of the Value and Interests or Rights to the Family Home'''
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.
'''Emergency Protection Orders'''
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.
'''Death of a Spouse or Common Law Partner'''
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.
==Getting legal help==