Indigenous families and separation

The short answer

Most separation rules are the same for Indigenous and non-Indigenous families, but a few are different. Courts must consider a child's Indigenous upbringing and heritage. A family home on reserve is governed by a federal law or by the First Nation's own law, not provincial property law, and a non-member spouse usually receives money rather than the land. Tax-exempt income is grossed up for support. Indigenous-led legal services exist and are worth calling first.

If you or your children are First Nations, Inuit or Métis, most separation rules in Canada apply to you in the usual way. But a few rules apply only to Indigenous families, and they are rarely explained in one place. This guide sets them out for Indigenous parents and their partners.

FairWell is not an Indigenous organisation, and nothing here replaces the knowledge of your community, an Elder or a lawyer who understands your Nation's laws. It is general information, not legal advice. Several rules below are specific to reserves or to British Columbia; we say so where that is the case.

If you are not safe, read separation and safety planning first. The Hope for Wellness Help Line is available 24 hours a day at 1-855-242-3310.

What stays the same

Parenting time, decision-making and support are decided under the same laws as for everyone else, and can be settled by agreement. Legal Aid BC notes that parents who separate outside court can get help from an Elder, a community leader, the band or another Indigenous family resource, often the most respectful and least expensive place to start. Support follows the usual guidelines, with one adjustment for tax-exempt income covered below. Our calculators give a first estimate.

Your child's heritage is part of the best interests test

When a court makes a parenting order under the Divorce Act, it must consider all factors related to the child's circumstances. One listed factor is "the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage." Provincial laws and the courts have treated heritage as relevant for many years. The Clicklaw wiki points to two Supreme Court of Canada decisions, D.H. v. D.M. (1999) and Van de Perre v. Edwards (2001), which treated a child's ancestry and identity as factors to weigh alongside others.

Two points are worth understanding:

Heritage is weighed, not decisive. Legal Aid BC puts it directly: the fact a child is Indigenous does not outweigh the other factors a court considers. Stability, the history of care, each parent's relationship with the child and any family violence all still count.
Courts look at what each parent actually offers. According to Legal Aid BC, the court looks at the real cultural practices and experiences each parent can provide, not at the culture in the abstract. A parent who is not Indigenous can still show how they will support the child's connection, and a parent who is Indigenous still needs to show how they will.

Putting heritage into a parenting plan

The most practical protection for a child's identity is a written plan that both parents can follow. Consider including time for ceremonies, seasonal gatherings and community events; language classes or time with fluent speakers; time with grandparents, aunties, uncles and Elders; and how decisions about spiritual practice will be made. The Clicklaw wiki notes that in BC a court may extend contact to a third party, such as an Elder, who can help maintain the child's connection. The FairWell parenting plan has space for these terms.

"I want both of us to keep her going to the summer gathering with my family. Can we write in which weekend that is and who drives?"

"She's Native, so she belongs with me."

Access to the reserve. Legal Aid BC notes that, in rare cases, a band council resolution may restrict a non-member parent from entering the reserve; an order or agreement can then set off-reserve exchange points.

The family home on reserve

This is the area where the rules differ most. Off reserve, provincial or territorial law decides how a family home is shared. Indigenous Services Canada explains that the Supreme Court of Canada ruled in Derrickson v. Derrickson that, because reserve lands are under federal jurisdiction, some provincial laws could not apply to matrimonial real property on reserve. The Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) was passed to fill that gap.

Who it applies to

According to Indigenous Services Canada, FHRMIRA applies to married couples or common-law partners living on reserve where at least one partner is a First Nation member or a status Indian. Legal Aid BC adds that it applies even if only one of you is a member or status Indian, and that a common-law relationship means living together for at least a year.

Each First Nation may pass its own law on family homes; until it does, provisional federal rules apply. Indigenous Services Canada reports that, as of February 2022, 17 First Nations had their own laws under FHRMIRA, another 40 had laws under a land code, and most others use the provisional rules. Self-governing Nations with their own land arrangements are generally outside the Act. So the first question is which rules apply to your Nation. The band office or a lawyer can tell you.

What the provisional federal rules do

Equal right to occupy. Both spouses or partners have an equal right to occupy the family home during the relationship.
No sale or mortgage without consent. Under section 15, a spouse who holds the interest cannot dispose of or encumber it during the relationship without the free and informed written consent of the other, whether or not the other is a member.
Exclusive occupation. Under section 20, a court can order that one spouse alone may live in the home, for a period it chooses. It must consider, among other things, the best interests of children living there, including a member child's interest in keeping a connection with the First Nation; any agreement between you; the collective interests of members in their reserve lands and the representations of the First Nation council; any family violence; and whether other suitable housing exists on the reserve.
Emergency protection orders. Under section 16, where family violence has occurred and the situation is urgent, a designated judge can make an order for up to 90 days. Indigenous Services Canada notes this can include sole occupancy and, in remote areas, applying by phone, email or fax. Whether judges have been designated depends on the province: the Clicklaw wiki, last reviewed in 2018, said BC had not designated any and that BC Family Law Act protection orders remain available on and off reserve. Check the current position where you live.

Dividing value, not land

Under section 28, when the relationship breaks down each spouse is entitled to one half of the value of the interest in the family home held by either of them, with further amounts where both are members. In practice this usually means compensation, not a transfer. Indigenous Services Canada explains that the provisional rules do not allow non-members to permanently gain possession of reserve land. A non-member spouse is entitled to a share of the value of structures such as the house, but not the land itself, and courts cannot force the sale of a home on reserve land. Under section 31, a court can order an interest transferred only to a spouse who is a member of that First Nation, and only in limited situations.

Many on-reserve homes are held under a Certificate of Possession, which gives the right to occupy but not ownership of the land. The Clicklaw wiki notes that because the federal government issues these certificates, a BC court cannot order a Certificate transferred under the provincial Family Law Act; the holder usually compensates the other spouse for their interest, if it has value. Custom allotments are treated differently again, and are worth raising with a lawyer.

A three-year time limit

An application to determine what one spouse owes the other under these rules must be made within three years after the day you stopped living together (section 30). Do not let this pass while you wait for the other person to engage. Our guide to why the separation date matters explains how to record it.

If a partner dies

The provisional rules give a surviving spouse or partner the right to stay in the family home for 180 days after the death, whether or not the survivor is a member or holds an interest, and to apply for longer occupation.

Who has standing: when a First Nation has a voice in your case

"Standing" means the right to take part in a court case. Sometimes a First Nation, not just the parents, is heard:

Exclusive occupation on reserve. FHRMIRA requires the court to consider the representations of the First Nation council about the cultural, social and legal context.
Treaty First Nations in BC. The Clicklaw wiki explains that under sections 208 and 209 of BC's Family Law Act, in certain proceedings about a Nisga'a child or a child of another treaty First Nation whose final agreement provides for it (it names Tsawwassen and the Maa-nulth First Nations), the Nation must be served with notice, has standing, and the court must consider its laws and customs. Section 210 gives a treaty First Nation standing where its treaty lands are in issue in a property dispute.
Child protection is a separate system. Legal Aid BC notes that bands, Indigenous communities and treaty First Nations may be able to become a party to a child protection hearing.

Support when income is tax-exempt

The child support tables assume the paying parent pays income tax. Section 19(1)(b) of the Federal Child Support Guidelines lets a court impute income to a spouse who is exempt from federal or provincial income tax. In practice this is called a gross-up: the court treats the tax-free income as the larger taxable income that would leave the same amount after tax. The Clicklaw wiki gives an illustration of $40,000 of tax-exempt income being treated as $55,000 if that is the taxable equivalent, and notes the same approach is used for spousal support. The real figure depends on the tax rates for your province and year, so have a lawyer or accountant calculate it before it goes into an agreement. Bring proof of which income is exempt and why.

Off reserve, including for most Métis and Inuit families, provincial or territorial property law applies instead of FHRMIRA. The heritage factor in the Divorce Act applies to every Indigenous child, wherever they live.

Finding culturally safe help

A 2023 report for Justice Canada found that cost is one of the biggest barriers Indigenous families face in family justice, and that interviewees described racism and a lack of cultural understanding among some professionals. It also found that civil legal aid applications from self-identified Indigenous applicants had a higher approval rate than the general population (81% compared with 76%). If cost is a worry, apply for legal aid before assuming you will not qualify. See legal aid and low-cost help.

Indigenous-led and Indigenous-focused services to try first:

In BC: Legal Aid BC (1-866-577-2525) and its Indigenous Community Legal Workers; the UBC Indigenous Community Legal Clinic (1-888-684-7334); the Native Courtworker and Counselling Association of BC (1-877-811-1190). Clicklaw's HelpMap lists local services.
In Ontario: Aboriginal Legal Services in Toronto runs a legal clinic, courtworkers and family programs (1-844-633-2886).
Elsewhere: your band office, Friendship Centre or provincial legal aid can point you to local Indigenous courtworker and legal services.

When you contact a lawyer through the FairWell directory or elsewhere, it is reasonable to ask how much experience they have with FHRMIRA, on-reserve property and Indigenous clients.

What to do now

Write down your separation date. The three-year clock for on-reserve home claims runs from it.
Ask the band office which rules apply to the family home.
Find the paperwork: Certificate of Possession, allotment records, receipts for improvements, and income records including proof of tax-exempt income.
Do not sign or mortgage anything about the home without legal advice.
Write down your child's cultural life as it is now, so the plan can protect it.

When to get professional help

Get legal advice early if the family home is on reserve, if your partner holds a Certificate of Possession or custom allotment, if either of you has tax-exempt income, if a treaty First Nation may have standing, or if there is any family violence. When you are ready to put terms on paper, FairWell Separation Agreement Prep helps you organise disclosure, parenting and property terms for a lawyer to review.

This guide is general information, not legal advice. Laws, First Nation laws and court practice change. Confirm your position with a lawyer who knows the law in your province and, where relevant, your Nation.

Sources

Common questions

Does my child's Indigenous heritage decide which parent they live with?

No. The Divorce Act requires courts to consider a child's Indigenous upbringing and heritage, but as one factor among many. Legal Aid BC notes that it does not outweigh the other factors and that courts look at the actual cultural practices each parent can offer. A parenting plan that protects the child's connection is usually the strongest step either parent can take.

I am not a band member. Can I get a share of our home on reserve?

Under the provisional federal rules in FHRMIRA, a spouse or common-law partner is generally entitled to half the value of the interest in the family home, whether or not they are a member. A non-member cannot gain possession of reserve land, so the share is usually paid as money for the value of the house, not the land. Check first whether your First Nation has its own law, because it may set different rules.

Is there a deadline to claim for the family home on reserve?

Under the provisional federal rules, an application must be made within three years after the day you stopped living together. A First Nation's own law may have a different limit. Record your separation date and get advice well before the deadline.

How is child support worked out if the paying parent's income is tax-exempt?

The Federal Child Support Guidelines allow a court to impute income to a parent who does not pay income tax. The tax-free income is grossed up to the taxable amount that would leave the same money after tax, and support is calculated on that higher figure. The same approach is generally used for spousal support.

Where can I find Indigenous-led legal help?

In BC, Legal Aid BC's Indigenous Community Legal Workers, the UBC Indigenous Community Legal Clinic and the Native Courtworker and Counselling Association of BC are good starting points. In Ontario, Aboriginal Legal Services in Toronto runs a legal clinic and courtworker programs. Elsewhere, ask your band office, Friendship Centre or provincial legal aid office for local Indigenous courtworker services.

Plan for your child's whole identity

The FairWell parenting plan lets you write culture, language, ceremony and extended family into your schedule, in terms both homes can follow and a lawyer can review.

Start your parenting plan

This guide is general information for parents, not medical, psychological or legal advice. It draws on published research and guidance from recognised health and family justice bodies, listed under Sources. Every child and family is different. If you are worried about your child or yourself, talk to your family doctor or a qualified professional. FairWell can help you find one through the professional directory. How we write and check our guides.