Having provincial family court orders enforced on First Nation reserves is not simple. This is because First Nations fall under federal jurisdiction, according to the terms of the Indian Act of 1985. As a result, provincial court orders of any kind are not automatically enforceable.
With respect to family law, this includes custody and access orders obtained under the Children’s Law Reform Act, child and spousal support orders, restraining orders and orders for exclusive possession of the matrimonial home, as well as orders for the division of matrimonial property.
The Chief and Council of each First Nation have the authority to decide which laws and orders can be enforced on their territory. Some have made the decision that family court orders will be enforced by the band police; others have made the decision they can be enforced by the O.P.P. or RCMP, and still others have decided they will not allow enforcement of any provincial family court orders.
The enforcement of support orders is especially complicated. As you already know, the Family Responsibility Office (FRO) has statutory authority to use a variety of methods to collect child support, including garnishment of wages and bank accounts, seizure and sale of property, suspension of driving and other licences and so on.
Where both the payer and recipient are Status Indians, FRO is able to use any of its statutory powers to enforce a support order. Status Indians are federally registered members of a band or First Nation. The rules regulating who is and is not a Status Indian are complex and go beyond the scope of this FAQ. Suffice it to say for our purposes that there are many Indigenous women who are not Status Indians, and this has an impact on many issues, including the enforcement of family court support orders.
This is because, when the payer is a Status Indian and the recipient is not, the ability of FRO to enforce a support order is limited by the Indian Act, which does not permit FRO to take any enforcement action against property or income that is located on reserve. In other words, if the payer works on his First Nation, that income cannot be garnished to satisfy a child support order if the recipient is not a Status Indian. The same is true with respect to the seizure and sale of on-reserve property.
FRO can garnish any wages earned off-reserve and can seize and sell off-reserve property and can suspend the payer’s driver’s licence.
This places Indigenous women who are not Status Indians and their children in a very vulnerable position that can leave them living in poverty even when they have an otherwise enforceable support order from family court.
If you are working with an Indigenous woman who is seeking enforcement of family court orders, you should gather information about whether she and/or her former partner are Status Indians, where her former partner is employed (on or off reserve), where any property he may own is situated and what the policy of the relevant First Nation is with respect to enforcement of family court orders.