We have written in the past about the unique challenges First Nations families in Canada have and continue to face with respect to child protection matters and the manner in which these cases are handled by our federal and provincial governments. Canada has a long history of denying the importance of keeping Indigenous children in their communities and to maintain a connection to their culture to ensure they continue to foster a sense of their own culture when First Nations children were apprehended from their homes. In most cases, children were placed with white families and cut off from their own culture, robbing them of their own rich history and strong community ties.

Part of the way Canada has sought to rectify these practices has been to introduce legislation and policies designed to focus on the needs of First Nations children and families. A big step was the passage of Bill C-92 (An Act respecting First Nation, Inuit, and Metis children, youth and families) in 2019, which has four central goals:

  1. Focus on the best interests of Indigenous children
  2. Prioritize services aimed at preventing child apprehension
  3. Prioritize keeping children within their communities if apprehension is necessary
  4. Prioritize sharing or transferring jurisdiction over child protection matters to Indigenous communities, groups and individuals

First Nations Parenting Matters in Family Law Decisions

This question of whether a non-Indigenous judge could fairly decide the fate of Indigenous children was raised at a recent preliminary matter in a case involving the question of child custody between an Indigenous mother and, presumably, the children’s father. The mother filed an application requesting that the judge on the case recuse himself in favour of an Indigenous judge. In doing so, the mother cited the fact that a non-Indigenous judge could not appreciate the importance of keeping her children connected to their Indigenous heritage and community, which would go against their best interests.

She also raised the intergenerational trauma she and her family had suffered due to the Sixties Scoop, a decades-long period during which thousands of Indigenous children were removed from their family homes and placed with non-Indigenous foster parents or adoptive families.

The mother claimed that a non-Indigenous judge could not fully appreciate the trauma inflicted by the Sixties Scoop or the legacy of Canada’s residential school system on Indigenous communities. She claimed she and her children were discriminated against by judges who did not take these issues properly into account when ruling on family law matters.

In his ruling, Justice Glass stated:

The Family Law Act…governs this proceeding, and there is no current program in Alberta applying Indigenous law or traditional dispute resolution to family law disputes of this nature. The Family Law Act, does, however, require me to consider “the child’s cultural, linguistic, religious and spiritual upbringing and heritage” in weighing the “best interests of the child” in this matter.

Should There be a Focus on Appointing Indigenous Judges to Family Law Cases with a First Nations Connection?

As discussed above, Canada has been working to place more control in the hands of Indigenous communities to oversee child protection issues. In addition, there is a system in place across the country for criminal matters when an accused is Indigenous, enabling them to be tried in what is called a Gladue Court. These courts apply Canadian criminal law principles while also incorporating traditional cultural practices and consider Indigenous understandings of justice when deciding on various criminal matters. It could be argued that a similar system could be applied to non-criminal matters as well.

Particularly in family law cases, where the fate of young children is often at stake, it seems that instituting a similar focus on cultural significance while incorporating traditional practices and values could be of great benefit.

For now, the judge in the case at hand ruled that, despite his non-Indigenous status, he felt he could rule on the matter impartially:

“I am satisfied that I can rule fairly and impartially in this matter even though the applicant’s Indigenous background and life circumstances are different from my own.”

“Without any record of prior statements or decisions demonstrating that I am, or any of my peers are, unable to approach judging the applicant and her matters fairly or impartially, I am obliged to dismiss this application.”

The family law lawyers at Mincher Koeman regularly work with First Nations on child protection and other matters. We are passionate advocates of the rights of First Nation children to maintain cultural and community connections. We understand how the system works, and we know how to effectively challenge or advocate at each stage. To discuss your matter with one of our experienced lawyers, please contact our office by calling us at 403-910-3000 or by contacting us online.

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