Aboriginal people and family law issues
If you're Aboriginal,* legal issues concerning property, child support, custody, guardianship, and access get specific consideration in family court. For example, when it considers "the best interests of the child," the court may take the child's heritage, traditions, and culture into account when making decisions about custody, guardianship, and access orders. (This heritage could be Aboriginal or of other cultures in cases where the court is considering custody and guardianship. The court will look at the specific cultural practices or contacts that each parent can provide to the child, rather than the culture itself.) As for property, land on reserve or a married couple's home on reserve is treated differently because it comes under the Indian Act and not provincial laws.
What follows is a brief overview of the legal issues as they apply to Aboriginal people. If you have a family law problem, however, it's a good idea to get the help of a lawyer. See Who can help for information on how to find a lawyer.
Caring for the children
Many of the legal considerations for custody, access, and guardianship of children are the same for Aboriginal families as non-Aboriginal families. The courts may also take into account a child's Aboriginal heritage, traditions, and culture when it makes its decisions. However, these don't outweigh other factors considered by the court regarding the "best interests of the child." Some Aboriginal bands have also passed their own laws about these issues.
If Aboriginal parents separate and can't agree about the care of their children, they can get the usual court orders for custody, access, guardianship, and child support. (Even when parents do agree on these issues, they may decide to get court orders.)
Note also that outside the court process, the services of an elder, community leader, the band, or other Aboriginal family resource may be available to help Aboriginal parents work out arrangements for their children.
Other considerations for Aboriginal children are described below.
Custody
Under family laws, all children, including Aboriginal children, have a right to stay connected with their culture and heritage. In custody matters between parents, it will be the actual practices or cultural experiences each parent makes available to the child that matter. When deciding custody issues, a court will consider a child's Aboriginal ancestry as part of the "best interests of the child." In child protection cases, the law requires that a child's Aboriginal heritage be specifically addressed, and preserved and promoted as much as possible.
If you have custody of your children and you live on reserve, the courts may uphold the children's right to continue to live with you even if they are not band members.
Access
When the courts determine access between parents, they can also consider a child's Aboriginal ancestry, especially if one parent is not Aboriginal. The ability of each parent to keep a child in contact with his or her culture may influence:
- the amount of access an Aboriginal parent has,
- where a non-Aboriginal parent can have access to his or her child, and
- whether another family member or elder can also have access if they have a significant relationship with the child.
In rare cases, a band council resolution may restrict a non-Aboriginal or non-band member parent from going onto the reserve to see his or her child. If this is your situation, it's worthwhile getting an access order or agreement that allows you to take the child off reserve for access visits.
Guardianship
In addition to the usual rules dealing with guardianship, which state that parents can be presumed to be joint guardians of their children and their property, Aboriginal people are subject to the Indian Act. The act says the Minister of Indian and Northern Affairs may administer, provide for the administration of, or may appoint guardians to administer any property infant children of "Indians" are entitled to.
Child and spousal support
The same rules regarding child and spousal support apply to Aboriginal parents as non-Aboriginal parents. But one important difference applies to Aboriginal parents paying child support who qualify as "status Indians" under the Indian Act and who may not be required to pay income taxes. In these cases, the court will "gross up" the income of the parent paying child support to ensure that the children get an appropriate amount of child support. The same process applies to spousal support.
Property
The provincial law that usually deals with the division of "family assets" (property) when a couple separates does not apply to property on reserve, which comes under the federal Indian Act. That means provincial law can't be used to change ownership or possession of land on reserve, or to get a court order for interim occupancy of the family home (which would allow a spouse to stay in the home temporarily). However, a spouse may apply for a compensation order based on the value of the properties held by the other spouse. It's a good idea to get the help of a lawyer when dealing with these matters.
Note: Some Aboriginal people are taking control of their own reserve lands by adopting a land code. With this code, a First Nation can regulate how reserve land is distributed when couples separate or divorce.
Income assistance
The break up of a relationship can cause many money worries. For information on income assistance (welfare) as it applies to Aboriginal people living on reserve in BC, read Social Assistance on Reserve in British Columbia (available on the LSS website). This booklet answers questions about what benefits are available, who can get welfare on reserve, and how to get welfare on reserve. If you're not living on reserve and need information about income assistance, see Your Welfare Rights on the LSS website.
* The term Aboriginal includes status Indians, non-status Indians, Métis, and Inuit. Note, however, that the sections that refer to the Indian Act apply only to status Indians. These sections also apply to non-Aboriginal people who have children with status Indians.
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