BC Family Law for Indigenous Families is a hot topic right now for high net worth family lawyers like MacLean Law. What Family Law Means for Indigenous Families in BC is a critical issue as Indigenous band wealth skyrockets. Huge real estate projects and joint resource ventures coupled with burgeoning Federal and Provincial reconciliation deals mean family law for Indigenous families who separate is ever more important.
Introduction & History of Indigenous Peoples in BC
BC is home to more than 200 Indigenous communities, each with their own unique languages, traditions, and histories. The term ‘Indigenous’ in Canada refers to the country’s original residents, including First Nations, Inuit, and Métis peoples. Long before colonization, Indigenous peoples lived, governed, and thrived on the lands of BC. But everything changed with the arrival of Europeans – they introduced Western customs, drew up provincial borders, and imposed laws and policies designed to eradicate Indigenous lifestyles.
Vancouver BC Family Law for Indigenous Families
The most significant of these policies is the Indian Act. This Act, still in existence today, was created by the Federal Government to restrict Indigenous culture and assimilate Indigenous peoples into settler society. For instance, under the Act, Indigenous children were forcibly removed from their families and placed in Residential Schools. These schools were run by the Federal Government and their goal was to “kill the Indian in the child” by erasing Indigenous childrens’ languages, beliefs, and traditions.
BC Family Law for Indigenous Families How does it Work?
Given the complex history of Indigenous peoples in Canada, you might be wondering: Do different family laws apply to Indigenous peoples in BC? How do legal proceedings in BC differ when an Indigenous family is going through a divorce or a separation?
Although most family laws in BC apply equally to both Indigenous and non-Indigenous peoples, the courts may take specific cultural or heritage-related factors into account when making important decisions that involve Indigenous families.
BC Family Law for Indigenous Families – Child Parenting
When it comes to parenting after separation or divorce, many of the same laws apply to both Indigenous and non-Indigenous families in BC. For instance, if one or both parents are Indigenous and are unable to agree on parenting arrangements after a separation or divorce, they have access to the same legal processes available to non-Indigenous families. This means they can apply to the court for parenting orders – decisions about where the child will live, how much time they will spend with each parent, and who will be responsible for making important decisions about the child’s upbringing.
BC Family Law for Indigenous Families – Best Interests
The best interests of the child are at the core of these parenting decisions. Section 37 of the Family Law Act outlines the factors to be considered when determining what is in a child’s best interests – and while a child’s cultural identity is not explicitly stated in this section, it is regularly acknowledged by family court judges. For Indigenous children, this means their traditions, background, and connection to their community will be looked at. When making parenting arrangements then, the court will ask questions such as: Which parenting plan will help the child stay connected to their Indigenous roots? How does each parent support the child’s access to Indigenous practices and experiences? How will the parenting order best allow the child to maintain ties to their traditional territory or community?
Parenting – If Living on Reserve
Over 150,000 First Nations peoples live in BC, and about 60,000 of them reside on reserves, lands set aside by the Federal Government specifically for First Nations communities. Since each reserve is associated with a specific First Nations band or community, the people living there are generally members of that particular band and have Indian Status, although there are always exceptions. While each First Nation has different membership criteria, the federal Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) allows non-band-members and non-status-individuals to live on a reserve with a band member if they are married to them or if they are in a common law relationship with them. These federal rules apply automatically unless the specific First Nation has enacted its own community-specific matrimonial real property laws.
After a separation or divorce, if an Indigenous parent begins or continues to live on a reserve and has guardianship, parental responsibilities, or parenting time with a non-band-member and/or a non-status child, the court will likely assert that the child has a right to continue to live on the reserve with that parent.
Sometimes, though only on occasion, a band council resolution may prohibit a non-band-member parent’s ability to enter the reserve, even if their child resides there with the other parent. If this is the case, both parents should get a clear parenting order or written agreement that outlines specific details about how parenting time or contact will happen – including where and when the child will be picked up and dropped off. In most cases, this means arranging a safe, neutral meeting place off the reserve that works for both parties and that, once again, is in the child’s best interests.
BC Family Law for Indigenous Families -Support: Child & Spousal
In BC, family laws around child support and spousal support apply equally to all parents – whether Indigenous or non-Indigenous. Everyone is held to the same legal standards when it comes to supporting their children and former partners.
However, an important distinction exists when it comes to Indigenous parents who are Status Indians and who may therefore not be required to pay income taxes. In these situations, the courts may “gross up” the paying parent’s income – essentially adjusting it as if taxes were paid – to make sure child and spousal support amounts are fair.
Dividing Property on Reserve After Separation or Divorce
In most cases, dividing family property is handled under provincial or territorial law. But for families living on a First Nation reserve, there is an added layer. Since 2014, the FHRMIRA has helped clarify the extent to which partners have rights to the family home on a reserve when a relationship ends or when a partner passes away.
These laws do not just apply when both partners are Status Indians and members of the First Nation – they can also apply if both live in a family home on a reserve, but only one has status and is a band member. They cover both married couples and common-law partners (in BC, partners living together for at least two years).
Conclusion
Overall, while many aspects of family law in BC apply equally to both Indigenous and non-Indigenous parents and family members, there are important distinctions that Indigenous peoples should be aware of, such as those involving rights to family homes on a reserve. Understanding these unique considerations is crucial for Indigenous individuals who are navigating separation or divorce so that they can make informed decisions and ensure their rights – and the best interests of their children – are fully protected.
