L.L v A.I, 2023 BCSC 1503.
Summary
This is an appeal from provincial court pursuant to section 233 of the Family Law Act (FLA). The Trial Judge (TJ) ordered that the child primarily reside with A.I. (non-Indigenous parent) and decisions related to education be made by A.I. L.L. (Indigenous parent) appeals on the basis that the TJ erred in interpretation and application of the law. L.L. submits…
Read Full Text ▼This is an appeal from provincial court pursuant to section 233 of the Family Law Act (FLA). The Trial Judge (TJ) ordered that the child primarily reside with A.I. (non-Indigenous parent) and decisions related to education be made by A.I. L.L. (Indigenous parent) appeals on the basis that the TJ erred in interpretation and application of the law. L.L. submits that the TJ insufficiently considered important evidence and gave excessive consideration of the mother’s heritage. A central issue is how the child’s Indigenous heritage should be considered in the best interests of the child analysis. Regarding this issue, the court stated that section 37 of the Provincial legislation is broad enough that the specific factors referred to in the Federal Act do not need to be incorporated. The court found no error in the TJ’s reasoning and dismissed the appeal.
Region
British Columbia
Treaty Region(s)
N/A
Date
2023-08-28
Nation Name
None.
Jurisdiction
- BC: Supreme Court of British Columbia (BCSC)
Case Year
2023
File Type: application/pdf
File Size: 227 KB
Case Brief
Case Link
(www.canlii.org)
Issues
Did the TJ err in his interpretation of the law?
Did the TJ give too much consideration to the Indigeneity of the child?
Relevant Excerpts
[29] It will be recalled the TJ referred to the Supreme Court’s decision in Van de Perre, in which the Court stated at para. 40 that race can be a factor in determining the best interests of the child, due to its connection to the culture, identity and well-being of a child.
[38] I agree with the court in K.K.M. that in considering the best interests of a child under s. 37 of the FLA it is open to the court to consider the maintenance of cultural continuity for an Indigenous child. Indeed, I would consider it an error in principle not to consider the maintenance of an Indigenous child’s identity in determining their best interests. In this connection, I would note that while s. 37 does not refer to indigeneity, s. 41(e) of the FLA does, providing that parental responsibilities include “making decisions respect the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including, if this is an Indigenous child, the child’s Indigenous identity.” This underscores the importance of Indigenous identity to Indigenous children.
[39] With respect to the court in K.K.M., however, I would not go so far, in the absence of legislative amendment to the FLA, as to specifically incorporate the factors referred to in other statutes such as the FNIMCYFA and CFCSA in considering the best interests of an Indigenous child. It is unnecessary to do so in any event, as the s. 37 factors are sufficiently broad and open-textured to permit the court to consider factors relevant to a child’s Indigenous heritage in assessing their best interests.
Case History
None.
Legislative Citations
Family Law Act, SBC 2011, c 25. (FLA)
Sections 37; 41(e); 233
Child, Family and Community Service Act, RSBC 1996, c 46. (CFCSA)
Section 4
Case Law Considered
R v REM, 2008 SCC 51 (CanLII), [2008] 3 SCR 3.
Wewaykum Indian Band v Canada, 2003 SCC 45 (CanLII), [2003] 2 SCR 259.
Van de Perre v Edwards, 2001 SCC 60 (CanLII), [2001] 2 SCR 1014.
Kane v Proffitt, 2018 BCCA 106.
Hokhold v Gerbrandt, 2017 BCSC 1246.
Fraser v Ksenych, 2022 SKCA 93.
Tags: Application of the Act,
Best interests,
Cultural continuity
