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The chapter will look at issues particular to Aboriginal people with respect to the care and control of children, figuring out the amount child and spousal support an Aboriginal person should pay, and the division of family assets. 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 will 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. 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 later upheld by the Supreme Court of Canada on appeal. In its decision, the Supreme Court of Canada held 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 decided in 2001, Van de Perre v. Edwards, 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 read this segment together with the chapter "Children > Custody." 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 read this segment together with the chapter "Children > Guardianship." 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 a 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 read this segment together with the chapter "Children > Access." Back to the top of this chapter. Child Support and Spousal Support Exactly the same rules apply to First Nations parents as do 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 the amount of gross income a non-exempt payor would earn which equals the net income of the exempt payor. 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 is really, for example $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 income of $40,000, 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, an Aboriginal payor who earns $40,000 per year free of income tax, would be deemed to earn $55,000 per year for the purposes of child support, and child support will be fixed at 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 draft proposed Spousal Support Advisory Guidelines, since the Advsory Guidelines works based on the same calculation of income used by the Child Support Guidelines. You should read this segment together with the sections "Child Support" and "Spousal Support." Back to the top of this chapter. Family Assets This can be a bit of a problem for Aboriginal spouses when real property is involved. In a nutshell, the 1867 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, provincal laws cannot 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 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 spouses, doesn't apply to family assets located on an Indian reserve. 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:
You should read this segment together with the section "Family Assets." Back to the top of this chapter. 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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