Why do so few Indigenous women engage with the family law system?

woman holds childs hand

At the 2019 Annual Gathering of Family Court Support Workers, Indigenous lawyers and leaders, Jeffery Hewitt and Bev Jacobs, discussed “Reconciliation and Indigenous Voices in our Work”. During this session, Jeffery made the point that FCSWs likely don’t see a lot of Indigenous women in the course of their work. We heard from workers wanting to know more about this, so we reached out to Jeffery and Bev for their comments. This article incorporates what they shared with us as well as other information we thought would be helpful to you in your work.

Jeffery shared this:

When I said you don’t normally see Indigenous women in family court, it is because the legal system does not support them – particularly with the Indian Act and on-reserve property and rights – rather than intending to imply or leave the impression these matters are being addressed elsewhere.  In other words, the laws of Canada in relation to family law do not always function the same for Indigenous women and families because there are larger, ongoing ways that the law works to exclude. Sorry I don’t have a more positive response to offer.

There are (and continue to be) to varying degrees and practices, family laws that can be found in Indigenous legal orders, which also continue to go unrecognized by Canada and Canadian family law courts. I believe Bev made this point and illustrated through the many examples she provided, including the ceremonies for young people as they become adults and the process by which this happens, which is centred around family law and practices.

Aboriginal/Indigenous Family Court Support Workers

A number of programs that provide support to Indigenous families involved with family court, including child protection court, operate in different parts of Ontario.

Alternatives to court for families dealing with child protection issues

The Nishnawbe Aski Nation, which encompasses 49 First Nations in northern Ontario, runs a program called Talking Together, which offers a restorative approach for dealing with child welfare for members of their communities.

The process is based on bringing families and community members together in  circle formation to discuss solutions that will keep children and families together.

In Toronto, Aboriginal Legal Services’ Giiwedin Anang Council operates from the principle that the Indigenous community knows best how to help community members in need. The GAC allows parents, children, extended family, child welfare authorities and others with concerns for a child’s future to get together to develop a plan that will meet the needs of the child.

Family Law Information for Indigenous Families

The Ministry of the Attorney General has produced a Family law Information video for Indigenous families. Unfortunately, it is available only in English and French.

Possible best practice

New Westminster, British Columbia, has established a pilot project to better serve Indigenous families dealing with child protection issues.

The Aboriginal Family Healing Conference Conference aims to:

  • reduce the over-representation of Indigenous children in care by providing cultural interventions that can increase the effectiveness of child protection court processes
  • reduce the number of cases that proceed to trial
  • improve health, social and justice outcomes for Indigenous families and children dealing with the child protection system

Elders, parents and extended families work together first to develop a Cultural Safety Agreement that frames the conference (which replaces the usual case conference), and continue working together to create a Cultural Family History Healing and Wellness Plan.

Learning more

  1. In 2001, the federal Department of Justice hosted a workshop with Aboriginal organizations from across the country to hear their perspectives on custody and access issues as part of a cross-country consultation on these issues. Below are a few of the key points that arose at that workshop, but the report about it, which is very short, is well worth reading in its entirety:

Workshop participants noted the following, which underscore Jeffery’s comments above about the lack of Indigenous families in the family law/court system:

    • Indigenous children need continuous support from extended family, which includes their Clan family, teachers, elders and spiritual leaders, not just their two biological parents
    • Children need to be asked directly what they want, by someone they trust and who understands their culture
    • Elders, medicine people and traditional healers must be given the same legitimacy in family court proceedings as are mainstream psychologists and social workers
    • The role of traditional teachings must be acknowledged and recognized in custody and access situations
    • Many women do not disclose abuse to authorities because they don’t want to have to leave their communities and possibly their children to go into a shelter
    • Families avoid the legal system in order to ensure their children’s best interests are protected
    • Many women are more afraid of child protection authorities than they are of their abuser
    • The family court system is too intimidating
    • Families cannot afford extended legal battles

Some of the suggestions for changes included:

    • More use of community-based mediation
    • Court-ordered swear lodges for families to resolve differences
    • Education and training for lawyers, judges and other court officials about Indigenous cultures, traditions and values
    • An understanding by the family court system that there are many distinct Indigenous cultures, not just one
  1. Klingspohn, Donna. (2018, June). The Importance of Culture in Addressing Domestic violence in First Nation Women. Frontiers in Psychology, Policy and Practice Reviews. Vol. 9, Article 872.
  2. Aboriginal Healing Foundation Research Series. (2003). Aboriginal Domestic Violence in Canada.
  1. Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls” , which notes a number of suggestions to assist survivors of violence navigate legal systems, in particular, at pages 159 – 160 of Volume 1b,:
    • Indigenous legal advocates to help orient survivors and families within the legal system and to accompany survivors when giving statements
    • Information kits for survivors and families with resources, service directories and orientation to the legal system
    • Support for Elders or family members to accompany survivors when giving statements – if women are properly supported they can give a better testimony
    • Increased cultural and spiritual supports for survivors, including during court proceedings
    • Interpreters for Indigenous language speakers as well to help survivors and families understand legal terminology
    • Community based spaces for access to justice, access to legal counsel and spaces where survivors may feel more comfortable such as an Indigenous Friendship centre
    • Increased victim support services in remote communities
    • increased support services, especially for survivors of family violence, including safe houses, financial aid, transportation to flee unsafe circumstances and legal advice for the enforcement of emergency protective orders