If you're Aboriginal, certain legal issues get specific consideration in family court:
For example, when the court considers the best interests of the child when making parenting orders, it may take into account your child's Aboriginal heritage, traditions, and culture.
Many of the legal considerations for parenting after separation or divorce are the same for Aboriginal families as non-Aboriginal families.
When the court makes its decisions, it may also take into account your child's:
But the fact that a child is Aboriginal doesn't outweigh other factors the court considers about 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:
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 are 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.
If you you live on reserve and you have:
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 with a child, it can consider your child's Aboriginal ancestry.
In rare cases, a band council resolution may restrict a non-band member parent 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 time 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:
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:
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 about child and spousal support apply to Aboriginal parents as non-Aboriginal parents. But one important difference applies to Aboriginal parents paying child support who:
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.
BC law has special terms about the care of Aboriginal children in child protection situations. The law recognizes:
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.
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:
The new law applies even if only one of you is a status Indian or a First Nation member. 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.
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, the court can add the other person's name. This means the home can't be transferred without your permission.
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.
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 for people living on reserve in BC, see Social Assistance on Reserve, which answers questions about:
If you don't live on reserve and need information about income assistance, see Your Welfare Rights.
BC211 — Free confidential referrals to help and information — Call 211
BC Association of Friendship Centres — Find a friendship centre in your area
Ministry of Aboriginal Relations and Reconciliation — See their A Guide to Aboriginal Organizations and Services in British Columbia for organizations that can help
PovNet — Information about poverty issues and links to organizations that can help
Aboriginal community legal workers — Give legal information and limited advice services
Clicklaw — HelpMap — Find services in your area for family law problems
Family Law in BC — Who can help? — A list of services that can help with family law problems
Legal information outreach workers — Give legal information and provide referrals
Access Pro Bono Law Clinics — Free legal help
Carole James, MLA, Community Office — Free legal clinic, including family matters — Call 250-412-7794
Family duty counsel — Free legal advice — Kwadacha and Tsay Key Dene — Call 1-877-601-6066 (no charge)
Family duty counsel — Free legal advice on family matters — Williams Lake, call 778-395-6200
First Nations and Métis Outreach Program (The Law Centre) — Free legal help, including family matters — Victoria
SHED Legal Advocacy Services — Free legal help — Bella Coola
UBC Indigenous Community Legal Clinic — Free legal help on various legal matters — 604-684-7334 (Greater Vancouver) or 1-888-684-7334 (call no charge)
Upper Skeena Counselling & Legal Assistance Society — Free legal help — Hazelton
Victoria Native Friendship Centre — Free legal clinic, including family matters — Call 250-412-7794