An Indigenous woman leaving an abusive relationship must deal with all the issues faced by any woman leaving an abuser: ensuring safety for herself and her children, finding housing, making safe custody and access arrangements for her children, sorting out financial and property issues with her former partner and so on.
However, there are a number of additional issues that confront Indigenous women, who are subjected to abuse at a much higher rate (3 times) than do non-Indigenous women. Indigenous women under the age of 34 are subjected to more than 60% of that abuse.
- Colonization and the residential schools program have left a legacy of damaged families. Indigenous peoples continue to face racism, and poverty is a reality for many.
- Despite the fact that Indigenous peoples make up a small percentage of the country’s population (approximately 4.3%), half the children under the age of 14 who are in child protection care are Indigenous. This is more children than were sent to residential schools.
- Women who live off-reserve have access to some services and may be somewhat less isolated than women living on reserve. However, the disconnection from their original community can create difficulties as well. Urban Indigenous women may be reluctant to involve the police because of a lack of trust and an understandable belief that non-native police do not understand the culture. They may also fear the CAS response that often follows a police report.
- Women who live on reserve are often isolated from the larger community and any supports or services. There may be a lack of willingness on the part of the community and its leaders to support a woman who wants to leave, as the community may prefer to try to resolve its issues internally.
- Women may be reluctant to seek help outside the community because the services may conflict with traditional beliefs about healing families and communities. A woman may have dealt with discrimination outside her community, fear rejection when she seeks help, and be doubtful that she will be believed.
- Indigenous women continue to deal with issues related to their “Indian Status.” People who are “status” or “registered” Indians have access to some benefits such as housing, post-secondary education, extended health care and tax exemptions. People with Indian status are eligible to live on reserve, to own or inherit property on reserve, to have membership in Indian Bands and to participate in political and community life on reserve. Until 1985, women who married a non-“Status Indian” lost their status, and their children were ineligible for Indian status. This was not the case for men. The Indian Act was amended in 1985 to allow women, their children and some of their grandchildren who had lost their status to obtain it. However, not all grandchildren of women who married non-status men are able to obtain status.
- When an Indigenous woman enters the family court system, her traditional values and beliefs are often very different from what family law/court process can offer. While the laws (Child and Family Services Act, Children’s Law Reform Act, Family Law Act, Divorce Act) are the same for everyone, the relevance of them for and the impact of them on Indigenous women and their families may be quite different than for non-Indigenous families.
Custody and Access
At one time Aboriginal women did not have to worry about child custody and access. Women shaped the social structure and held decision-making power. Every family member held important responsibilities in the well-being of the children. It was an honour and privilege to have such significant roles in a child’s life so everyone took their responsibilities very seriously.
The belief was that no one owned the children. Each child was a blessing to be given every possible opportunity to be unique, and to receive the utmost best of teachings to bring forth a healthy and well-balanced individual.
As this description makes clear, there is a cultural divide between the value system of many Indigenous women and the laws related to custody and access. Even the language of custody and access may be offensive to women who do not think of children as property to be owned by either parent.
You have a role to play in helping the woman understand the requirements and expectations of Ontario’s custody and access regime, contained in the Children’s Law Reform Act. In particular, you can explain the best interests of the child test to her and support her in gathering evidence to support her case.
You may also be able to assist her in getting a lawyer.
Approach to violence within the family
Indigenous communities tend to be collectivist rather than individualist. As a result, many women in abusive relationships place a high value on preserving the family. These women are looking for an end to the abuse, but not an end to the relationship.
In addition, many women see their partner’s abusive behaviours as the result of damage caused to their families by colonization, residential schools and ongoing racism and poverty. They want their partners to be given the opportunity to heal and stay within their family.
It is important to understand these cultural values and realities so you can support women who want help in ending the abuse in their relationship but do not want to leave their abuser.
All children in Ontario are protected by the Child and Family Services Act, which requires services to recognize Aboriginal culture, heritage, traditions and the extended family concept. It also states that First Nations are entitled, whenever possible, to provide their own child protection services.
The CFSA contains provisions that require notification to and involvement of bands whenever possible in child protection proceedings.
There are five First Nation societies in Ontario that enforce the CFSA:
- Anishinaabe Abinoojii Family Services in Kenora
- Dilico Ojibway Child and Family Services in Thunder Bay
- Payukotayno James and Hudson Bay Family Services in Moosonee
- Tikinagan Child and Family Services in Sioux Lookout
- Weechi-it-te-win Family Services in Fort Frances
Six First Nations child protection societies apply their own standards of practice and do not apprehend or enforce the CFSA:
- Akwesasne Child and Family Services, serving the Akwesasne community in eastern Ontario
- Kina Gbezhgomi Child and Family Service in Wikwemikong on Manitoulin Island
- Kumuwanimano Child and Family Services in Timmins
- Mnaasged Child and Family Services in Muncey, near London
- Nog-da-win-da-min family and Community Services on the Batchewana First Nation, near Sault Ste Marie
- Six Nations of the Grand River Child and Family Services, in Ohsweken, near Brantford
If you are supporting a woman who is involved with one of these child protection authorities, it is important for both of you to know what standards of practice they are using.
For the reasons noted above, including the disproportionately high rate of Indigenous children who are taken into care, the woman you are working with may be fearful of or hostile towards any child protection involvement with her family.
You can play an important role in providing her with support, giving her information about her rights and engaging in advocacy with the child protection authority if she asks you to. Assisting her in obtaining legal representation is also critical.
The Family Law Act, which deals with division of property issues, excludes family property rights on reserve because it is a provincial law. It does not apply to reserves, which fall under government jurisdiction. This means a woman whose matrimonial home and other property are on reserve cannot turn to the Family Law Act for an equalization of family property.
The Family Homes on Reserves and Matrimonial Interests or Rights Act was passed by the federal government in 2013. It sets out a regime to govern the division of family property, the right of parties to remain in the matrimonial home and emergency protection orders for people living on reserve.
Unlike the Family Law Act provisions dealing with the division of property, which apply to married spouses only, this legislation applies to both married and common-law spouses.
The new law gives Indian Bands the authority to create their own rules for property. When a Band does so, it is those rules that apply. Otherwise, it is the federal legislation that will apply.
Women have more protection under this legislation than they had in the past; however, there are still a number of barriers for women dealing with an abusive spouse or common-law partner.
Enforcement of orders
Orders made under provincial family law (Child and Family Services Act, Children’s Law Reform Act, Family Law Act) have no authority on reserve, which fall under federal jurisdiction. As a result, women may have difficulty getting custody, access, support or restraining orders enforced on reserves.
If you are working with a woman who lives on a First Nation or whose children will spend time there when they are with their father, you can encourage her to consider approaches to her safety and to the children’s custody and access arrangements that minimize the opportunity for the abuser to take advantage of enforcement challenges.
Many women, including Indigenous women, are reluctant to enter the formal court process. They find it intimidating, their partner bullies them in his attempts to coerce them to accept an informal settlement of their legal issues and/or they may not have a lawyer.
In addition, an Indigenous woman may come from a background that values alternative approaches to dispute resolution. If you are working with a woman who wants to use mediation or other ADR, it is important for you to support her and to help her prepare for this experience. This includes working with her to make a safety plan that fits with her approach to dispute resolution
If the woman you are working with is uncomfortable swearing or affirming to tell the truth when she testifies in a family court proceeding, you can let her know that she can use an eagle feather in place of a religious book to make her commitment to be truthful. Many courts now have eagle feathers available and, when they don’t, they can usually be obtained from an Indian Friendship Centre. When someone uses the eagle feather, they make a statement similar to this one:
This eagle feather symbolizes our direct connection to the Creator for my people and I hold it in the spirit of the truth.
There does not appear to be any precedent in Ontario for smudging in place of swearing or affirming to tell the truth but, if this is what a woman wants to do, she (or perhaps you as her advocate) could approach the court to ask. She would also have to find an Elder who would be willing to do this.
Every woman you work with faces unique issues and challenges and brings her own strengths to her family law case. Because of both historic and present public policy and individual attitudes of racism, supporting an Indigenous woman requires particular knowledge and skills. You need to be familiar with the different ways the laws will affect a women, whether she is living on or off reserve. You need to understand the important cultural differences that can create barriers for her in achieving a positive outcome in her family court case. You may need to advocate on her behalf with others in the system as well as educate those people.
As with all the women you support, the starting point is to listen, offer support and ask the woman what path she wants to travel, then support her on that path.