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ABORIGINAL HERITAGE IN A PRIVATE CUSTODY DISPUTE

by Daniel Gloade on December 15, 2014

There is an interesting decision from the Superior Court of Justice regarding children of aboriginal heritage.  It is called Veenstra v. McCabe and you can find it here.

There was an aboriginal father and non-aboriginal Mother.  The Mother died in a car accident.  The overall matter was a custody fight between the Father and the Mother’s sister (child’s maternal aunt).

The Father, and hence the child, is a member of the Batchewana First Nation.  The Batchewana First Nation brought a motion to be added as a party in the custody proceeding. The decision cited above deal with this motion only.

Justice E. Gareau first noticed a discrepancy between child protection cases and “private” custody cases.  When dealing with a child protection matter (a child protection agency intervenes on behalf of the children) then the relevant statute is the Child and Family Services Act, R.S.O. 1990, c. 11 s. 37(4).   You can find it here.

 (4)  Where a person is directed in this Part to make an order or determination in the best interests of a child and the child is an Indian or native person, the person shall take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child’s cultural identity.

Section 39(1) of the same act gives representatives of Native Governments the right to be a party in the proceedings.

The test is the best interests of the child.  This test is the same regardless if the legal dispute is a contest between two individuals or between individuals and a Child Protection Agency.

Justice E. Gareau observed that the statute governing private custody disputes (Children’s Law Reform Act) does not provide special provisions regarding the native status of children.    He did concede, however, that the preservation of a child’s bond with his Native ancestry is a factor in determining the child’s best interests.

Justice E Gareau recognized that, although the Batchewana First Nation had an interest in the proceedings and its outcome, its legal rights would be unaffected.  There was no danger that the final order would be to the benefit or detriment of the Batchewana First Nation.  He denied the motion to add the Band’s motion as a party.

Could the Batchewana First Nation make oral submissions as an intervener or friend of the court?  Although Justice E. Gareau did not exclude the possibility in general, he held that, in this case, the added complexity of the case outweighed any benefits from the Band’s submissions.

Justice E. Gareau held the lawyer for the Father could bring in evidence regarding the benefits of a child’s bond with his Native ancestry him or herself.

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