Most of BC's family laws are the same for Aboriginal and non-Aboriginal people, but sometimes the courts have to look at someone's Aboriginal heritage or life circumstances when they're making a decision.
For example, the court will think about someone's Aboriginal background and life and family circumstances when it's making decisions about certain legal issues, such as:
- property,
- child support,
- guardianship,
- parenting arrangements, and
- contact with a child.
And when the court looks at the best interests of the child when it's making parenting orders, it might also look at a child's:
- heritage,
- traditions, and
- culture.
Here are some of the main differences in family law for Aboriginal people.
Parenting after separation or divorce
Many of the laws about parenting after separation or divorce are the same for both Aboriginal and non-Aboriginal families.
For example, you can get the usual court orders related to parenting if you or your children's other parent are Aboriginal and you:
- have separated, and
- can't agree about the care of your children.
But when the court makes its decisions, it might also think about your children's Aboriginal:
- identity,
- heritage,
- traditions, and
- culture.
It would do this when it's looking at, for example:
- what parenting arrangement will best help your children preserve their culture and identity, and
- where the children's traditional territory is.
But this doesn't mean this is the only thing the court will think about it when it looks at the best interests of the children.
And if you want to try to sort out arrangements for your children without going to court, you might be able to get help from:
- an Elder,
- a community leader,
- your band, or
- another Aboriginal family resource.
Parenting orders
Family law says all children have a right to stay connected with their culture and heritage.
When the court's making decisions about parenting arrangements, one of the things it'll look at are what practices or cultural experiences each parent will make available to the children. This means the court will treat a child's Aboriginal ancestry as part of the best interests of the child.
Even with child protection cases, the law says a child's Aboriginal heritage should be:
- specifically addressed,
- preserved, and
- promoted.
If you live on reserve and have guardianship of, parental responsibilities for, or parenting time with your children, but your children aren't band members:
- the court might still say your children have a right to continue to live with you on reserve, and
- when the court decides about parenting and contact, it might consider your children's Aboriginal ancestry.
Sometimes a band council resolution means a non-band member can't go onto the reserve to see their children. This doesn't happen often, but 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 pickups can happen off reserve.
Guardianship
When the court makes decisions about guardianship, it will pay special attention to your children's:
- heritage,
- traditions, and
- culture.
This means the court will look at other cultures that are part of your children's heritage as well as their Aboriginal heritage.
The court will look at the cultural practices or contacts that you and the other parent can share with your children, rather than the culture itself.
As well as 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 if infant children of Aboriginal people are entitled to any property, the Minister of Indigenous and Northern Affairs Canada can:
- administer the property,
- provide for the administration of the property, or
- appoint guardians to administer the property.
In BC, an infant is someone under the age of 19.
This means the government can deal with the legal side of things if children with Aboriginal parents inherit property when their parents die.
But Indigenous and Northern Affairs Canada should only step in like this if both parents die without leaving a will that passes guardianship to some other person.
Child and spousal support
The same rules about child and spousal support apply to both Aboriginal and non-Aboriginal parents.
But the court might gross up the income of the parent paying child support to make sure the children get an appropriate amount of child support if an Aboriginal parent:
- pays child support, and
- qualifies as a status Indian under the Indian Act, and
- might not have to pay income taxes.
The same process applies to spousal support.
Property on reserve
Provincial or territorial law usually deals with the division of family property. But since December 16, 2014, the Family Homes on Reserves and Matrimonial Interests or Rights Act has set out who can stay in the family home if a relationship breaks up or someone's partner dies.
These laws apply to you if:
- you live on a First Nation reserve, and
- you or your partner are a member of the First Nation or a status Indian, and
- you've been living with your partner for at least one year (you might call yourselves common-law partners), or
- you're married (spouses).
The 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 might still be able to stay in the family home. See Your home on reserve to find out more about this.
Who owns the family home?
A court can add the other person's name as an owner of the family home if:
- you and your partner are from the same First Nation where your home is, but
- only one of you has your name on the Certificate of Possession.
This means the home can't be transferred or sold without both of you giving 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). See Your home on reserve to find out more about this.
Find out more
The more you know, the more confident you'll feel if you have to deal with any of the issues we've talked about here.
Here are some ways to find out more about family law and how it affects Aboriginal people. See:
- Our Aboriginal Legal Aid in BC website for information about:
- Your family and the law
- Your family's rights
- Aboriginal delegated agencies
- Mediation
- Court orders and hearings
- The Extended Family Program
- Parents' Rights, Kids' Rights: A Parent’s Guide to Child Protection Law in BC
- Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce
If you have a family law problem, it's a good idea to get help from a lawyer. See Tips about getting legal help for where to find a lawyer.