Section 1: Introduction

The United Nations’ Declaration on the Rights of Indigenous Peoples (UNDRIP) asserts Indigenous peoples’ “right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes” with “due consideration to the customs, traditions, rules and legal systems of the Indigenous peoples concerned and international human rights” (United Nations, 2007, art. 40). Aligning the Canadian justice system with UNDRIP requires a comprehensive understanding of the material and cultural needs of distinct Indigenous groups in Canada (Status and Non-status First Nations, Métis and Inuit) as well as of the processes and programs that can uphold Indigenous laws, heritage, languages and traditions not only within the colonial legal system, but also in the outcomes of legal proceedings.

This report aims to contribute to the understanding of the experiences of Indigenous families (specifically, unmarried or married couples with children) dealing with separation and divorce, who are going through the family justice system (FJS). This includes both identifying needs specific to Indigenous people going through the mainstream FJS and developing a better understanding of Indigenous approaches to resolving family conflicts. This preliminary information will help to identify specific challenges faced by and opportunities available for Indigenous families going through separation and divorce, and those who work with them. The research can inform future efforts to respond more effectively to the needs of Indigenous families and communities, as well as opportunities to welcome more effectively the gifts of Indigenous Knowledge Keepers through subsequent policy development, consultation, and research activities in relation to family law and family justice.

There is a growing body of literature discussing barriers or inequities faced by Indigenous people in the broader justice system, in particular the criminal justice system and the child welfare system, where Indigenous people are greatly over-represented. However, there is less research on the experiences of Indigenous people in the family justice system. Out of over fifty sources from our literature review, only one offered substantive research focusing exclusively on Indigenous people’s experiences in family law (McCallum & Hrymak, 2022). The gap in data is notable when we consider the prevalence of justiciable issues related to family breakdown. In 2021/2022, family law cases accounted for approximately one third of all civil court cases (Ciavaglia-Burns, et al., 2023); and family cases were more active in civil courts than non-family cases (Ciavaglia-Burns, 2021). Moreover, these statistics do not capture the families who do not turn to the FJS—or who abandon initial efforts to work within the FJS—to deal with issues arising out of separation or divorce due to barriers to accessibility. While some families settle matters independently, it is important that a wide range of family justice services—including legal supports as well as alternative dispute resolution services—be available and accessible to all people should they need support in resolving family law matters.

After a brief outline of our methodology, this report discusses various barriers to accessibility and justice that Indigenous families face in the FJS. We begin with barriers that impact all people in Canada, but which disproportionately affect Indigenous populations who face intersecting levels of oppression based on income, gender, education, disability, and Indigenous identity:

Given the geographic distribution of Indigenous people in Canada, and the higher rates of intimate partner violence particularly against Indigenous women (Heidinger, 2022), we offer a deeper discussion on the challenges faced by individuals living in Northern, rural, remote and/or small communities, as well as by survivors of intimate partner violence. Further, we outline some culture-specific considerations and challenges Indigenous families can face when navigating the colonial FJS, including:

Finally, we outline promising models, recommendations and further research directions that can improve experiences and outcomes for Indigenous families dealing with separation and divorce.