REPORT ON FEDERAL-PROVINCIAL-TERRITORIAL CONSULTATIONS

APPENDIX B: REPORT ON ABORIGINAL WORKSHOP

INTRODUCTION

A workshop on Aboriginal perspectives on custody and access was held in Ottawa on June 25, 2001. The workshop began with an opening prayer and greeting from an elder of the Bear Clan. In the opening ceremony the elder explained the smudge tradition, including all of the medicines and their healing properties. The elder also spoke about the Creator and the importance of knowledge of the spiritual world.

With respect to the discussion topics, the elder reflected on the responsibility of parents and elders to give children the guidance they need to ensure they have a good life in all ways. The elder also mentioned the importance of values, especially those of the family. He emphasized that elders, particularly grandfathers and grandmothers, are significant, since they have experienced life to the fullest. Elders possess a wisdom that must be acknowledged and respected. Additionally, the Bear Clan elder mentioned the gifts of Mother Earth, such as water and food, and the importance of acknowledging all of creation.

The opening ceremony concluded with a prayer in the elder's own language.

The following topics were discussed in the workshop:

  • the best interests of children from the Aboriginal perspective;
  • the roles and responsibilities of parents; and
  • custody and access issues concerning Aboriginal peoples.

The facilitators of the Aboriginal workshop were Mark Dockstator and Deborah MacGregor.

SUMMARY OF THE DISCUSSIONS

BEST INTERESTS OF CHILDREN

From your perspective, identify the needs of children when parents separate and divorce (e.g. cultural and familial systems)
Community and Extended Family

Participants said children need continuous support from the extended family and the Aboriginal community. The extended family goes beyond the immediate family to include the clan family, encompassing teachers, elders and spiritual leaders. Participants noted that although there are various definitions and perceptions of the family and community, the Aboriginal perspective must be acknowledged and respected. Therefore, it is necessary that the courts and legal system acknowledge the Aboriginal community's input regarding the best interests of children. The Aboriginal community is considered vital to the healthy spiritual development of children.

Participants expressed concern that women in situations of violence are often taken to shelters too far away from the community, and are unable to maintain contact with their children. Participants suggested that the perpetrator be removed from the home and that the mother and children stay within the community.

Children Have Different Needs

Participants agreed that children must feel grounded-culturally, spiritually and emotionally. They need to be prepared for adulthood through the teaching of traditional values, knowledge and responsibilities about what it means to be a woman or a man. Participants emphasized that monetary wealth is not as important as cultural wealth in Aboriginal communities. It is important to ask children what they want and to respect their views and opinions. Children need to lead a good life; they should be taught to follow the guidance of the medicine wheel, focusing on kindness, honesty and a strong identity.

Participants discussed the need to avoid the legal system to ensure children's best interests are protected. They acknowledged that children are very perceptive and that they all have individual needs. Factors influencing children's needs are age, culture, spiritual background, relationships, family history and safety from violence.

Support Services

Participants said that there must be adequately trained intervention services to ensure that all of children's needs are met. In some cases, the participants suggested, the children's best interests might be better protected in the city (off reserve) because of the availability and accessibility of resources and services. Information must be provided to children in a clear and comprehensible format for them to understand.

Mediation

Participants suggested a mediation service that would comprise an elder as facilitator of the discussion between the parents. The mediation and discussion would focus primarily on the best interests of the children (e.g. their spiritual and social development). The "circle" was suggested as one way to assess these interests since it ensures that there is equal participation by service providers, families and elders in the discussion.

How can an understanding of the children's perspective be gained? Identify an appropriate approach.

To help understand a child's perspective, participants suggested that those who are close to the child (e.g. siblings) could speak to him or her. Also, much can be learned from observing the child's actions. If a psychological assessment is to be done, participants felt that an elder should be involved to ensure that the child is properly heard and understood. Children should have choices about to whom they speak.

ROLES AND RESPONSIBILITIES

Describe the roles and responsibilities of parents to their children after separation or divorce.
Responsibility of Parents and Extended Family

Children are the responsibility of all family members, including the extended family. Workshop participants said that, even after separation and divorce, the responsibilities of the family do not change. The elder who opened the workshop gave the example of the Naming Ceremony, in which a "sponsor," who is not biologically related to the child, is honoured with tobacco and accepts the responsibility of being a caregiver. With regard to grandparents, the elder explained that a grandchild is a "double blessing," and grandparents have responsibility for both their own child and the grandchild. Participants agreed with the elder on the importance of striving to give children a good life, and emphasized that parents must realize that children are "sacred beings" and a gift from the Creator. Participants also noted that parents may need counselling, education and support to ensure they meet their responsibilities.

Teachings and Knowledge

It is necessary to foster the spiritual life of children to ensure their healthy development and to help them maintain an awareness of their identity throughout life. Children must be taught understanding, purpose and reason. The elder also spoke of the symbolism of fire and water as representing male and female energies. These symbols are part of the ceremony of marriage and are the medicine of men and women. The caregiver must ensure that children receive this good medicine.

Changing Needs of Children

The connection among family members is very significant in distinguishing roles and responsibilities of parents. Workshop participants acknowledged that parental roles are, in many instances, specific to the sex of the child. For example, girls going through puberty and entering womanhood should have the opportunity to learn from their mother and grandmothers. Parents and caregivers also must recognize the "fast-life" stage for adolescents, as this is most often when children are in need of help. The elder noted that there are certain ceremonies that celebrate this rite of passage.

Community Support

Participants emphasized that the community is responsible for the support and care of the children, and identified a need for more positive role models in the community to ensure a safe and healthy life for children. Participants stressed that support services should recognize the ability of the extended family to care for a child rather than child welfare programs or foster parents. A strong sentiment was voiced about the impact of removing a child from an Aboriginal setting. Participants agreed that all variables should be considered when determining custody and access, and that there should be regulations allowing the community to go to court and to have input into custody arrangements. Participants said there should be legislation to compel judges to consider Aboriginal values in custody disputes between Native and non-Native parents.

Financial Support and Custody Arrangements

Some standards are in place to effectively assess who is capable of providing financially for children, but participants expressed concern about who would be financially responsible when both parents are receiving financial assistance prior to the separation. In addition, participants asked questions about the treaty obligations of the government when one parent is allocated financial responsibility. There is a need to clarify what exactly are the parents' financial obligations.

CUSTODY AND ACCESS

What are the custody and access issues concerning Aboriginal peoples?

One of the primary concerns of the participants was children's loss of culture and traditional knowledge when they are removed from their home. A participant explained that when children are taken away from the community, they are not able to experience and learn the traditional ways that are unique to their heritage. Another participant added that there is a great need for culturally sensitive and accessible support services, especially in the North.

Inuit Communities

An Inuk explained how Inuit have little access to services and, while willing to work with the government, have received no resources or responses to their requests for support. Inuit have limited access to the legal system due to inadequate financial resources, and they cannot afford lengthy court battles. However, traditionally there are few divorces among Inuit, as elders provide guidance in disputes, and the courts are used only when a solution cannot be found.

Inuit single parents, especially women, face great difficulties. For example, many Inuit women who are victims of violence do not seek legal action since the court puts the onus on women to prove their case, which creates an intimidating environment for them. Moreover, in remote communities, people may have to wait months before the circuit court comes, and when it does, the proceedings are not private; rather, they are held in front of the community. Because Inuit do not rely on the legal system, women do not usually get court orders, so when a kidnapping occurs, for instance, the RCMP cannot respond.

Many women do not have work in the communities, and in some places there is little access to education and training. Also, Inuit women may be at a disadvantage when their ex-partner is non-Native because he is more knowledgeable and comfortable in a court setting. Participants emphasized that the system should take into account how many women had partners who have returned to life in the South and have abandoned their children in the North. In some cases, children have been relocated to the South, making it difficult for the parent in the North to spend time with them (airfares to and from the North are expensive). Finally, many information booklets are not printed in Inuktitut and are often not relevant to northern women.

Culture

The Métis, Inuit and First Nations are Canada's Aboriginal people. Each group or First Nation within these broader categories has distinct cultural characteristics and lifestyles. Workshop participants generally agreed that the cultural perspective is the key factor in determining custody and access. They also repeatedly emphasized the importance of maintaining culture and language.

Participants discussed the differences between the South and the North in response to a statement that divorce statistics in the South have no relevance in the North. The cultural divide separates Natives from non-Natives. The Aboriginal way of raising children is based on patience, love, communication and teaching responsibility. Moreover, children have a right to the cultural heritage of both parents. Because children who leave or are removed from the Aboriginal community lose contact with their culture, it is difficult for them to reintegrate with the other parent living in the Aboriginal community. For example, a child taken away from his or her mother loses vital nurturing time. Participants also placed importance on the need for children to eat traditional foods.

Participants suggested that cultural and heritage programs need to be developed for children both on and off reserve, and especially for Aboriginal children living in urban areas.

Extended Family

The significance of the Aboriginal family in the nurturing and development of Aboriginal children was a central part of the discussion. Participants explained that it is important for children to maintain relations with the extended family. There is a need to establish what rights and obligations the extended family has, and to ensure that grandparents have access.

Participants said that ways should be found to help heal parents who have been denied access to their children, and to help them cope with the long-term impact of the parent-child separation. In addition, participants pointed out that there is a significant impact when family members are forced to call on services such as the Children's Aid Society (CAS).

Participants said that parents who miss time with their children should be able to make it up. One participant noted that when a child is reintegrated with his or her birth mother after living in a non-Native home, the child has often internalized racist attitudes about Aboriginal culture.

Government and Services

Participants criticized the federal government for not allowing First Nations to be self-sustaining in terms of health and resource issues. The current federal and provincial systems lack an integrated approach to improving support services for Aboriginal children and parents going through a separation or divorce. Participants suggested that governments should focus more on the important preventive factors of health, education and keeping the family together as a unit. Participants expressed specific concern about the lack of services for Aboriginal people. Although there are Native family services in urban areas, the onus is generally on Aboriginal people to organize their own services, with no financial support. Also, current services, such as the CAS and the court system, were described as extremely intimidating environments. One participant described the court system as a church with the judge (in a robe) sitting on high. Participants agreed that the system must develop a more "people-friendly" approach to the legal process, involve elders more and use traditional knowledge as an alternative to the courts. Participants felt that Aboriginal people should have the opportunity to choose the appropriate service for them.

HOW CAN THESE ISSUES BE APPROPRIATELY ADDRESSED?

Participants generally agreed that the Divorce Act should be reformed to meet all peoples' needs. The current system was described as incomprehensible and advocating "foreign ways." Any documentation produced must be clear and comprehensive, and address the issues of all Aboriginal cultures in their respective languages. There should be more focus on the Aboriginal perspective and on the family as a "whole."

New support guidelines should be developed to address various circumstances, including the obligations the Crown already has. Participants expressed concern about whether the support guidelines relieve the federal government of treaty obligations when custody is given to a non-Native parent. Are the obligations of the Crown being integrated into the support guidelines?

Participants also inquired about what calculations the federal government used to establish guidelines for child support for Aboriginal people.

CHANGES TO SERVICES

First Nations families should be more involved in victims' rights and support programs, and there should be adequate support services on reserves. Participants agreed that services must recognize the needs of various cultures and peoples, and suggested that standards and legislation be implemented to compel the courts and legal system to acknowledge cross-cultural differences. In regard to the extended family, it was explained that access and federal jurisdiction varies from region to region and there is a need for laws to be consistent across the country.

Participants proposed changes to the custody process, specifically for the CAS to become more educated about and aware of Aboriginal culture and traditions. A participant explained that members of First Nations always have to prove themselves to CAS and strive to get recognition from the courts, since there is a lack of respect for Aboriginal people in the legal system. Aboriginal women are sometimes more afraid of the CAS than of their abuser, and are hesitant to leave the abuser for fear of losing their children. A participant suggested using elders and the community to rehabilitate people, so the children would not have to be removed from home. In addition, participants said that Aboriginal knowledge should be integrated into the legal system. There is a need for expert representation of the Aboriginal perspective within the family law system. A suggestion was made to have representation specifically from band councils.

Education and Training

Lawyers, judges and other officials should be more culturally aware and sensitive. Participants specifically mentioned the need for family courts to provide mandatory training in cultural awareness, and the need for more education and sensitivity training for frontline service workers. Also, while many social workers are well informed about Aboriginal issues, there is a shortage of Aboriginal foster homes. More support is needed, too, from governments and band councils for child protection and other community services.

Awareness of Services

Participants expressed a need for education and information services beyond the Internet, since it is not a practical resource for all people. Aboriginal communities do not have access to many current sources of information and services. Participants suggested that information should be available in all languages and in all communities in the form of pamphlets and posters. Increased awareness of Aboriginal cultures could be fostered through more research and communication between Native and non-Native people. Participants suggested that a cultural awareness workshop be held in each community to reinforce Native traditions, with specific emphasis on the importance of oral tradition.

Prevention

Participants suggested that early preventive measures be included in a culturally appropriate educational curriculum. Schools must address the issue of violence, and make support services available for children and parents.

Accessibility

Some Aboriginal people do choose to use the legal system rather than the traditional way of settling separation and divorce issues. They find, though, that the timing and deadlines of the process do not recognize the inaccessibility of legal aid and support services in many Aboriginal communities.

Community

Participants placed significant emphasis on the need for governments to develop an infrastructure that focuses on improving community support. The group determined that there is a need for more community support, such as Native foster homes, Native support services (in particular, for parents who are experiencing separation or divorce) and open homes within the community.

In regard to family violence, participants expressed concern about the current rate of violence and child neglect in First Nations communities. Participants said that people are often afraid to report situations in which violence is suspected or witnessed because they fear being called "troublemakers."

Elders

Participants recommended that service professionals (such as social workers and psychologists) draw on elders to help in the divorce process. It must be recognized that elders, traditional healers and medicine people are as capable as psychologists and other service providers. Any psychological assessment or therapeutic mediation must involve an elder to ensure that all cultural differences are acknowledged. The National Elders Council is a resource that various federal departments should use. In addition, elders' expertise should be recognized and paid for.

Alternate Solutions

As an alternative to current dispute resolution methods, participants suggested family healing through the use of sweat lodges. It was even suggested that perhaps such a ceremony should be court-ordered in a high conflict situation. Essentially, participants said that the "best practices" from other services, such as circles and healing traditions, should be applied to custody and access issues.

ADDITIONAL COMMENTS

  • This consultation needs a more comprehensible discussion guide. The language and wording are too difficult, and the questions need to be restated.
  • There is a lack of awareness of the Divorce Act and related issues by Aboriginal peoples.
  • Aboriginal treaty considerations need to be incorporated into the child custody and access process (i.e. Native status, etc.).
  • A positive obligation to recognize and enhance Aboriginal culture and way of life is needed.
  • The issues facing Aboriginal people need to be properly addressed.
  • The terms custody and access should be eliminated as they have a negative effect on members of the community.
  • Aboriginal people should have more substantial involvement in changing the divorce process and more inclusion and adequate representation on the committee doing this work.
  • Aboriginals need their own internal consultation on these issues. The current consultation was too fast and the background information was provided too late.
  • Existing Aboriginal governments need to be recognized.
  • Laws and governments must speak directly to the Aboriginal people.
  • No action has taken place since the Royal Commission on Aboriginal Peoples.
  • Aboriginal people need to be involved in providing input into the system.
  • People should have a choice between the "Western" system and the traditional ways.

Organizations at the Aboriginal Workshop

  • Algonquins of Pikwakanagan First Nation
  • Assembly of First Nations, Gender Equality and Equity Secretariat
  • Canadian Heritage, Aboriginal People's Program
  • Congress of Aboriginal People
  • Kitigan Zibi Anishnabeg, Health and Social Services
  • Métis National Council
  • Mohawks of Kanesatake, Social Services
  • Native Women's Association of Canada
  • Odawa Friendship Centre, Family Support Services
  • Odawa Friendship Centre, Pre-post Natal Program
  • Pauktuutit (Inuit Women's Association of Canada)
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