Section 3: Findings

The content below reflects the findings from the interviews, supported and complemented by data from the literature review.

3.1 Access to Justice

Many barriers to access and related challenges within the FJS are experienced by Indigenous and non-Indigenous people alike. However, given the profound social and economic impacts of colonialism, as well as intersecting factors such as geographic location, Indigenous people are at an increased likelihood of experiencing these barriers.

3.1.1 Affordability and Legal Aid Eligibility

The cost of legal representation was cited across all interviews and literature as one of the most significant barriers to accessing the FJS. Affordability disproportionately affects the Indigenous population in Canada, which faces higher rates of poverty and unemployment compared to non-Indigenous Canadians (Statistics Canada, 2022a). As noted by one private practice lawyer:

“Other people do not go ahead with the firm because they cannot afford a lawyer. This is another major reason that the firm does not have more Indigenous clients. The financial cost of seeking private counsel is a huge barrier to access owing to the costs of litigation.”
(Interview notes)

Legal aid programs across the country offer free or reduced-cost family law services for low-income families. Overall, only 3% of applicants in family law cases in 2019/2020 were represented by legal aid lawyers in comparison with 44% represented by non-legal-aid lawyers (Ciavaglia-Burns, 2021).3 In 2020-21, 67% of family legal aid applications were approved (Department of Justice Canada, 2022c). Notably, civil legal aid applications from self-identified Indigenous applicants had a higher approval rate compared to the general population: 81% compared to 76% (Department of Justice Canada, 2022c).4 In particular, Indigenous women made up two-thirds (66%) of Indigenous civil legal aid clients (Department of Justice Canada, 2022c). However, various interviewees and reports described the barriers many individuals face when applying or receiving legal aid, including:

As noted in the 2017 report of the Standing Committee of the House of Commons on Justice and Human Rights the regional inconsistencies in legal aid services, eligibility guidelines, and coverage provisions both between and sometimes even within provinces, have raised questions about equal access to justice in Canada (Housefather, 2017). While most jurisdictions guarantee access to social assistance recipients and victims of family violence, determining eligibility for the broader population takes into consideration income, assets and liabilities, family size and the type of case. Financial eligibility criteria are typically at or below poverty levels5 and have not kept up with inflation (Birnbaum & Bala, 2019; Tsoukalas & Roberts, 2002; Bertrand et al., 2002; Housefather, 2017). Legal aid is also inaccessible for the “working poor” who may have moderate income, but are still unable to afford legal services, especially if their resources are required for other needs in a time of crisis (Law Society of Saskatchewan, 2018, Bertrand et al., 2002; Birnbaum & Bala, 2019; Housefather, 2017). Québec offers the highest financial eligibility threshold across Canada, and data from 2014-2015 indicates that family legal aid was granted to more than three times the number of applicants than Ontario, despite having a significantly smaller population, demonstrating the impact of eligibility criteria on access to legal services (Poitras et al., 2021; Birnbaum & Bala, 2019).

In some cases, financial eligibility assessments fail to account for contextual factors faced by Indigenous families. For instance, one interviewee noted that in cases of family breakdown, shared family assets can also impact financial eligibility, even though the distribution of property amongst the partners may be yet undetermined. Meanwhile, Roil’s report describes how Inuit workers at a remote industrial site in Labrador earned higher than average incomes but were “unable to pay the huge cost of bringing independent legal counsel to their communities because of the high travel costs involved” (2014, p. 60).

Receiving approval for legal aid does not guarantee legal representation. Two interviewees described how some lawyers are hesitant to take on legal aid cases that they perceive to be overly complex, such as cases involving coordination with representatives from child welfare services. One interviewee listed five major urban centres across their province where their clients were unable to find a lawyer due to practices being “either full or too selective about the files they take,” or practices being disincentivized from taking legal aid cases at a reduced fee. Québec’s 2019 Public Inquiry Commission on relations between Indigenous Peoples and certain public services noted that Indigenous clients face additional discrimination for criminal legal aid matters:6

Over half (58.3%) of the private practice lawyers who accept legal aid mandates believe that low compensation is an issue, since the cases are complex and require a great deal of involvement. Several of them were hesitant to take cases in which Indigenous people were accused. Stéphanie Quesnel, access to justice coordinator at the Centre d’amitié autochtone de Val-d’Or (CAAVD), told the Commission that she sometimes needs to devote “about fifty hours” to finding a lawyer interested in taking a case.
(Gouvernement du Québec, 2019, p. 313)

Even when clients with complex cases obtain legal representation, the number of hours in the court case may exceed those covered by legal aid. This is a particular challenge for survivors of intimate partner violence, whose ex-partners may deliberately extend family law proceedings until their victims run out of finances and legal recourse (Hrymak & Hawkins, 2021), or who may need more time to feel safe enough to disclose abuse (Bala & Birnbaum, 2019). Time limitations can also impact individuals who face literacy, language or other communication challenges who may require increased face-to-face contact and time to process information (Bala & Birnbaum, 2019). Outcomes of legal action can be impacted by imbalances in financial resources or power (Rajan, 2021; Hébert et al., 2022)

Legal aid plan funding in each jurisdiction has a direct impact on access to justice, as budget fluctuations determine the eligibility criteria for applicants, the number of hours allotted per case, the competitiveness of compensation for legal aid lawyers, the scope of coverage (e.g. offering partial assistance or repayment requirements), and the reach of service delivery (Wright, 2017; Bala & Birnbaum, 2019). While in some jurisdictions legal aid funding has been stable or increased, others have seen budget cuts or have not kept up with inflation and/or increasing demand (Wright, 2017; Bala & Birnbaum, 2019; Manitoba Law Foundation, 2021; Hrymak & Hawkins, 2021; Rahman, 2010; Law Foundation of BC, 2005).

The absence of family legal aid holds numerous judicial, financial, safety, health and emotional repercussions for applicants and their families. In the absence of legal aid, some individuals abandon their claims, potentially unjustly losing parenting time, spousal and child support, and/or rights to matrimonial property and pensions (Bala & Birnbaum, 2019). Others join the increasing number of self-represented litigants (SRLs) in family law—making up 58% of family case litigants in 2019/2020 (Ciavaglia-Burns, 2021). SRLs may face increased difficulty understanding court procedures, and more complex legal issues such as matrimonial real property on reserve. SRLs tend to require more assistance and court time and still may experience a notable disadvantage in outcomes (Department of Justice Canada, 2016; Roil 2014; Bala & Birnbaum, 2019).

Meanwhile, if the other party is represented, their legal costs increase (Department of Justice Canada, 2016; Bala & Birnbaum, 2019). Only six provinces offer duty counsel to SRLs for civil matters (Department of Justice Canada, 2022b). Bala & Birnbaum (2019) note the lack of data on the complexities and challenges in seeking and obtaining family legal aid, and the consequences of receiving limited or no legal aid, for equity-seeking communities including Indigenous people.

3.1.2 Procedural Complexities

Despite the predominance of affordability in discussions of justice system accessibility, the President of Québec’s 2019 Public Inquiry Commission on relations between Indigenous Peoples and certain public services noted that financial ineligibility is not the main reason for denying legal aid applications from Indigenous people, but rather “inability to provide some information,” which was corroborated by data from criminal legal aid applications (Gouvernement du Québec, 2019, p. 313). In the Commission’s survey of defence lawyers who work in Indigenous communities, 54.8% of respondents believed that “the process of obtaining legal aid is a problem for Indigenous peoples” due to “language, the distance that the potential beneficiary must travel for an eligibility appointment, the exhaustive and hard-to-collect documentation, and often non-existent proof of income” (Gouvernement du Québec, 2019, p. 313).7

Saskatchewan’s Legal Services Task Team describes how for self-represented litigants,

The legal system can be scary, intimidating, and full of complex and confusing procedures. The general public does not have the benefit of understanding ‘insider’ customs and procedures in the courtroom (language and terminology, where to stand, the order of proceedings, etc.).
(Law Society of Saskatchewan, 2018, p. 39)

Some individuals struggle to access legal information and legal documents due to limited levels (or different kinds) of literacy, in particular legal literacy (Link, Mwunvaneza, & Schroh, 2019, p. 9). Additionally, individuals with cognitive disabilities or mental health challenges may have difficulty applying for benefits “due to difficulties such as gathering the necessary documentation, comprehension issues, sensory issues, and not being well enough psychologically to go through the application process” and may also struggle with “understanding the law, and the procedures and processes taking place” (Rajan, 2021, p. 26, 40). Individuals fleeing unsafe home situations may also have limited access to necessary documentation, such as proof of income (Bala & Birnbaum, 2019).

In some jurisdictions, family courts have introduced prerequisites for filing a legal claim, such as attempting alternative dispute resolution, completing detailed financial disclosures or completing parenting courses. While these models are intended to increase efficiency and reduce costs for clients by encouraging out-of-court resolution, some interviewees described how, paradoxically, prerequisites can increase barriers for Indigenous clients. For instance, completing online courses, as well as downloading or uploading necessary documentation requires stable Internet access, which some of their Indigenous clients in rural or remote communities do not have. Others struggle to provide necessary financial documentation if they do not have up-to-date tax returns or if they have multiple sources of income, receive social assistance, or other work such as trade and barter of trapline furs, fish catches, and other harvested items for money, goods, housing, or services such as childcare.

One interviewee described how procedural complexities are “out of touch” with the needs of their clients who are in crisis situations. While the lack of preparation or insufficient documentation can be perceived as an individual failure, it is important to consider the inherent pressures parents face in caring for children alongside other responsibilities such as work, caring for extended family, or other cultural or community obligations and roles. These pressures can also be compounded by the mental health impacts of family dissolutions, intergenerational trauma, and the intersecting systemic adversities some individuals face such as intimate partner violence, poverty, geographical barriers from services, lack of transportation, or legal illiteracy. All these factors can impede some individuals from preparing sufficiently for legal action. Interviewees stressed the importance of offering their clients holistic support, such as through integrated family services or the support of legal advocates (see Section 4.2 for more information).

Some interviewees and reports have also critiqued the length of time, including delays, in family law proceedings, which can increase costs, the stress and trauma of interpersonal conflicts, periods of separation from children, and time without equitable spousal or child support (Hébert et al., 2022; Law Commission of Ontario, 2012, Link et al., 2018; Roil 2014). One interviewee also noted that families experiencing high conflict disputes could benefit from more prompt access to judicial mediation support. If the hurdles seem insurmountable, or the associated costs become too great, some clients—particularly those most marginalized—may give up fighting for access to justice:

The system is not a barrier to access; it is actually a closed door. Maybe it is not to people who are more savvy, but people who are already disenfranchised from the system […] get lost in the system or they won’t finish the process.
(Interview notes)

3.1.3 Fear & Distrust

While the justice system can be intimidating for many people who are not legal professionals, Indigenous people in Canada are victims of a long history of legislated colonial violence and discrimination in the justice system, including through the Indian Act, the Sixties Scoop, modern child welfare systems, residential schools, police violence, and ongoing racism and discrimination in the justice system (see Section 3.2.1). As a result of this, many Indigenous people experience a deep-seated fear and distrust of the justice system which discourages them from seeking legal support or increases the stress of legal proceedings (Law Society of Saskatchewan, 2018; McCallum & Hrymak, 2022; Skinnider & Montgomery, 2017). As described in a report from Rise Women’s Legal Centre:

Notably, our interviewees often described Indigenous people’s interactions with the family law system in terms that are very similar to those used to describe their interactions with the criminal law system, despite the fact that only one of these systems is designed to be punitive […] Experts described that Indigenous people going to family court also experience a lack of trust, because they have no choice but to seek to resolve family law problems using the very same court system where they may be fighting for the return of their children or have interactions with the criminal justice system.
(McCallum & Hrymak, 2022, p. 11)

The 2022 National Justice Survey found that only 10% of Indigenous respondents felt confident that the FJS was fair to all people, compared to 16% of white respondents, and 18% were confident that the FJS was accessible to all people, compared to 25% of white respondents (Department of Justice Canada, 2022a).

3.1.4 Legislative Inequities

In Canada, the federal Divorce Act governs divorces for individuals in legally recognized marriages. Provincial and territorial legislation governs separations for married and unmarried couples who are separating but not seeking a divorce, as well as issues related to property division, and protection orders.

Our research indicated several discrepancies between the Divorce Act and the various provincial and territorial Acts that can inequitably affect outcomes for Indigenous families depending on their geographic location and marital status. Most notably, the 2021 amendments to the Divorce Act (Department of Justice Canada, 2022d) include changes that address some of the barriers identified in this report as impacting Indigenous families’ experience in the FJS. These barriers include higher rates of interpersonal violence, the question of culture and extended family when establishing the best interests of the child, and financial challenges. Specifically, the changes include:

While some of these amendments are mirrored in provincial legislation, they are not yet standardized. In her discussion on the importance of standardizing best practices in family law for survivors of intimate partner violence, Koshan argues:

The standards that apply to the resolution of disputes should not depend on whether the parties were married and are seeking a divorce. Indeed, we might argue that the different standards that currently exist violate the prohibition against discrimination in the Charter [Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c 11] on the basis of marital status, which has been recognized as an analogous ground under section 15 (see Miron v Trudel, [1995] 2 SCR 418, 1995 CanLII 97).
(2021, p. 4)

The gaps between the new Divorce Act provisions and provincial and territorial legislation are significant considering the rapidly growing number of common-law families in Canada.8 Same-gender and non-binary couples are also more likely to be living common-law (Statistics Canada, 2022c). Data tables from the 2021 Census show that more than half (51%) of Inuit who live with a partner are in a common-law relationship while 49% are married (Statistics Canada 2022d). However, First Nations people (58%) and Métis (69%) were more likely to report being married than living with a common-law partner (42% and 31%, respectively) (Statistics Canada 2022d).

3.1.5 Northern, Rural and Remote Communities

Indigenous families’ experiences with the FJS are significantly impacted by geographic location. Not only does the legislation governing separation and legal aid policies differ between provinces and territories, but public services in general are also limited in many northern, rural, small and/or remote communities which are home to a majority of the Indigenous population. While the Indigenous population has been growing in urban areas, 56% of Indigenous people lived outside of large urban centres according to the 2021 Census (Statistics Canada, 2022b).9 Geographic location differs amongst Indigenous groups: 45% of the Métis population live outside of large urban centres, compared to 67% of Status First Nations people and 85% of Inuit (Statistics Canada, 2022b). Two thirds (69%) of Inuit live in Inuit Nunangat (Statistics Canada, 2022b). Additionally, 44% of Status First Nations people lived on reserve;10 while some reserve communities are close to urban centres, others are extremely remote, and the majority have less than 500 inhabitants (Statistics Canada, 2017; Indigenous Services Canada, 2020).11

A review of legal aid service delivery in rural and remote communities found that "Indigenous people form the dominant clientele group (over three-quarters) in the three northern territories and a significant clientele group in northern and more rural parts of most provinces” while in several jurisdictions women with family law issues were the first or second most frequent category of applicant (Roberts, 2023, p. 163).

Indigenous people are therefore disproportionately affected by the many barriers to justice that impact Northern, small, rural, and/or remote communities, including:

3.1.6 Intimate Partner Violence (IPV)

IPV includes physical and sexual abuse as well as emotional, psychological, financial and other forms of abuse. Involvement in the FJS can result in new forms of abuse, intimidation, control and coercion through the many forms of litigation abuse (Hrymak & Hawkins, 2021). While people of all genders, social, and cultural backgrounds experience intimate partner violence, data from 2019 shows that rates of IPV are 3.5 times higher amongst women, and in particular Indigenous women are more likely to experience IPV than non-Indigenous women, with 1 in 6 Indigenous women experiencing at least one form of IPV in the previous year (Women and Gender Equality Canada, 2022). One interviewee noted that over the past three years, all their Indigenous clients had faced family violence.

IPV not only can contribute to family breakdowns, it also often continues or intensifies following separation (Department of Justice Canada, 2022b). Numerous complicating factors impact safety and access to justice for victims of IPV when seeking separation or divorce, including:

3.2 Indigenous Cultural Considerations

Alongside the barriers that impact the general population, our literature review and interviews found several cultural-specific considerations that Indigenous families often navigate when seeking a separation or divorce.

3.2.1 Racism and Cultural Safety

One interviewee stated that they have witnessed almost all their clients experiencing “extreme and overt racism” or differential treatment based on their Indigenous identity, both in court and in court registries, and that they have helped to file complaints about racism reported by community partners in other areas of their province, with little follow-up. Rise Women’s Legal Centre asserts that “both Indigenous lawyers and Indigenous parents face racism in the legal system” (McCallum & Hrymak, 2022, p. 14), while Quebec’s 2019 Public Inquiry Commission found that:

The evidence contains relatively few signs of direct discrimination against First Nations members and Inuit in the justice system. The data and testimonies collected, however, clearly demonstrate the adverse side effects caused by certain laws, policies, standards and institutional practices rampant within the justice system. This discrimination, which is widespread enough to be termed systemic, is reflected in various stages of criminal proceedings, as the evidence has shown.
(Gouvernment du Québec, 2019)

While the commission’s focus was on the criminal justice system, a similar pattern of systemic discrimination has resulted in the disproportionately high rates of child welfare apprehensions of Indigenous children, which further impacts Indigenous people’s sense of trust and safety in family courts (McCallum & Hrymak, 2022).

Some specific examples of racism in family law that were described in our research include the favourable treatment of non-Indigenous parents in relation to parenting arrangements based on “real or perceived higher socio-economic standing” (McCallum & Hrymak, 2022) or biases against Indigenous parents’ alcohol or cannabis use (Interview notes); Indigenous survivors of IPV facing discrimination from police (Hrymak & Hawkins, 2021); ethnic biases in parenting assessments (Interview notes, Hrymak & Hawkins, 2020), and explicitly racist commentary in court documents (Boyd & Dhaliwal, 2015). One interviewee noted that some Indigenous clients prefer not to self-identify as Indigenous out of fear that it will prejudice them in court.

Our interviews and literature review identified a lack of cultural competence amongst justice system professionals (including court officials, mediators, lawyers, judges, jury members) as a core source of racism and discrimination in the FJS. Indigenous people are underrepresented in legal professions, and non-Indigenous legal professionals often lack an understanding of the history of colonialism in Canada, Indigenous Peoples’ cultural practices and obligations, social contexts and barriers, trauma-informed practices, and best practices for working with equity-deserving people (Law Society of Saskatchewan, 2018; Manitoba Law Foundation, 2021; McCallum & Hrymak, 2022). This lack of cultural awareness can lead to disrespectful or offensive statements and unfair assessments of Indigenous people’s parenting decisions and capacity (McCallum & Hrymak, 2022). For instance, in BC s.211 reports are sometimes ordered to provide judges with further information about a child’s needs, opinions, the family home and parenting styles to help determine parenting arrangements. While the reports are intended to be written by a neutral professional, Rise Women’s Legal Centre’s guide on s.211 reports specifically warns that:

It may be particularly challenging as an Indigenous person to have a s.211 report written about you as assessors are not required to have knowledge about the impacts of colonization or to have completed training about their own biases or systemic racism.
(Hrymak & Hawkins, 2020, p. 3)

The FJS process can also be culturally insensitive or alienating to Indigenous clients. For instance, Roil (2014) notes that “the timing of court circuits does not always allow sufficient time for aboriginal people to leave their local homes and their native activities to attend at the court’s more formal and time-structured events” (p. 60). Such “native activities” can have important cultural and tangible significance—for instance, times of the year when harvesting or hunting occurs to provide food for up to a year; missing such a critical window can have a disastrous effect on food security for a family or community. One interviewee described how a mandated parenting course in their jurisdiction lacked any content reflecting Indigenous knowledge around parenting, and similarly, McCallum & Hrymak describe how “the colonial framework manifests in both substantive law, which excludes Indigenous worldviews and values, and in court processes that are inaccessible, rely heavily on European ways of communicating information, and are individualized rather than relational” (2022, p. 11). For example, one interviewee described how some clients find the framing of parenting arrangements in terms of “custody” and “access” to be overly “proprietary” and in opposition to Indigenous worldviews for family. These terms are no longer used in the Divorce Act. Since 2021, more child-focused terminology was adopted. The new approach uses “parenting orders” to replace orders for custody and access. These orders set out “decision-making responsibilities” and “parenting time”. The terms “custody” and “access” are still used in some provincial and territorial legislation and used colloquially.

Several reports describe how these cultural barriers and disconnections can lead to poorer outcomes or outright harm for Indigenous clients or discourage some Indigenous people from turning to the FJS entirely (Manitoba Law Foundation, 2021; McCallum & Hrymak, 2022; Gallagher-Mackay, 2003; Law Commission of Ontario, 2012; Law Society of Saskatchewan, 2018; Roil, 2014).

3.2.2 Cultural Perspectives on Family

One of the most significant areas of cultural disconnection and misunderstanding impacting Indigenous families in the FJS is around the definition of family. Whereas family law is typically framed in terms of the immediate, nuclear family (two parents and their children), from an Indigenous perspective the definition of family extends to include relatives, chosen families, and/or the broader community (NIMMIWG, 2019; Guay et al., 2019). In 2021, 17% of First Nations children and 17% of Inuit children lived with a grandparent— almost twice the proportion of non-Indigenous children (9%) (Statistics Canada 2022e). The embeddedness of extended family is reflected in some Indigenous languages; for instance in Inuktitut, the term qatangutigiit, or “immediate families” includes grandparents (Gallagher-Mackay, 2003, p. 23-4). Guay et al. (2019) also note that co-habitation with extended family reflects not only cultural contexts, but also in some cases the lack of safe and adequate housing in some Indigenous communities.

Despite the potential benefits of living with extended family, such as the opportunity for parents to learn parenting strategies and skills, and greater practical and emotional support for parents and children (Guay et al., 2019; McCallum & Hrymak, 2022), several interviewees described how differing cultural perspectives on family can lead to biased and discriminatory rulings and parenting assessments. Under family law, time spent with parents does not extend to time spent with a parent’s extended family, thus living with extended family who are actively involved with raising the child(ren) can become a factor that detracts from claims for increased parenting time. As one interviewee described,

It is difficult to convey to the court that even if the child is not with the primary parent, there is a strong family connection to the paternal side, however that looks. If dad’s time with the child is spent with [the paternal grandmother] that should be recognized.
(Interview notes)

Similarly, an interviewee for Rise Women’s Legal Centre’s analysis on decolonizing family law, states that:

For a child to be living with their grandparents, this isn’t necessarily a breakdown in the relationship between the parent and the child. It’s perfectly normal to be quite actively raised by grandparents or quite actively raised by an aunt. And that’s not necessarily due to any kind of shortcoming of that child’s parent.
(McCallum & Hrymak, 2022, p. 13)

Incorporating a broader, more culturally informed definition of family raises several considerations for the FJS. For instance, extended family members are not always aware they can make a legal claim for time with children, or financial support for children they are helping to raise (Gallagher-Mackay, 2003). Generally little to no legal assistance is available to them should they want to pursue such a claim (McCallum & Hrymak, 2022), and one interviewee described how in one case, while the grandparents were successful in their claim for time with their grandchild, they only received two nights out of the month. A larger family circle means that there is increased support when families separate, but also that more people are affected when a family separates, and that more people may be interested in maintaining relationships with the children (McCallum & Hrymak, 2022). A weakened relationship with the family of one parent can be a significant loss for children who lived in a home with extended family (Bates, 2021); however, this connection is not typically considered a factor when considering the best interest of the child or the emotional support offered to a family. There are also increased complexities for the division of the family home when more members of the family live on the property.

3.2.3 Culture and the Best Interests of the Child

Several reports and interviewees discussed the importance of considering a child’s Indigenous cultures, languages, and ties to community and land when considering the best interests of the child for parenting arrangements and matters of relocation. This approach aligns with UNDRIP’s assertion of Indigenous Peoples’ right “to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures” (United Nations, 2007, art. 13.1), as well as the Truth and Reconciliation Commission’s call for Indigenous children to reside in “culturally appropriate environments” (2015, art. 1.ii).

In practice, race and culture can have either a favourable or unfavourable influence on parenting arrangement decisions, depending on the judge’s discretion. While Indigenous heritage plays a more significant role in child welfare proceedings, interviewees highlighted the growing recognition of the importance of cultural heritage in family law as well. However, in their case law analysis on the impact of race and culture on determining the best interests of the child among Canadian mixed-race couples, Boyd and Dhaliwal (2015) found that “race is rarely found to be the key factor and the racialized parent is not favoured in custody cases involving mixed race children,” as race and culture are often outweighed by factors such as financial means, stability, attachment, family support, mental state, or history of caregiving (p. 371).

Further, Rise Women’s Legal Centre found that biases may play into rulings, noting that:

Low socio-economic status is frequently seen as an individual failure, and there can be ignorance or misunderstanding about how Indigenous families have been intentionally and systemically disadvantaged by colonial processes. As a result, non-Indigenous parents and families may be given preference in court because of their access to resources or a real or perceived higher socio-economic standing.
(McCallum & Hrymak, 2022, p. 14)

One interviewee noted that they have seen clients who chose not to disclose their Indigenous identity for fear of prejudice, limiting their access to the consideration of Indigenous heritage when considering the best interests of the child.

While Boyd and Dhaliwal (2015) warn against a reductive practice of “race-matching,” they instead suggest “that it is key for any parent seeking custody to be able to demonstrate their ability to foster the healthy development of a child’s multifaceted identity [including] multiple racial and cultural backgrounds.” One interviewee reported a recent shift where courts may extend increased parenting time to the parent who is closer to their First Nations community. However, another interviewee described how rulings can be biased towards the parent whose Indigenous community is closer to the location of the court. In some cases, time with children can be offered to family who are able to provide access to cultural heritage (Boyd, 2019; Boyd & Dhaliwal, 2015).

Rather than leaving consideration of race and culture entirely up to the discretion of a judge, Boyd and Dhaliwal (2016) also recommend legislation that provides explicit guidelines on how to factor in race and culture. As of 2021, Indigenous heritage is specifically outlined as a factor to consider in the federal Divorce Act; however, such framing is inconsistent across provincial and territorial legislation.

3.2.4 Language Barriers

UNDRIP asserts the right for Indigenous Peoples to use their traditional languages, and the responsibility of states to “ensure that Indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.” (United Nations, 2007, art. 13.2). While the majority of Indigenous people in Canada speak English or French, Indigenous people often face difficulties accessing legal information and services if those individuals exclusively or primarily speak an Indigenous language, English but not French, or French but not English, or if they speak different dialects than available legal staff and interpreters.

Language barriers can pose a particularly significant barrier to Inuit; in 2003, 14.8% percent of Nunavut’s population was unilingual in Inuktitut, and in 2016, 5.9% of the Nunavut population was unable to conduct a conversation in English (Gallagher-Mackay, 2003; Statistics Canada, 2019). Roberts’ (2023) research into legal aid delivery in rural and remote communities surfaced the following trends on translation and interpretation needs and services for Indigenous-language speakers across Canada:

Providing consistent access to family law information and services for Indigenous language speakers through translations, interpretation, and/or multilingual staff is imperative to the alignment of the FJS with Indigenous human rights. It is also important to take a nuanced, distinctions-based approach to language services, to identify and address differences in dialect.

3.2.5 Mobility Between Communities

Band membership and geographic location are additional factors that can impact Indigenous families’ parenting arrangements and family unity. For instance, following a separation, ex-partners who are not members of a First Nations band cannot remain living on the reserve, as they may have done while in a relationship. Parenting arrangements must stipulate pick-up and drop-off points that are accessible to both parents, as the band may restrict non-band members from entering a reserve (Boyd, 2019.; Legal Aid BC, 2021). In one case in Ontario (Neshkiwe v Hare 2019), when one parent took the family’s children to reserve land that the other non-member parent could not access, police on the First Nation initially refused to enforce an ex-parte order for the children to be returned to their original city, and the First Nation challenged the Ontario Court’s jurisdiction over custody and access (Cross, 2021). While the case was eventually resolved, it brought up significant questions that are yet to be resolved about First Nations jurisdiction in family law cases.

In cases where one parent lives in a remote reserve or community, or when parents live far away from each other, it can also be difficult—if not impossible—to afford or arrange transportation between parents, particularly in the winter months or if one parent faces financial difficulties or physical disabilities. One survey conducted in Nunavut indicated that about half of respondents could only reach their children’s primary residence by airplane (Gallagher-Mackay, 2003), limiting contact to telephone and letter. As one interviewee described:

This can result in a mother having no access to her daughter for three-quarters of the year. Her daughter resides somewhere that appears physically on a map as if it is located not that far away, but in reality, it is impossible without significant expense to connect with her daughter three-quarters of the time. […] A Court cannot mandate away poverty or provide airplanes for parents to reach remote communities for visitations by family members. The only option is to carve out as much time as possible when the roads are good, which requires working together to manage the pickup points. This is very difficult to achieve when the parents are in conflict.
(Interview notes)

Questions of relocation can be additionally fraught when it would result in the loss of cultural connection to the land or community (Gallagher-Mackay, 2003) or alternately when non-removal orders limit a child’s ability to have access to land, ceremony, community and family in a distant community (McCallum & Hrymak, 2022).