If you're Aboriginal, certain legal issues get specific consideration in family court:
- 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 Aboriginal heritage, traditions, and culture.
Caring for your children after separation or divorce
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:
- Aboriginal identity,
- Aboriginal heritage,
- traditions, and
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:
- an elder,
- a 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 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 live on reserve
If you 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 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:
- 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 Crown-Indigenous Relations and Northern Affairs Canada may:
- provide for the administration of, or
- appoint guardians to administer
any property infant children of "Indians" are entitled to.
Crown-Indigenous Relations 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.
Child and spousal support
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:
- 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.
Child protection and your child's Aboriginal identity
BC law has special terms about the care of Aboriginal children in child protection situations. The law recognizes:
- Preserving (protecting and keeping) their cultural identity is essential to the safety and well-being of Aboriginal children.
- Preserving their cultural identity is necessary when planning for an Aboriginal child's care.
- Aboriginal people and the Aboriginal community should be involved in the planning and delivery of services to Aboriginal families and their children.
- Appropriate Aboriginal organizations must be notified of child protection proceedings that involve Aboriginal children.
- If appropriate, designated representatives of bands, Aboriginal communities, treaty First Nations, and the Nisga'a Lisims government have the right to become a party to a child protection hearing for a child from their community. A designated representative is someone who is chosen to speak for others.
- If the ministry takes your child from your home, it should first try to place your child with your family or another Aboriginal family.
Property on reserve
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:
- 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 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.
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, the court 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.
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 Income 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, download How to Apply for Welfare.
Family Law Duty Counsel (LSS) — Lawyers at courthouses who provide advice to people representing themselves in court, and guide them to fill out their forms.
Family Law advice lawyers (LSS) — Lawyers at Family Justice Centres and Justice Access Centres who provide advice about parenting time, custody, access, support, and agreements to people going through a separation or divorce.
Family LawLINE (LSS) — Telephone service where family lawyers provide advice about parenting time, custody, access, support, and agreements.
BC Association of Friendship Centres — Find a friendship centre in your area
BC211 — Free confidential referrals to help and information — Call 211
Ministry of Indigenous Relations and Reconciliation — See their Guide to Indigenous Organizations and Services in British Columbia for organizations that can help
PovNet — Information about poverty issues and links to organizations that can help
Access Pro Bono Law Clinics — Free legal help
Carole James, MLA, Community Office — Free legal clinic — Call 250-412-7794
Department of Justice Community-based Justice Programs — Alternatives to mainstream justice processes
First Nations and Métis Outreach Program (The Law Centre) — Free legal help — Victoria
Native Courtworkers and Counselling Association of BC— Culturally appropriate services to Aboriginal people involved in the criminal justice system — Call 604-985-5355 (Greater Vancouver) or 1-877-811-1190 (no charge outside Greater Vancouver)
Bella Coola Legal Advocacy Program — 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 — Call 250-412-7794