Section 2: Approach
2.1 An Intersectional Approach
It is important to acknowledge from the outset that the systemic inequities Indigenous people face within the FJS are rooted in the historical and ongoing impacts of colonialism in Canada. A history of legislation, policies and practices aimed at genocide, dispossession, cultural assimilation, and social, political and economic marginalization have created many significant barriers for Indigenous people accessing services and seeking justice. Indigenous experiences within the FJS must be framed in relation to intersecting structures of oppression and adversity, including racism, poverty, ableism, violence against women, and intergenerational trauma. Any one of these barriers is important; in combination, these barriers have a compounding effect. Therefore, although this report presents its findings based on thematic areas, where possible we aim to bring attention to the unique, intersecting identities and circumstances that can impact Indigenous families’ experiences in the FJS, including ethnicity, gender, socio-economic background, disability, and geographic location. This includes, where possible, identifying the distinct considerations of First Nations, Inuit and Métis Peoples; First Nations people with or without Indian status, and living on and off reserve; and Indigenous people living in different provinces and territories.
2.2 Terminology
In developing this report with care and respect, attention has been paid to terminology. Nevertheless, the authors acknowledge the inherent inadequacy of certain terms to represent the diversity of worldviews within Indigenous contexts and the complex and deeply personal nature of family dynamics. A few points of clarification:
- In our research questions and report, we use the term “family breakdown” to refer to the divorce or separation of a married or unmarried couple who have children together, not just during the point of breakup, but also before, during, and after this point, as their involvement in the FJS might have continued long after they had separated or divorced. The term “breakdown” is in the Divorce Act (R.S.C., 1985, c. 3 (2nd Supp.)); however, we recognize the emotional impact the term “breakdown” may have for individuals with lived experience, and we do not mean to suggest that separation or divorce necessarily entails a negative disintegration of parents’ and/or their children’s sense of being a family or the strength of their individual relationships.
- Throughout the report, family justice system, or FJS, refers to Canada’s colonial justice system, in which the relatively narrow conception of “family” to refer to the immediate, nuclear members (a married or unmarried couple and their children) has long been predominant. As we discuss below, the 2021 amendments to the Divorce Act incorporate considerations for extended family relationships in relation to the best interest of the child (Department of Justice Canada, 2022d). It is important to acknowledge that Indigenous Peoples have their own legal and cultural traditions for addressing family matters, and vast kinship networks and traditional family systems that are not captured within this report, except where otherwise noted. In Section 3.2.2 we address some important implications of different family structures undergoing separation and divorce.
- Indigenous Peoples have distinct constitutional and treaty rights as individuals and groups. For this reason, subsuming Indigenous identities within a multicultural umbrella is a category error. We refer as often as possible to distinct Indigenous identities; however, our use of the term “Indigenous” should not be read as a pan-Indigenous formulation that erases or suppresses distinctive group or individual identities. The Government of Canada follows Section 35 of the Constitution Act, 1982 in recognizing Indigenous peoples (or “Aboriginal peoples”), whether denoting First Nations, Métis Nation governments, or Inuit.
- We note significant scholarly debate regarding UNDRIP’s role in upholding the legitimacy of state sovereignty over Indigenous Peoples (Kuokkanen, 2019). Citing Patrick Macklem’s analysis, Kuokkanen notes that “because of the state-centred character of international law, Indigenous rights are always constructed through and in relation to that framework” yet “not all Indigenous people agree with conciliatory accounts of Indigenous self-determination remaining subordinate to the doctrine of state sovereignty” (2019, p. 32). Others advocate for restructuring existing nation-states in ways that are not necessarily incompatible with the legitimacy of state sovereignty. We are not taking a position here on this debate; rather, we wish to clarify that when we refer to articles within UNDRIP as a foundational document regarding the rights of Indigenous Peoples of Canada, we are aware that there is a scholarly debate about the role of UNDRIP and the United Nations framework.
2.3 Literature review
Our research team conducted a thorough literature review, including primary research, statistical data, academic articles, and public reports related to Indigenous people’s experiences within the FJS and the broader justice system. To support a more nuanced understanding of Indigenous people’s experiences, we also included research related to intersecting populations that experience heightened inequities within the justice system, including women, 2SLGBTQQIA people, people in rural and remote communities, people living with disabilities, and victims of intimate partner violence.
2.4 Interviews
Alongside the literature review, interviews were conducted with four lawyers and three legal advocates/navigators who have firsthand experience working with Indigenous clients in the FJS. Of the four lawyers, one has practiced in Nunavut, and the other three have practiced in Manitoba. Two have worked for legal aid; two have worked in private practice. Two advocates and navigators have practiced in British Columbia, and one has practiced in Nunavut. Interviews encompassed experiences with Indigenous clients living in rural and urban settings, Northern and Southern Canada, and on-reserve and off-reserve.
The interview questions (see Appendix A) focused on gathering information on experiences in the FJS for Indigenous families who have children of the relationship, going through relationship breakdown. The interview questions, and subsequent analysis, aimed to draw out facts and not subjective opinions on the FJS or other topics. The interview questions considered distinctions-based1 and intersectional approaches; a trauma- and violence-informed approach2 was followed during the interviews.
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