Aboriginal people and family law issues
If you're Aboriginal, certain legal issues get specific consideration in family court, including:
- child support,
- parenting arrangements,
- and contact with a child.
For example, when the court considers the best interests of the child when making parenting orders, it may take into account your child's:
- traditions, and
Tip: If you have a family law problem, it's a good idea to get a lawyer to help you. See Who can help for information on how to find a lawyer.
Many of the legal considerations for parenting after separation or divorce are the same for Aboriginal families as non-Aboriginal families.
When the courts makes its decisions, it may also take into account your child's:
- Aboriginal identity,
- Aboriginal heritage,
- traditions, and
However, the fact that a child is Aboriginal doesn't outweigh other factors the court considers regarding the best interests of the child.
If Aboriginal parents separate and can't agree about the care of their children, they can get the usual court orders related to parenting.
Aboriginal parents working out arrangements for their children outside the court process may be able to get help from:
- an elder,
- community leader,
- the band, or
- another Aboriginal family resource.
Other considerations for Aboriginal children are described below.
Under family laws, all children — including Aboriginal children — have a right to stay connected with their culture and heritage. When it's making decisions about parenting arrangements, what matters to the court is the actual practices or cultural experiences each parent will make available to the child. The court will consider a child's Aboriginal ancestry as part of the best interests of the child.
Tip: For more information about orders related to parenting, see our fact sheet Parenting apart.
In child protection cases, the law requires that, as much as possible, your child's Aboriginal heritage is:
- specifically addressed,
- preserved, and
If you live on reserve
If you live on reserve and you have:
- parental responsibilities,
- parenting time, or
of your children, the court may uphold your children's rights to continue to live with you even if they're not band members.
When the court decides about parenting and contact, it can consider your child's Aboriginal ancestry.
In rare cases, a band council resolution may restrict a non-band member from going onto the reserve to see their child. If this is your situation, it's a good idea to get an order or agreement for parenting or contact that sets out where drop-offs and pick-ups can happen off reserve.
When the court makes decisions about guardianship, it may take into account your child's:
- traditions, and
However, your child's heritage could be Aboriginal or additional cultures. The court will look at specific cultural practices or contacts that each parent can provide to your child, rather than the culture itself.
In addition to the usual rules dealing with guardianship, status Indians (or non-Aboriginal people who have children with status Indians) are subject to the Indian Act. The Act says the Minister of Indigenous and Northern Affairs Canada may:
- provide for the administration of, or
- appoint guardians to administer
any property infant children of "Indians" are entitled to.
Indigenous and Northern Affairs Canada should only step in in this way if both parents die without leaving a will that passes guardianship to some other person.
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
- 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 make sure the children get an appropriate amount of child support.
The same process applies to spousal support.
Important: As of December 16, 2014 there are new laws that set out who can stay in the family home on reserve when you or your partner break up or your partner dies. For detailed information, see Your home on reserve on our Aboriginal Legal Aid in BC website.
The provincial law usually deals with the division of family property. But as of December 16, 2014, the Family Homes on Reserves and Matrimonial Interests or Rights Act sets out who can stay in the family home if your relationship breaks up or your partner dies. These laws may apply to you if:
- you live on a First Nation reserve,
- at least one of you is a member of the First Nation or a status Indian, and
- you've been living with your girlfriend or boyfriend for at least a year (you're common law partners), or
- you're married (spouses).
The new laws apply even if only one of you is a First Nation member or a status Indian. For example, if your partner is a First Nation member and you're not, you may still be able to stay in the family home.
Who owns the family home?
If you and your partner are from the same First Nation where the home is located and the Certificate of Possession is only in one of your names, you can add the other person's name. This means the home can't be transferred without your permission.
Who can sell the interest in the home?
You or your partner can't sell any interest in the home without the other person's consent (agreement). For more information, see Your home on reserve on the Aboriginal Legal Aid in BC website.
The breakup of a relationship can cause many money worries. The rules regarding income assistance are different depending on whether you live on reserve or off reserve.
For information on income assistance (welfare) for people living on reserve in BC, see Social Assistance on Reserve, which answers questions about:
- what benefits are available,
- who can get welfare on reserve, and
- how to get welfare on reserve.
If you don't live on reserve and need information about income assistance, see Your Welfare Rights on the LSS website.
The following resources may help you and your family:
- Our Aboriginal Legal Aid in BC website:
- The Aboriginal Child Protection Wallet Card
- Our poster outlining the Aboriginal Child Protection Process
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