Canadian society prides itself on recognizing and celebrating the cultural diversity of its members,regardless of ethnicity, background, and creed. For example, February isBlack History Month in Canada. A series of events and festivities across the country mark the month, to honour the legacy of Black Canadians and their communities. In family law, the recognition of cultural heritage is no different.
Canadian Family Law judges have a key role in resolving conflict that directly impacts entire families and individual members alike. This means they must be especially aware of the racial and cultural influences, traditions, and infrastructures. Those that form the background to the disputes between litigants who appear before them. To be effective, judges must collectively hone their ability to understand, appreciate, and interact with individuals from cultures and belief systems that are different from their own.
This cultural competency and sensitivity will come easier to some judges, than others. At least one American judge has written at length about the specific challenges involved in maintaining insight into the cultural influences. Insights that might affect judicial decision-making, and of avoiding inadvertent cultural bias.1
To their credit, Canadian Family Law judges have echoed this awareness, by repeatedly demonstrating sensitivity to the issue. They do so by expressly acknowledging the racial and cultural experiences and interests of the litigants who come before them. Then they reflect on those factors in the analysis and rulings that result.
This often arises in child custody, adoption, and guardianship matters. In these cases a judge may be asked to decide whether a child’s best interests are optimally served by placing them with their family of origin. Or else by placing them with a Foster family or adoptive family that is of a different heritage or background. In these cases, Family judges pay keen attention to the racial and cultural aspects of each potential placement. They then decide between them, after weighing the benefits of culture-based support and influence, as part of a large list of established factors taken into account.
For example, in a very recent B.C. Family Law case called K.K.M. v. T.J.S.2 the separated parents, both of Métis heritage, were in dispute over their children’s primary residence. Without the father’s permission, the mother had unilaterally moved the children to a different community that was quite far away. In declining to endorse the mother’s move after-the-fact, the judge noted the father had deliberately availed himself of culture-specific resources and supports in his own local community. This prompted the judge to observe that it was implicitly one of many factors necessary to take into account. In this case, when assessing the child’s best interests.
Admittedly, provincial family laws did not did not speak directly to preserving an Indigenous child’s cultural heritage and continuity. However, as the judge noted, the entire Canadian Family justice system is infused with the fundamental principle that the heritage of a child is always a factor to be considered. Especially when making court rulings that affect them.
The judge in K.K.M. v. T.J.S concluded, “the children’s connection to their Métis culture will be fostered more directly through their connections with their Métis father and grandparents”. In staying with the father, “it is in their best interest to find stability in their lives and to maintain a strong connection to their Métis culture.”
Indeed, Family legislation across the country is peppered with wording that requires courts to consider things like a child’s “exiting ties”. Or even to consider the “nature and strength of the relationships” in his or her family and broader community. Recent federal enactments also expressly mandate the interpretation of legislation in a culturally-aware manner. These factors – while not solely determinative – are amongst those aimed at nurturing and preserving a child’s cultural identity. It is part of an individual judge’s decision-making around the child’s best interests.
Next, the recent series of rulings in Neshkiwe v. Hare 4 shows how deeply-rooted the issues of racial and cultural interests can be, within the Canadian justice system. The case asks the question of whether the Ontario Family Courts have any authority at all to make parenting orders concerning a child who is a member of a First Nation. It involved a mother who returned to her First Nation community when her relationship with the non-member father ended. She asked the Ontario Courts to decline to decide any of the family law issues between them. She pointed to what she said was the exclusive jurisdiction of her own community. One which had existing rules, traditions and practices for deciding custody, access and other family disputes.
At the moment, the matter has been before the courts more than a half-dozen times. It still has not yet been fully resolved. Its facts raise some complex constitutional issues. These include the question of the essential validity of Ontario and federal legislation over matters touching people of First Nations.
Cases like these trigger a close examination by judges and lawmakers. What is the fundamental role that awareness of, and respect for, cultural and traditional heritage plays in our Canadian Justice system, and in society as a whole?