In the British Columbia Family Law Act, (FLA) Part 4, Division 7 – Extra-provincial Matters Respecting Parenting Arrangements, there is legislation designed to ensure the best interests of the child are met. The Court is guided by best interests on numerous factors including:
- the child’s health and emotional well-being;
- the views of the child if appropriate;the nature and strength of relationships between the child and significant persons;
- the child’s history concerning their care;
- their need for stability taking into consideration their age and stage of development;
- the ability of a guardian or the person seeking guardianship or parental responsibilities to exercise such responsibilities, considering access, parenting time, and contact with the child;
- family violence;
- the safety or well-being of the child;
- appropriateness of arrangements;
- cooperation on issues; and
- other court proceedings.
In addition to best interests, there are guiding principles that must also be adhered to including:
- protection of the child from abuse, neglect, harm or threats of harm;
- family as the preferred environment and responsibility for protection resting primarily with the parents;
- any available support services;
- the ability of a family in providing a safe and nurturing environment;
- the child’s views;
- kinship ties and preserving as much as possible a child’s attachment to extended family;
- the preservation of the cultural identity of Aboriginal children; and
- decisions being made and implemented in a timely manner.
In preserving cultural identity of Aboriginal children, this speaks to specifics such as where the aboriginal child has his or her aboriginal roots. The legislation defines an Aboriginal child as a child that is registered under the Indian Act, has a biological parent that is registered under the Indian Act, or who is a Nisga’a child, or a treaty first nation child, or one that self identifies to be Aboriginal and has Aboriginal ancestry. The definition is broad enough to encompass all children of Aboriginal ancestry including Metis, and there are no fractions or blood quantum restrictions.
An interesting case was before the B.C. Court of Appeal back in the late 1990s where a similar issue was raised under Article 13 of the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention“). In Hoskins v Boyd  B.C.J. No. 958, it was argued that, “the child will suffer grave risk of psychological harm if removed from his mother, who lives in an aboriginal community …, and placed with the father … in a non-aboriginal community in Oregon until final resolution of custody … The grave risk now said to be facing the child is the psychological harm likely to be caused by his dislocation from the aboriginal culture in which he and his mother have again lived since they returned from Oregon”.
The BCCA stated: … “the risk of harm alleged must go beyond the normal disruption expected on the removal of a small child. The situation must be intolerable.…Hoskins v. Boyd is useful in that it states: “The longer the child remains in one culture the more difficult it becomes to shift to another”. It is this feature that must be considered in the test for best interests of the child.. This is a severe test which the mother could not satisfy in the light of the fact that she took the child herself from the Aboriginal community in which the child was born to live in the father’s non-Aboriginal culture. In addition, Austin is a very young child and his enculturation in the Aboriginal community has developed only over the last 7-8 months.”
While psychologists, Elders, etc. supplied affidavit evidence speaking to the child’s best interests from an Aboriginal perspective, that evidence was not fully considered because the child was of mixed ancestry and that the Convention only covers the interests of children generally and not specific to individual circumstances, noting that “the courts of the requested state shall not decide on the merits of custody until they have determined that a child is not to be sent back under the Convention”. The risk of physical or psychological harm or otherwise that would place the child in an intolerable situation was decided upon without full consideration of the impacts to the individual child, specifically as to their s.35 Aboriginal rights as well as what the psychological harm would be for an Aboriginal child to be raised in a non-Aboriginal community or the converse, in an Aboriginal community. The BCCA decided to act under the general rule of the Convention that, “there must be prompt removal if there has been a wrongful taking and retention of a child contrary to the Convention”.
These arguments of psychological harm or otherwise were punted to the Oregon court where they could have been raised on the merits of “best interests of the child”. The BCCA decided that there was no need for prompt judicial intervention under the Convention even though, it correctly pointed out that, “The longer the child remains in one culture the more difficult it becomes to shift to another”. The BCCA also stated, “Nothing in these reasons should be taken as a commentary on the custody questions facing the Oregon court. There is a world of difference between the best interests of the child and whether an intolerable situation would result from removal”.
Getting back to the Family Law Act of B.C. with regard to best interests of the child and extra provincial matters regarding Aboriginal children, Hoskins v. Boyd is useful in that it states: “The longer the child remains in one culture the more difficult it becomes to shift to another”. It is this feature that must be considered in the test for best interests of the child. Undoubtedly, s.35 of the Constitution Act must also guide the courts in coming to any decision concerning the best interests of Aboriginal children because of their constitutionally protected Aboriginal rights which include cultural, social, political, and economic rights (socio-economic human rights).