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The chapter will look at issues particular to Aboriginal people with respect to the care and control of children, calculating the amount child and spousal support some Aboriginal people should pay, and the division of family assets. I. The Care and Control 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 both. In addition to the usual factors, however, the court will also look at a few other issues related to the child's native roots. A. Custody In addition to the usual factors governing an award of child custody under s. 16 of the Divorce Act and s. 24 of the Family Relations 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., a 1997 decision of the BC 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 from 2001, 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." One last point: if you live on your band's reserve and have custody of your children, they can continue living with you even if they aren't band members themselves. You should also read the chapter Children > Custody for a more complete picture of the law about custody. B. Guardianship In addition to the usual rules dealing with guardianship under the Family Relations 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 Indian 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 passing guardianship to some other person, or when there are serious concerns about the parents' ability to properly care for the child. You should also read the chapter Children > Guardianship for a more complete picutre of the law on guardianship. C. Nisga'a and Other Treaty Nations Two relatively new sections of the Family Relations Act provide that when an application for custody and guardianship is made in respect of a Nisga'a child or another treaty First Nation child, the First Nations government must be given notice of the application and will be able to intervene in the application. 22.1 (1) If an application is made to a court under this Part or Part 3 in respect of the guardianship or custody of a Nisga'a child (a) the Nisga'a Lisims Government must be served with notice of the proceeding, and(b) the Nisga'a Lisims Government has standing in the proceeding as provided in paragraph 94 of the Nisga'a Government Chapter of the Nisga'a Final Agreement. (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, any evidence or representations in respect of Nisga'a laws and customs as provided in paragraph 94 of the Nisga'a Government Chapter of the Nisga'a Final Agreement. (3) As provided in paragraph 95 of the Nisga'a Government Chapter of the Nisga'a Final Agreement, the participation of the Nisga'a Lisims Government in a proceeding to which subsection (1) applies must be in accordance with the applicable Rules of Court and does not affect the court's ability to control its process. 22.2 (1) If an application is made to a court under this Part or Part 3 in respect of the guardianship or custody of a treaty first nation child and the final agreement of the treaty first nation of which the child is a treaty first nation child so provides, the treaty first nation (a) must be served with notice of the proceeding, and(b) has standing in the proceeding. (2) Subject to any limitations or conditions set out in the final agreement, 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, any evidence or representations in respect of the laws and customs of the treaty first nation. D. Access The same concerns with respect to a child's Aboriginal ancestry which apply to determining custody, will also come into play in determining access, especially where one of the parents is not native. First Nations children have the right to keep a connection to their culture and heritage. This may influence the amount of access an Aboriginal parent has, where a non-Aboriginal parent may exercise access, and it may also result in the court extending acess to a third-party, such as another family member or an elder, who will keep the child in touch with his or her culture. If a non-Aboriginal or 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 to require the other parent to take the child off reserve for access visits. You should also read the chapter Children > Access for a more complete understanding of the law about access. Back to the top of this chapter. II. Child Support and Spousal Support Exactly the same rules apply to First Nations parents as apply to non-Aboriginal parents with respect to child support. There is, however, one significant additional issue which may have to be dealt with. Certain native people, usually those who qualify as "status Indians" under the federal Indian Act and live on reserve, may be exempt from paying income taxes. For the purposes of fixing a payor's income for child support purposes, this means that the standard method of calculating income under the Child Support Guidelines would give a distorted result, since the Guidelines are based on the assumption that the payor is paying income tax on his or her earnings. Under s. 19(1)(b) of the Guidelines, a tax-exempt payor may have his or her income "grossed up" to reflect this tax advantage that other payors don't enjoy. 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 the Guidelines, at $55,000. In this example, then, 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 amout 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 Advsory Guidelines works based on the same calculation of income used by the Child Support Guidelines. You should also read the sections Child Support and Spousal Support for a more complete picutre of the law on guardianship. Back to the top of this chapter. III. Family Assets This can be a bit of a problem for Aboriginal spouses when real property on reserve is involved. In a nutshell, the Constitution Act, 1867 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, provincal laws do not apply to 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 Relations Act can't be used to divide an interest in real property on reserve lands. That was a somewhat complicated way of saying that the provincial Family Relations Act, the only piece of legislation that divides assets between married spouses, doesn't apply to property located on a 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 only gives the owner the right to occupy the land but not the legal title to that land. These are the general rules about family assets and the court's authority under the Family Relations Act.
When the property at issue belongs to a treaty First Nation and is capable of being transferred from one person to another as a result of the treaty, the First Nation government may have standing in the action. A relatively new section of the Family Relations Act, s. 66.1, says this: (1) If the final agreement of a treaty first nation so provides, in proceedings under this Part in which (a) a parcel of the treaty lands of a treaty first nation that is entitled under its final agreement to make laws restricting alienation of its treaty lands is at issue, and(b) at least one spouse is a treaty first nation member of the treaty first nation, that treaty first nation has standing in the proceeding. (2) In a proceeding to which subsection (1) applies, the court must consider, among other matters, any evidence or representations in respect of 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 applicable Rules of Court and does not affect the court's ability to control its process. You should also read the section Family Assets for a more complete picture of the law on family assets. Back to the top of this chapter. IV. Legal Help This chapter is only a brief sketch of some of the special issues native 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 are advised to seek the advice of a lawyer. Additional legal help may be had from your local Friendship Centre or Native Community Law Office. Look for these agencies in your telephone directory under "Legal Aid, Legal Services Society." Back to the top of this chapter. Site Navigation
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