Are you looking for a First Nation divorce?

Divorce is a difficult process for anyone, but for First Nations couples, there are unique challenges that must be addressed. Divorce proceedings for First Nations people are subject to federal and provincial laws as well as traditional customs and practices that vary between different communities.

As a result, navigating a First Nations divorce often involves dealing with complex legal and cultural issues.

One of the key challenges in First Nations divorce proceedings is ensuring that the process respects traditional customs and practices. Many First Nations communities have their own marriage and divorce laws and traditions, and it is crucial to be mindful of these cultural differences.

The Role of Traditional Laws and Customs in Divorce Proceedings

Some communities may require the involvement of elders or community leaders before granting a divorce, while others may have specific rituals or ceremonies that must be followed.

It is essential for legal professionals to be knowledgeable about these traditions and work closely with their clients to ensure that their rights and interests are protected, while also respecting their community’s cultural practices.

Another challenge in First Nations divorce proceedings is ensuring that the process is equitable and fair. Due to the historical and ongoing impacts of colonialism, First Nations people often face systemic discrimination and disadvantages within the legal system. This can include issues such as poverty, lack of access to legal resources, and language barriers.

To ensure that First Nations people have access to justice and receive fair treatment in divorce proceedings, legal professionals need to be mindful of these issues and work with their clients to overcome these obstacles.

Navigating the Intersection: Canadian Family Law vs. First Nation Practices

In addition to cultural and systemic challenges, there are legal issues to consider in First Nations divorce proceedings, such as the division of property.

While Canadian law typically divides marital property equally between spouses, there may be specific provisions in federal or provincial law that apply to First Nations property, such as land held under a treaty or reserve land. In such cases, legal professionals must be knowledgeable about the relevant laws and work with their clients to ensure their property rights are protected.

Child custody is another significant issue in First Nations divorce proceedings. Once again, cultural and traditional practices must be considered when determining custody arrangements, such as involving extended family members or community leaders. First Nations people may also have specific rights under federal or provincial law regarding child welfare and protection.

For instance, the Indian Act gives First Nations people the right to decide on their children’s care and upbringing, and this can have important implications for custody arrangements during a divorce.

First Nations divorce proceedings

It is essential to note that First Nations divorce proceedings can often be more complex and time-consuming than those involving non-Indigenous couples.

This is partly due to the unique legal and cultural issues that need to be considered and also because of the broader historical and ongoing challenges faced by First Nations people in Canada.

As a result, legal professionals must be patient and understanding when working with First Nations clients, taking the time to build trust and rapport with them to ensure a smooth and stress-free divorce process.

First Nations divorce proceedings can be challenging and complicated, and legal professionals must be knowledgeable about the unique legal and cultural issues involved.

Key Differences: Settling Matrimonial Property Rights in Indigenous Contexts

By respecting traditional customs and practices, addressing systemic barriers, and advocating for their client’s rights and interests, lawyers and other legal professionals can ensure that First Nations people have access to justice and receive fair treatment in the divorce process.

Divorce can be complicated. But being a minority can make things even more complex. An example would be the First Nations using their status to influence family court disputes.

A First Nations father who asked a family law court to vary a parenting schedule drew on government and court decisions that acknowledged his daughters’ birthright.

The family court agreed the girls’ First Nations heritage, community and language were pivotal to their development. But ultimately, the judge ruled, the “sole consideration” in custody and access decisions remains in the best interests of the child.

Your Birthright Matters

As the family law court confirmed:

“The child’s best interests will normally reflect the importance of the child maintaining a connection with their First Nation’s heritage, as well as other factors unique to the child in their particular circumstances.”

After an initial order in 2012, “Tommy” and his ex-spouse “Jan”  were divorced in a family law court in 2016. He lived in Ontario, while she made her home 65 kilometres away, just across the border in Quebec.

Their daughters, nine and 13, lived with their mother. Jan was non-Aboriginal and supported Tommy’s desire to keep their daughters engaged with their First Nations heritage.

Children in the Mix: Custody and Support Considerations for First Nation Couples

What Tommy sought was a change in the girls’ custodial situation. He wanted his daughters to either live with him or attend school in Ontario. He also asked the court for more access on weekends to allow the girls to attend Aboriginal Day every June 21 (now known as National Indigenous Peoples Day). It was said it’s important to go to powwows in or near his home.

Jan resisted and petitioned to have what she considered Tommy’s too-frequent requests to vary court orders blocked. She asked that Tommy be required to seek the court’s leave before applying for variations.

First Nation Divorce

The court hearing came down to three issues:

1. Was there any change in the parties’ circumstances to support a new parenting schedule?
2. If so, what parenting arrangement was in the children’s best interests?
3. Should Tommy be required to get permission to bring motions to vary that schedule?

Aboriginal Families Separation

Tommy argued that Jan was not supportive of the children’s First Nations heritage. Further, their school calendar in Ontario interfered with the girls’ ability to take part in Indigenous events. He claimed their daughters wanted to live with him because they could “connect better” with their heritage and learn the Ojibwe language.

Jan said nothing had changed since their 2016 divorce. She relented that the pair sometimes quarrelled about arranging their daughters’ schedules to attend Aboriginal Day or powwows. But she said Tommy had ignored their divorce order and was acting on his own.

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The Importance of Mediation and Traditional Dispute Resolution Mechanisms

When the court examined Tommy’s evidence, it could not find any material changes affecting the girls’ conditions, means, needs or other circumstances since 2016. The parent’s ability to meet their daughters’ needs had not changed. Nor had anything unforeseen by the 2016 divorce order occurred.

The documents Tommy gave the court didn’t meet the standard necessary for trial. Several affidavits had “significant evidence” on key issues. They included his statements about his daughters’ wishes. Letters and information from third parties were included. But they were not sworn testimonials. The judge was firm:

“The fact that the rules allow for this matter to proceed by affidavit is not an invitation to water down the rules of evidence,” she commented.

First Nation Divorce

Tommy cited other evidence.

The December 2017 Anishinabek Nation Education Agreement Act gave participating First Nations the right to make laws about education on reserves, provided students could transfer back and forth between Ontario’s public school system without penalty.

The Truth and Reconciliation Commission of Canada’s Calls to Action report was released in 2015, after the couple’s initial 2012 divorce order. Recent amendments to child and family services legislation were also mentioned.

The court agreed this evidence was relevant. But the children’s best interests remained the overriding concern.

Proving The Children’s Interests

Having affidavits about the children’s wishes was insufficient. Tommy’s protests that the girls wanted to live with their father and go to school in Ontario so they could attend Indigenous events failed. In fact, the only evidence of their wishes was their father’s statements. Jan said she was unaware of any such desires.

The court ruled Tommy’s evidence was hearsay. He could have, but did not, file a Voice of the Child Report. He also gave no context for the girls’ statements, the actual words they used, when and where the statements were made or what his or others’ involvement was in obtaining the statements. With a “significant risk” Tommy’s comments were self-serving, and the court ruled his statements inadmissible.

Mother’s Point Of View- First Nation Divorce

The judge also disagreed that Jan did not value the girls’ connection to their First Nations heritage and language. Jan seemed supportive of her daughters going to powwows, visiting their father’s family and, if desired, learning to speak Ojibwe.

The girls’ First Nation heritage had played a large part in both the 2012 and 2016 divorce orders. Nothing had changed since. Jan allowed the girls to miss school for Aboriginal Day, which they attended with their father as provided in the 2016 divorce order.

While the 2016 order hadn’t anticipated that school calendars might be different between Quebec and Ontario, this material change had not interfered with their attendance at First Nations events. Nor were school support services for Indigenous students superior in Ontario compared to Quebec, another of Tommy’s points.

Divorce on Reserves

Although Tommy wanted his daughters to live with him, he had not prepared a detailed parenting plan. He did not state what school they would attend and how they would get there or show how their new school would be a better choice.

He also didn’t explain how Jan would be supported to continue her relationship with the children. Left out of his application was how the girls would stay in touch with family and friends or even adjust to a move.

His alternative option is that Jan drives them to and from Ontario every day to attend school. That was also sketchy. The trip was 65 kilometres each way. The court lacked any information on how that would affect the girls, including their schoolwork and outside activities.

First Nation Divorce- The Outcome Of The Courts

The judge did agree that going to Aboriginal Day and powwows was important to the girls’ development. She formalized that part of the divorce order. If the parents could agree on wording, she would create a single, varied order. That would reduce confusion in the future.

What she did not support was Jan’s request to prevent Tommy from making future requests to change that order. His requests weren’t that frequent. And the court had other ways to prevent such abuses.

What is the First Nations Matrimonial Property Act?

The First Nations Matrimonial Real Property Act is a federal law that was passed on December 16, 2013, with the aim of providing a framework for the division of matrimonial property on reserve lands in the event of a divorce or the death of a spouse. Prior to the enactment of the FNMRA, First Nations people were subject to a patchwork of provincial laws that did not adequately consider their unique cultural and legal circumstances, leaving them vulnerable to exploitation and injustice.

The First Nations Matrimonial Real Property Act enables First Nations people living on reserve lands to opt into the Act’s provisions for the division of matrimonial property. The Act provides a clear set of rules for the division of property that is based on common law principles, while also acknowledging the unique legal and cultural circumstances of First Nations people.

The Act recognizes customary law as a valid means of determining the division of property and also allows for the involvement of community members and elders in the process.

Common Challenges and Solutions in First Nation Divorce Cases

The First Nations Matrimonial Real Property Act encourages the development of community-based matrimonial real property laws that can be customized to meet the specific needs and circumstances of each First Nations community. These community-based laws can provide additional protections for spouses and children and can help ensure that the division of property is equitable and fair.

The FNMRA is a significant step in recognizing the rights and interests of First Nations people when it comes to the division of matrimonial property on reserve lands.

By establishing a clear legal framework for the division of property and recognizing the importance of traditional customs and practices, the Act helps ensure that First Nations people have access to justice and receive fair treatment in the event of a divorce or the death of a spouse.

What is First Nations family law BC?

First Nations family law in British Columbia encompasses the legal principles and traditional practices that govern family relationships such as marriage, divorce, child custody, and adoption within First Nations communities in the province.

Unlike Canadian law which has a uniform application throughout the country, First Nations people in BC have the right to develop and apply their own laws and traditions in matters related to family and community. Therefore, First Nations communities have their own family laws that reflect their unique traditions and customs.

The family laws in First Nations communities may include requirements such as involving elders or community members in decisions related to marriage or child custody. However, federal and provincial laws are also applicable to family law matters in First Nations communities.

The Indian Act and divorce

The Divorce Act and the Family Law Act of BC, for instance, apply to divorce and child custody regardless of the parties’ First Nations status. Additionally, the Indian Act provides First Nations people with specific rights and protections related to family law matters, including the right to determine the care and upbringing of their children.

The BC First Nations Justice Council is responsible for advocating the development and implementation of First Nations laws and traditions in family law matters. The council collaborates with First Nations communities to develop community-based family laws that reflect their unique needs and circumstances.

Respecting Indigenous Values: Best Practices for Attorneys and Mediators

The council also offers training and resources to legal professionals and community members to help ensure that First Nations people have access to justice and receive fair treatment in family law matters.

First Nations family law in BC is a multifaceted area of law that combines traditional customs and practices with federal and provincial laws. Legal professionals need to be well-versed in both these aspects of the law in order to effectively represent their First Nations clients and ensure their rights and interests are protected.

How does marrying a native Canadian work?

Marriage with a First Nations person in Canada is no different than marrying any other Canadian citizen. There are no legal restrictions on non-Indigenous individuals marrying First Nations people, and the process of getting married is the same across the country.

It is important to note that First Nations communities may have their own unique traditions and customs related to marriage. These customs vary across different communities and may involve the participation of community members or elders in the marriage ceremony.

Real-life Examples of First Nation Divorce Proceedings

First Nations people may be governed by specific laws and regulations regarding marriage. For instance, First Nations individuals residing in reserve lands may be subject to the Indian Act, which regulates certain aspects of family law, including marriage and divorce.

If a non-Indigenous person intends to marry a First Nations person residing in reserve lands, they may have to comply with particular provisions of the Indian Act.

The Act mandates that marriages of First Nations people residing in reserve lands should be registered with the Indian Registrar, and it outlines particular rules for the distribution of matrimonial property in the case of divorce.

We hope you found this article about First Nation divorce helpful.