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Difference between revisions of "Indigenous Families"
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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". | 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 | In another ruling, ''[http://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60, the Supreme Court of Canada concluded that: | ||
* racial identity is but one factor that may be considered in determining someone's personal identity, | |||
* the relevancy of this factor depends on the context, and | |||
* 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''=== | ===Guardianship under the ''Family Law Act''=== | ||
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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. | 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 there is an application for guardianship of a treaty First Nation child in a family law court proceeding, under | Where there is an application for guardianship of a treaty First Nation child in a family law court proceeding, under sections 208 and 209 of the ''[[Family Law Act]]'': | ||
*the First Nation government must be served with notice of the application, | *the treat First Nation's government must be served with notice of the application, | ||
*the First Nation government has standing in the court proceeding, and | *the treaty First Nation government has standing in the court proceeding, and | ||
*the court must consider the laws and customs of the First Nation in making its decision. | *the court must consider the laws and customs of the treaty First Nation in making its decision. | ||
Section 208 applies to Nis<u>g</u>a'a children; | (To have ''standing'' means, in legal terms, that the court recognizes your right to be heard and bring claims based upon your stake in the outcome of a legal proceeding.) | ||
Section 208 applies to Nis<u>g</u>a'a children; section 209 deals with other treaty First Nation children and says this: | |||
<blockquote><tt>(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</tt></blockquote> | <blockquote><tt>(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</tt></blockquote> | ||
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<blockquote><tt>(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.</tt></blockquote> | <blockquote><tt>(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.</tt></blockquote> | ||
Section 29.1 of the provincial ''[http://canlii.ca/t/844q Interpretation Act]'' defines the term "treaty first nation". The nations that currently meet this definition are the Tsawwassen First Nation and the Maa-nulth First Nations. | |||
Remember | Remember, the only time an application must be made for guardianship is where a person, including a parent: | ||
* does not meet the general conditions for being a child's guardian under section 39 of the ''[[Family Law Act]]'', and | |||
* has not been appointed as a guardian by a guardian's will or a Form 2 Appointment under the [http://canlii.ca/t/8rdx Family Law Act Regulation]. | |||
===Access, parenting time and contact=== | ===Access, parenting time and contact=== | ||
The | The concerns around a child's Aboriginal ancestry are the same whether determining ''custody'' under the ''[[Divorce Act]]'' or determining ''access, parenting time and contact'' under the ''[[Family Law Act]]''. This is especially important where one of the parents is not Aboriginal. | ||
Aboriginal children have the right to keep a connection to their culture and heritage. This may influence the | Aboriginal children have the right to keep a connection to their culture and heritage. This may influence the parenting time schedule or contact that an Aboriginal parent has, and affect where a non-Aboriginal parent may exercise parenting time or contact. The fact that a child has Aboriginal ancestry may also result in the court extending contact to a third party, such as an elder or another family member who shares the Aboriginal ancestry with the child, and who will keep the child in touch with 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 | 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 access order or agreement requires the other parent to take the child off the reserve for access visits. | ||
==Child support and spousal support== | ==Child support and spousal support== | ||
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Exactly the same rules apply to Aboriginal parents as apply to non-Aboriginal parents when it comes to paying 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 and spousal support. | ||
There is, however, one significant | There is, however, one significant 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 a 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 for payors who work on a reserve and do not pay income tax. | ||
Under | Under section 19(1)(b) of the Guidelines, a tax-exempt payor may have 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 same amount as a tax-exempt person's income, once income taxes are taken off. | ||
Think of it like this: | Think of it like this: | ||
<blockquote>Say a | <blockquote>Say a taxed payor makes a gross income of $40,000 per year. This is the taxed payor's income for the purposes of the Guidelines. Now, the taxed payor also pays taxes on that income, so 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>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 tax-exempt payor's income should be re-calculated upwards.</blockquote> | ||
<blockquote>Under the Guidelines, the tax-exempt payor must | <blockquote>Under the Guidelines, the tax-exempt payor must calculate support payments using a higher income figure than they are actually paid. The higher income figure would be whatever a taxed payor would need to earn to have an after-tax income of $40,000. Say a taxed payor would have to earn $55,000 to have a net income of $40,000. In this example, the tax-exempt payor's income is then set at $55,000 for the purposes of calculating child support using the Guidelines.</blockquote> | ||
Grossing-up a payor's income is intended to ensure that the children benefit from the amount of support available based on a gross income equivalent to what a taxed payor would have to 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 | 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. The Advisory Guidelines use the same approach to calculate income as the Child Support Guidelines. | ||
==Family property and family debt== | ==Family property and family debt== | ||
