SJCA Committee Meeting

SPECIAL JOINT COMMITTEE ON THE CHILD CUSTODY AND ACCESS

COMITÉ MIXTE SPÉCIAL SUR LA GARDE ET LE DROIT DE VISITE DES ENFANTS

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, June 10, 1998

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[English]

The Joint Chair (Senator Landon Pearson (Ontario, Lib.)): Let's get going.

[Translation]

Senator Lucie Pépin (Shawinigan, Lib.): Madam Chair, before we start our afternoon session, I would like to table a document which might help the committee's work. It's a document on custody rights. It's personal. It is in both official languages and could be distributed to all members of the committee. It might help our future work.

[English]

The Joint Chair (Senator Landon Pearson): With pleasure. The clerk can perhaps distribute it to all the members and then make sure that all the other members of the committee receive copies.

• 1530

This is the 37th meeting of the special joint committee of the House of Commons and the Senate on child custody and access. I welcome as our witnesses this afternoon to speak to the specific issues related to aboriginal peoples. From the Metis National Council of Women, Alma Adams, Sheila Genaille and Janice Henry. From the Pauktuutit (Inuit Women's Association), Veronica Dewar, Tracy O'Hearn and Mary Matoo. From the Native Women's Association of Canada, Merilyn Buffalo, who will be joining us.

We have an hour and a half to talk about the issues today and so we would like some statements from you and then there will be questions from members of the committee.

Ms. Sheila Genaille (President, Metis National Council of Women): Good afternoon, ladies and gentlemen. On behalf of the Metis National Council of Women, I thank you all for this opportunity to speak to you this afternoon. I'll begin with a little more expanded introductions.

I am the national president for the Metis National Council of Women. There are two council members with me today, Janice Henry is president of the Metis Women of Saskatchewan. She's from Prince Albert, Saskatchewan and is also, I might add, a single mother who raised her son from six months. He today is 13 years old. Alma Adams is president of the Metis Women's Association of Ontario and is from MacDiarmid.

The Metis National Council of Women was incorporated in 1992 to address issues faced by Metis women and their children. The board of directors and council members are elected presidents from the following regional and territorial associations: Pacific Metis Federation of Women, Alberta Metis Women Association, Metis Women's Association of the Western Northwest Territories, Metis Women of Saskatchewan, Metis Women of Manitoba, and Metis Women's Association of Ontario.

The organization's primary purpose is to address and to respond to issues and concerns of Metis people, particularly Metis women and their children in Canada. Some of our objectives are to maintain and promote respect for the individual rights, freedoms and gender equality of Metis women; to promote the preservation and enhancement of Metis culture; influence policy and be actively involved in policy development in all organizations and at all levels that impact Metis women and their children; achieve full recognition of the Metis National Council of Women and its jurisdictions within the Canadian federal system; maintain the independence and integrity of the Metis National Council of Women within the Canadian confederation and to resist any violation of Metis women's rights.

Who are the Metis people? The Metis are defined in section 35(2) of the Constitution Act, 1982: “In this act aboriginal peoples of Canada includes the Indian, Inuit and Metis peoples of Canada”. The legal recognition of Metis in 1982 confirmed to the rest of Canada what we as Metis people have always known. We the Metis people always perceived ourselves as aboriginal people who were and continue to be distinct from the other two aboriginal groups, the Indian people and Inuit.

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According to Stats Canada, Metis have a disproportionately young population, with 57.7% of the population under 25. In 1990, 26% of Metis women in Canada received social assistance, and we believe the situation has likely worsened since. Unemployment rates for Metis women are two to three times higher than the national average. Metis women who are employed are disproportionately found in occupations characterized by low pay and which are seasonal. The majority of working Metis women are employed in clerical, sales and service occupations. Just like the rest of Canadian women, Metis women constitute over 50% of the population within the Metis nation.

Although Metis women have been active in various aspects of the Metis community, distinct Metis women's organizations have only recently emerged. Metis women have and continue to encounter racial and gender discrimination, and their issues are marginalized.

The Metis National Council of Women is committed to work with governments and their agencies to eliminate gender discrimination and in turn address the issues of poverty, economic development, employment, health care and a safe and sustainable environment. While Canadians in general enjoy a good standard of living, Metis and other aboriginal communities live in conditions relative to some third world economies. Consequences of poverty translate to lack of food, lack of affordable housing, and lack of employment and ability to support one's family. Since Metis women are generally poorer, and with the breakdown of family structures, many Metis women are left to support their families.

The Canadian panel on violence against women report of 1993 included a national action plan which called on governments to fulfill their international commitments with respect to women's equality. The report further states: When women have achieved legal, economic, social, and political equality they will be able to make choices in their lives which truly reflect their interests. They will no longer have to suffer violence out of fear, poverty, shame or powerlessness”.

We believe the incidence of violence against Metis women and their children is extremely high and has an immense bearing on the family break-up. As this consultation process is to review the need for change to the current law respecting custody and access, and to look at alternatives that may or should be pursued, we believe there is a need to address problems of gender bias and domestic violence.

There are arguments that women suffer from having less power in society in general and also within their families. This in turn poses a serious problem in negotiating a resolution as equal partners. This holds true for Metis women and we respectively suggest most aboriginal women. This power imbalance is more critical if there is family violence or abuse in the relationship. We believe it is very important that this power imbalance must be critically examined and have an openness to solutions both in and out of the courtroom.

We have focused our presentation on gender equality because without equality we cannot address the myriad of issues facing us. The Metis National Council of Women has and continues to be excluded from some consultations, programs and funding from some federal government departments.

An example of this exclusion which has a bearing on child custody and access was the consultation process between the federal government and some chosen hand picked national aboriginal groups concerning child care benefits.

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Since over half the Metis population are women and as Metis we are taxpayers, we are disgusted at the actions of some bureaucrats who excluded us from these consultations. The Metis National Council of Women wrote letters, lobbied and advocated on behalf of Metis women for inclusion in this process to no avail. The consultations were completed without any input from the Metis National Council of Women. Metis communities are widespread across the country, from small northern and rural communities to large urban centres. We all understand there are rural and remote communities that do not have services as do the large urban centres. However, courts and administration of justice, we suggest, are frightening to most Metis, which we further suggest is due to lack of education and finances for proper legal representation.

We suggest that most Metis women would not see the courts as an avenue for resolution but rather an imposed solution. Awareness concerning the law and Metis women's rights needs to be addressed as those who have experienced the court process tend to feel their issues are unresolved. Although there are many statistics concerning women in mainstream society, for Metis women there are little. Too often studies and/or research have focused on the term aboriginal by authors who are unaware of what that term means.

We believe you would be hard pressed to find any studies on Metis women and civil law. Metis women, we believe, seldom obtain legal separation agreements or custody or support orders due to their poverty and their lack of knowledge concerning their rights.

The Metis National Council of Women believes it is our right to be on equal footing with the rest of Canadians and that more must be done to address poverty, unemployment, violence, to name a few, and how these issues affect Metis women and their children in a family break-up and child custody and access. As well, Metis women must be part of the development and the implementation of policies that affect them.

In conclusion, we respect the formidable task this committee has concerning child custody and access. However, we ask that you consider the issues Metis women face daily, their geographic locations which are from north of 60 to rural communities and urban Canada. Metis have always considered themselves nation builders and defenders of this federation we call Canada. From the beginning of the Metis nation women have been the glue that holds our communities together and we continue to do that today. I thank you for listening. My colleague will be answering questions.

Ms. Veronica Dewar (President, Pauktuutit (Inuit Women's Association): Thank you. My name is Veronica Dewar, president of Pauktuutit. I have with me Mary Matoo who is from Coral Harbour from Keewatin region in the Northwest Territories. She is also a board member for Pauktuutit. Later on she will be reading some of the materials that I have with my presentation in her own language.

Mrs. Sheila Finestone (Mount Royal, Lib.): Excuse me, are you speaking for the first nation women?

Ms. Veronica Dewar: For the Inuit.

Mrs. Sheila Finestone: Madam Chair, we don't have a brief from the Inuit people, the Inuit women's group.

The Joint Chair (Senator Landon Pearson): No, we didn't receive a brief.

Ms. Veronica Dewar: I begin by thanking the committee for providing us with an opportunity to present the views of the Inuit women on these important issues. We were not able to provide you with a written brief in advance as our human and financial resources are extremely limited.

Pauktuutit is a national association that represents all Inuit women in Canada. Our mandate includes a broad range of social and health issues. We advocate for Inuit women at the community, regional and national levels.

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We have been a leader in breaking the silence on very difficult issues such as family violence and sexual abuse of children. Initially we were severely criticized for bringing such issues into the open, but we are now seeing an increased awareness of these issues and a movement toward positive change.

Pauktuutit has done significant work in the area of administration and justice in Inuit communities generally and on issues relating to violence against women and children, the safety of the women and children within the justice system in particular. We have not had the resources to address issues relating to family law but this has been identified as a priority by our members since our incorporation in 1984. We have been told there are major issues and obstacles being faced by Inuit single parents today, and the vast majority of them are women.

I don't know how much information Nancy Karetak-Lindell has been able to give you, so I will begin by providing you with an overview of our situation in Canada.

Inuit live in 53 remote communities which reach from the western Arctic to northern Quebec and the north coast of Labrador. Our communities are very small, accessible only by air. The largest of our communities is Iqaluit on Baffin Island, with a population of approximately 4,300.

I will not go into a long list of our social and economic difficulties. Many of us live in conditions that have been described as third world. The unemployment rate for Inuit in our communities is chronically very high. With poverty associated with high unemployment comes the highest cost of living in Canada. Two litres of milk costing $2.75 in southern Canada sell for $5.35 in Iqaluit on Baffin Island and much more in the remote communities.

Our youth commit suicide at almost six times the national average and the rates of crime in our communities are significantly higher than in southern Canada. We have a housing crisis in the vast majority of our communities, with many of us living in overcrowded and inadequate housing which severely limits our options in situations of violence or family break-up.

I will let our board member, Mary Matoo, read the other sections here and she will be speaking in our language and you have the interpreter.

Ms. Mary Matoo (Kivalliq Regional Board Member, Pauktuutit (Inuit Women's Association)):

[Editor's Note: Witness speaks in her native language]

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Ms. Veronica Dewar: I will read the rest of the presentation. This is a quote from one of the women who lives in the Northwest Territories:

I lost my children, so these issues of custody and access are ones that are close to my heart. I was a primary caregiver for my sons since they were born, and I was also a primary bread winner. My very first mistake was that I left my sons in the house with him when I left. This is the moment that I will regret for the rest of my life. The courts became reluctant to remove my children from the house because the neighbourhood, their friends, their schools symbolize familiarity and stability.

The second issue which was pervasive throughout the custody battle was child rearing practices. He was considered to impose discipline and structure, and there was disapproval about how I slept with my sons, how I let them do anything that they wanted. I was forced to find literature written by Inuit and non-Inuit which explained that the Inuit way of raising children was patient, loving, teaching responsibility and talking to them. Raising my children in an Inuit way in the south was never a reason why I should have lost my children.

As well, the financial stress of seven years of legal battles was more than I could bear. I had two houses and savings from many years of working, but eventually all went to support my fight to get custody of my children.

• 1600

Finances are the number one issue in custody battles. As an Inuk, I was always taught to share and take care of others. My ex-husband was lucky that I had that attitude because even though he asked for $4,000 a month in child support and the court agreed to $1,600 a month based on child support guidelines, I gave him $2,000 a month. When my older son turned 12, he left his father's house and he came to live with me. He has lived with me ever since. He's now 14 and he does not have any contact whatsoever with his father.

This story illustrates the cultural divide that separates Inuit from Kablunap, white men. As people, whether or Inuit or Kablunap, we share many basic human values and characteristics, but our differences are great. This does not mean that one way is valid and the other not, nor that one way is superior to another. They are simply different. But too often our traditional ways are used against us in foreign systems and institutions such as courts. Our child rearing methods may seem far too lenient to many non-Inuit, but we merely teach our children in different ways.

The personal experience just described is not the norm for Inuit women. Not as many of us can afford to engage in lengthy court cases. If an Inuk woman was informed enough about her rights to child support and how to access the court system, she would generally have to rely on legal aid because of high rates of unemployment in our communities.

Legal aid in the north is overwhelmed with criminal cases and she would face a long wait for legal assistance, which could take years. This is not uncommon, however, for our culture to be used against us and for that systematic racism to be reinforced by courts. Inuit women are at a disadvantage when their children's fathers are Kablunap in that the non-Inuit men are far more knowledgeable about the court system and how to use it to their advantage and often more comfortable in an adversarial system such as courts. Non-Inuit men usually have more financial resources and are better able to sustain a court case.

I will let Mary read the rest when she is finished.

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Ms. Mary Matoo:

[Editor's Note: Witness speaks in her native language]

Ms. Veronica Dewar: Thank you, Mary. This the same colonial assimilation attitude that was imposed on Inuit from our earliest contact with non-natives.

Our children have the right to know both their cultural backgrounds, and this should be supported and reinforced by the courts. Our limited work in this area has so far raised more questions than answers and we feel it is important that answers be found. For example, what is Inuit women's access to legal aid and the legal system in relation to child custody and access both in the north and north-south? How often do Inuit women use the courts in family matters? If, as it seems, Inuit women generally are not using the courts, why not and how could the situation be improved? What traditional knowledge could be applied in contemporary society to assist with family law matters? If and when court orders are made for child support, are the amounts adequate given the extreme costs of living in the north?

If orders are in arrears, what enforcement measures are used? Are they effective? What are grandparent rights under civil law? How can grandparents ensure access to their grandchildren and obtain custody if necessary? How do the very high rates of chronic unemployment and related poverty affect children in the context of child custody and access? How should this be taken into account by the courts? How many Inuit women have children with fathers who have returned to their lives in the south and effectively abandoned their children? Are these women aware of their right to child support? What information and supports are required for them to access legal remedies in the south? What impact does the housing crisis in our communities have on our children and families in this context?

If this committee will be making recommendations for changes to child custody and access matters, please remember that any changes you recommend will also affect Inuit women and their children, but solutions for the south are not readily applicable or appropriate to either the north or to Inuit cultural practices.

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Inuit have made tremendous progress over the last 50 years in adapting to new and different systems and institutions but the key to achieving meaningful change is to develop Inuit solutions to contemporary issues and problems.

Pauktuutit is an active partner with many government departments on many issues of concern to Inuit. In order for effective solutions to be found we must be an active partner and we are here to assist you in this regard. Thank you.

The Joint Chair (Senator Landon Pearson): Thank you very much indeed.

Ms. Marilyn Buffalo (President, Native Women's Association of Canada): I'll try to make this as brief as possible. I represent the Native Women's Association of Canada. The organization I represent was founded on traditional laws, the laws of the grandmothers' sacred lodge. That is too much to go into in such a short timeframe but I wanted to bring that to your attention, that our organization has been founded to look out for the interests of the woman and the child. It is the belief of the grandmothers and the women I represent that if the rights of the women are protected, the chances of survival for both the woman and the child is better.

In our communities, which are not the same as other communities in Canada, many of our young people represent 78% of the population, which is in total I think different from your societies in the rest of Canada. From a community of 5,000 people where I come from, 78% are 25 years and under. It's kind of like the tail wagging the dog because the voice of the children is not being heard in our society.

The reason I say that is the services there now are going to be totally inadequate and already are in many of our communities. We don't even have schools in many of the first nations, Metis and Inuit communities. For that Canada should be ashamed of itself. Look at Ottawa and how many schools are being shut down because of surplus. I wish that were the same case scenario in our communities.

How does this serve the argument and the issue we are discussing today? I've always seen in the work we have done that education is the answer to all. If a child should get an education or if a woman should be educated, the chances of getting employment are much greater.

The rights of the child are what I wish to focus on at this moment. Traditionally all aboriginal societies, no matter if you call them Metis, first nations or Inuit, are matrilineal, based on the grandmother laws, the matri. Foreign legislation, including the Indian Act and others, has perpetuated the patrilineal system which is totally alien. When those systems collide, whether they be legal, social, legislative or otherwise, you're going to have problems. This is what we have in Canada today.

Compound that with generations of residential school systems where for many generations both genders were institutionalized away from home without any opportunities to interact with members of the opposite sex in a very healthy fashion.

I can attest to this, ladies and gentlemen. Believe me, it did exist. We had 70 residential schools in this country. Some people say 80. The Globe and Mail says 80. They were present in all communities, Inuit, first nations. In many of those schools, Metis people attended as well, and the numbers are staggering.

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So you have these problems over generations. Is it any wonder we have the highest population of aboriginal people in prisons in Canada? Is it any wonder why that Canada has, of all the female population in maximum security, 50% aboriginal? Is it also any wonder why, if you take my community, the statistics say that of 100 young offenders, 75 of them are girls? Why do you think we work 12, 14, 16 hours a day, with very little funding from the Canadian government to bring these issues to the forefront?

Traditionally the rights of the child must be protected, and we're not here to argue as to who is the better parent, the male or the female. I will say that throughout all these generations, both genders have suffered. In order to protect and ensure justice for native children, you must protect the rights of aboriginal women, no matter where they should reside.

On reserve, thank you to the Indian Act, most homes, matrimonial homes, are registered under the name of the gentleman, the father. If a family violence situation should ensue, generally it's the mother who leaves with the children. With the lack of shelters and services in the communities, no matter where, if it's north of 60 in the Inuit communities and the Metis settlements or if it's in a first nations community, we do not have women's shelters. We do not have any transitional homes. We do not have legal clinics. We don't have anyone who can translate law in our language to our women.

So what happens in that situation? Our women are leaving in record numbers. They're looking and searching for a better life away from these situations. Statistics show that more and more of our women are seeking shelter in urban centres and taking their children along, which is why I think if you look at the statistics, the majority in post-secondary educational institutions, aboriginals, are women. That speaks for itself but that also doesn't mean that is success. That also means that there are many other women out there who have not attained the credentials in order to enter university.

Consequently our children are not getting cultural support. If the mother has to leave the family matrimonial home, most of the time they must go into urban centres where none of these services are available. Certainly you're not interacting in the same linguistic format you're used to interacting in on a daily basis. Your children are not going to get the bicultural education they might in their own community. There are fewer social services and your chances of speaking with a social worker who doesn't understand your plight are very great.

The second generation cut-off, the Bill C-31 legislation that was enacted in 1985, has created a whole slew of problems. That has to be addressed very soon. By that I mean there's a second generation cut-off where the rights of a child are not protected.

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For instance, I was reinstated as a result of Bill C-31 to Indian status. My children are also, but not my grandchildren. So what rights will my grandchildren have in the very near future when they cannot go to their traditional governments, Indian governments or Metis governments, as it may be? They don't really belong anywhere. They're not really accepted and they don't have the same services of education and health benefits as other treaty and non-status Indians or status Indians. What happens in this situation? Let me tell you, we have to begin talking about it.

We had a preliminary conference this spring. I'm suggesting to Jane Stewart, the Minister of Indian Affairs and Northern Development, that we have to follow that up very soon in the fall. I don't mind using her name in these podiums because I understand she uses my name quite freely in other committee presentations. So tit for tat.

With regard to the matrimonial property issue, native women, Indian women on reserve, have no rights to protection the same as other women have in Canada because matrimonial laws or property laws do not protect on reserve. That is another big issue we will have to discuss in the fall.

In the situations of separation the child quite often has no voice, as I had said earlier, and therefore is cut off from any relationship from their father because of the distance, because of the animosity and the pain and the lack of counselling available. We do not have enough money as women to hire expensive family lawyers as other women do. Also, you are not only separated from your mother and father, you are separated from your grandmother and your grandfather and you are separated from the home, as was stated earlier. Not only that, but there is the very grave danger of losing your language that everyone just takes for granted. You at that time are put in a situation where you can lose your traditional language because you're not surrounded by people who communicate in that language on a daily basis.

We need more resources to address the poverty and the family pressures that women and children face when they are in a separated situation.

We need to fix the housing problems in our communities, be they on reserve or off reserve. We are in situations where we don't have matrimonial homes, let alone transitional housing. There is such a shortage of housing and many times that's what creates the problems, the lack of a private home.

We need to access elders and spiritual guidance for both parents and the family in these situations. Laws must be put in place to protect women and children so they can stay in the home, in the community, if they choose to do so.

But I'm not going to reinvent the wheel here, because we have the royal commission and there are 440 recommendations. I rely on these recommendations in my work on a daily basis. I suggest you go back and review the RCAP because it's very current. We spent a lot of money, $85 million, doing research already in committee hearings like this. It's time to go to work now.

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Also, I wanted to put a recommendation in here that women on and off reserve in Metis settlements be given priority when funding for educational programs is being delivered because, as I said earlier, if women are successful, their children will be successful.

Thank you very much.

The Joint Chair (Senator Landon Pearson): Thank you very much. We'll now turn to questions.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): I'm very pleased that you were able to come here today.

Perhaps you could give me a bit of a description of the matriarchal history or operation of family versus the patriarchal. That was introduced by you. Can you relate that to parenting and the problems around divorce and family disputes when a family dissolves and there is a dispute?

You suggested that a community alternative solution is preferred, but if that is not happening and you're into the court system, how is the matriarchal versus the patriarchal tradition effective on that?

You introduced the subject and said that is a problem, so can you expand on that, especially when it comes to the court system?

Ms. Marilyn Buffalo: I don't think this is a problem isolated to the courts. I think it's a problem throughout the system generally, particularly the legislation as it's being applied.

We were never consulted when these matrimonial laws and legislation were put into place, or the Indian Act. It was all based on British common law. Matrilineal means that status and rights were passed on through the mother's side because if your mother was from the Raven clan, you would be a Raven clan member.

What happened when these legislations came into being, the Indian Act in particular, is the laws were put into place, the legislation, so that you had no choice, you followed your father's community. You did not follow the Raven community. So as a result it was a very disruptive change.

Mr. Paul Forseth: The Divorce Act is supposedly gender neutral. The paramountcy for the thrust of decision is supposed to be the best interests of the child, regardless of mother or father. It's supposed to look at, if you're going to have to choose between one or the other, which parent is going to have day to day care and control, which parent is able to best provide. Often that looks at historically who has been doing the providing. So I'm trying to ask how that operates when we're considering the best interests of the child.

Ms. Marilyn Buffalo: In the case of matrilineal, the traditional role for women was to teach and to heal. The traditional role of men was to provide and protect. When that gets thrown off balance, that's where the problems begin. In the case of family law, many times the rights of the father are not protected either because the courts are not familiar with the law or they're not familiar with the traditional rights or the culture of the family from which they come. They don't protect anyone. The courts are not there to protect the mother, the father or the child.

Mr. Paul Forseth: I'll just try this one supplemental. Considering specifically the Divorce Act than local regional statutes that would be equivalent to provincial jurisdiction such as in British Columbia the family relations act or Yukon family legislation and so on, are there some direct conflicts with the Indian Act and those who have status on a reserve? Is the Divorce Act really relevant?

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Ms. Marilyn Buffalo: I didn't bring my lawyer to answer that and I think we'll leave that one up to the drafters, but I do know that the Divorce Act can be relevant, providing that our first nations leaders, chiefs and councils were part of the discussion and they're not. We're not even part of the program.

The reason I'm saying this is if you look at the Canadian inherent right policy, there are very few rights that our leadership has access to in Canada. One of them happens to be this area here regarding family law, marriage, matrimony and divorce.

We don't have any say in it, so how are we able then to provide some leadership in that area?

Mrs. Sheila Finestone: I'm going to ask you directly and if you have a difference in point of view or if it is different within your culture, please add your cultural dimension.

I know it's not a tendency to put all the groups under one chapeau because I think that the women's organizations certainly have gone beyond that level of ignorance. We are well familiar with the differences in cultural pattern, lifestyle and living, but we also are familiar with a lot of the commonalties.

I think within the field of law there are some serious problems but they are not different within the groups. It may be different within the structure and I think that's what I heard you say.

The Metis women are saying they don't have enough of a formal recognition. You know that you have formal recognition within the aboriginal group, the Indian bands, but you don't have...I think I'd better let you put that.

How would you describe the difference between your native women's association, the Metis women and the Inuit women in terms of the needs?

This group on our committee has two focuses, custody and access in family breakdown. I live in a large metropolitan city. How those judgments affect me may be totally different from you, but I can tell you that we've heard that judges are insensitive, judges don't understand all the time that relationships between men and women depend on whether they determined how to go about the divorce themselves and they just had to table the decision and things were worked out in the best interests of the children even though the two adults didn't get along. Where there was family violence or where there was child abuse, it was a different story.

Often the judges make decisions which may be considered wise or unwise, but nobody carries out the decision. There is a lack of application of the decision by the police or the child custody people, child aid services. These are things we're hearing, that the role of the child within the best interests of the child is different depending on the age of the child and the stage of the child.

Often we're not taking into consideration the extended family, either the husband's family or the wife's family or the grandparents, who are very significant in your culture. In my culture, the grandparents are a very important aspect of learning but maybe not in the same way that you have them. But they should be considered in the course of the law, not that they have to apply for the right, but it should be an automatic consideration that their concerns are taken into account. This is sort of like a snapshot of what we have heard.

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Most of the witnesses, I would suggest, came from urban and perhaps semi-rural areas, but not really rural and certainly not the isolated communities you have described in the north, which are small communities, Iqaluit being the largest. If you get up to Grise Fiord and the other areas, they must be much smaller.

Metis recognition came very late, in 1982, so you are at the beginning of the growing pains of recognition and action with respect to the rights of women, the status of women and all the common issues that women face where they are the majority but are treated as the minority in all aspects of general life.

Can you give me some idea of what would be the different needs of aboriginal people with respect to the law? Is it different judges? Is it a different decision making process? Is it a different resolution mechanism? What should we be looking for? What should our recommendations say with respect to separation, decisions about custody and decisions about access?

Ms. Marilyn Buffalo: One of the speakers indicated that the courts should be the last resort. It is the justice system again. We are advocating sentencing circles for our people. I would say that the same would apply in the case of family law. Some sanity has to be brought into it and the only place you will find sanity is in spirituality. The elders should take the lead. If you call the elders first, you will not have problems. The grandmother should also have a say in that circle.

Mrs. Sheila Finestone: It is not done automatically?

Ms. Marilyn Buffalo: No.

Mrs. Sheila Finestone: Grandmothers don't have a say automatically?

Ms. Marilyn Buffalo: They may not be in the same geographic area, for instance. So every effort should be made for them to be consulted and for them to have a say.

For instance, in my situation, I have custody of my 10 year old grandson. He lives with me here in Ottawa.

Mrs. Sheila Finestone: Your 10 year old grandson.

Ms. Marilyn Buffalo: My 10 year old grandson. And that is customary in our family.

Mrs. Sheila Finestone: Madam Chair, I would like to know if it is possible, as we have no idea of the level of broken families or divorced or separated families, if each group could give us some figures, if they have them, and I would understand if they don't, because we don't have that in our research material.

What is the level? We say that in Quebec three out of every four families is divorced. Common law is quite normal. In the rest of Canada it isn't that great in some parts. What is it in the rest of Canada?

The Joint Chair (Senator Landon Pearson): All right. Thank you.

Ms. Genaille.

Ms. Sheila Genaille: Thank you, Madam Chair. I want to clear up some things that were said. I am a seventh generation Metis. We are not a matriarchal society or a patriarchal society.

I have Indian grandmothers who have been dead for 300 years. I have French grandfathers who have been dead that long. My culture, Metis, is distinct. It is a melting pot of the two.

I think people assume in mainstream Canada that aboriginal people, because we share the same bloodlines in a sense and the same colour of skin, are all the same. People tend to forget that the very first thing is that we are all human. We are all human beings, first and foremost.

Culture is learned. My Metis culture was learned. Culture is learned from your parents, so don't assume because I have a Cree grandmother who died 300 years ago that I subscribe to the Cree culture, the Cree rituals and the Cree spirituality. I don't. I am a Metis woman. It is the same with the majority of the Metis women who I represent.

I want to correct Marilyn on her statement about the Metis government.

• 1640

There is no Metis government in this country. None whatsoever. With the death of the Charlottetown accord, so too died the Metis nation accord in which we were trying to come under section 91(24) of the Constitution Act of Canada. That died. There is no Metis government is this country.

There are Metis organizations who purport to speak for all the Metis people in this country. They don't. The Metis people have not had a chance to say what type of government they want. Do they want what exists today, whether it is a provincial government, a tribal government or a federal government? We haven't had that opportunity. There is no Metis government in this country.

I am sure Sheila knows this, but some of the others may not know. The reason the Native Women's Association of Canada is recognized is because they took the previous government to court in 1992, the Mulroney administration, and said “Wake up. Women have rights in this country, whether they are Indian or otherwise”. That may be what the the Metis National Council of Women will have to say to this government: “Wake up and listen. We have the same rights”. You may look at us and think we are second-class aboriginal people, but we are not. If that is what it takes, we are prepared to do that.

Mrs. Sheila Finestone: Excuse me, Sheila. My question was, is there anything that is different in the Canadian law right now that should apply to that moment when you become, or when you are recognized as a Metis nation? That is what I want to know. Because we have to give a report which says what we think you have told us is what is in your best interests.

Ms. Sheila Genaille: Perhaps one of my colleagues might have something to say on that, but I do not have the benefit of a law degree. The fact is, we do not have self-government. We don't have treaties like the Indians do that live on reserve. We don't have Nunavut that the Inuit people are working toward. We are still trying to negotiate self-government. We are trying to negotiate to become part of the federal process.

I don't know, Sheila. You would have to tell me how you would build that into the law to make people recognize it.

As for stats on the Metis people, the royal commission has the most comprehensive data in that area. As I said in my presentation, we get encompassed into the all-inclusive term aboriginal. If I walk down the street in the west, they assume I am an Indian because I have brown skin and I say I am aboriginal. They don't know that Metis people are part of the aboriginal family of this country.

As far as stats on Metis women who have divorced, who have custody of their children, I know there are many grandparents who have fought to get custody of their grandchildren because the mother may be on the street, homeless and abusing substances. The grandmother has a fight on her hands to try to get those children. There are very few specific Metis stats. Very few.

The Joint Chair (Senator Landon Pearson): Thank you.

Ms. Dewar, would you care to make some comments, please?

Ms. Veronica Dewar: Thank you. With respect to the specific question that you are asking, among the Inuit people, especially in our region, there are not that many divorces, unless they are married to a non-Inuit. I will say that in truth. Custody battles are much more visible in mixed marriages, more so than in our own culture.

I really cannot give you a specific answer because a study has not been done in our culture on this subject. It is hard for me to give you an answer because family law has not really been dealt with within our culture. But we are pressing forward.

When we were doing this study, in a brief time we heard some horrendous stories about women who lived down south and who returned to the north because the courts were insensitive to their cases.

• 1645

This is what I can tell you. The courts need to be more culturally sensitive to Inuit women. I am sure that applies to the men as well because I don't see many Inuit men getting divorced. It is not the practice of the Inuit people. The Inuit have kept their tradition. They have held onto it. That is what I can tell you.

The Joint Chair (Senator Landon Pearson): Thank you.

Dr. Bennett.

Ms. Carolyn Bennett (St. Paul's, Lib.): Thank you very much.

There are a couple of themes, regardless of which group we hear from. One of them is that keeping the lawyers and the judges out of the process as much as possible seems to be a good thing.

Within your culture, do you feel there is a way that you could organize yourselves such that you would need judges and lawyers as little as possible? I guess I am wondering, with the healing circle idea or the sentencing circle approach, when it is awarding custody or making a decision as to what would be best for the child, particularly if the decision would mean a huge geographical change, if you could help us with a solution. When we were out west we heard something along the lines of a circle that would include maybe the teachers and as many people as knew the child to help come up with the best decision.

Would each group feel that would be possible in your culture, in that it may be only 10% or so that need this help? How can we make sure that we don't impose something that is irrelevant? Do you think that we, in revising the Divorce Act, should be making a special provision for the cultural reality?

Ms. Marilyn Buffalo: I would have to say that you could not stress that enough. Quite often what happens is that a family court judge goes around in a big circuit and has no knowledge of the family background and no knowledge of the culture.

Many times when mothers come forward along with the fathers they don't understand. There is no interpretation of the services that are available. Something as basic as that can determine how they will react and answer questions when they are being asked by an English or a foreign-speaking person.

Yes, I would advocate that, in as non-adversarial a way as possible, to come to some resolution on these issues, and as much as possible to empower both parents so that they have a say also in what happens to their child.

This not only applies in the case of divorce because we also have separation under common law as well. That also has to be considered. Many of the women did not choose to marry. In that case, then, what laws apply?

There is also the scenario where you have generations of problems.

I am going to talk about the issue of child custody when there are no parents or when it is a one-parent family.

• 1650

In many scenarios in the provinces across Canada, native women are losing custody or men losing custody of their children. It's not limited to the whole issue of divorce. It's because of the multi-generational effect of not having any power or say at all.

Many times provincial social services come in and do an evaluation. I'm the oldest of 12 children and my mother did an excellent job of raising us. If a social worker had walked in and looked at our home situation, 512 square feet and a tent outside, we might have been apprehended 20, 25, 30 years ago too.

Just because you are poor doesn't mean you are poor mother or a poor parent. People should not be found guilty because they have no food in the fridge and they should not lose their children based on the premise that they're poor mothers because there's only one box of Kraft Dinner in the cupboard.

Those guidelines developed for middle class white women do not apply to poverty stricken aboriginal women. In many cases the social worker is non-aboriginal, comes into the home in the city of Edmonton, apprehends the children. If the mother is having difficulty with addictions or depression of any kind, and who wouldn't be in that situation, they're given sometimes one year or two years before they can actually turn their life around.

If you have no marketable skills and you only have a grade seven education, and you're on mother's allowance social assistance and there's no training and education program, how is anybody on the face of this earth supposed to turn their life around in one or two years?

Meanwhile, within that timeframe the children are put up for permanent custody and there's not a chance that woman will be able to recapture her children. They're gone.

Ms. Carolyn Bennett: I would love to know the relevance across the table. In urban cities, do you feel there is an organizational capacity to actually design the healing or custody circle or whatever within that organization with, say, chosen elders? How would that work in an urban off reserve situation?

Ms. Marilyn Buffalo: I believe that it has to be a recognized quasi-judicial system where the rights of the child and the woman will be protected. It should not be shunned off to a social services agency, so that all points will be considered, justice will be served. It should be done arm's length from the justice system but have an appeal mechanism there so that if one is not satisfied, one could always go back and make an appeal.

Ms. Veronica Dewar: With the little time we have this afternoon with you it's not really adequate for us to give you the full effective solutions to your questions. But I'd like to reinforce again that we need to do more studies in the Inuit regions because this has not been really done in a research form.

• 1655

Like I said earlier, we need to develop solutions that will be effective to the north, to the people of the north, not the urban cities. The solutions made in the south are not effective toward us.

I was discussing this issue with Mary Matoo, who is from a very small community. The court circuits come maybe once a year. That's not enough to find solutions for the problems arising quickly in our communities.

Ms. Carolyn Bennett: Do you think that within your community with the remoteness and the isolation there could be something customised for that community that would deal with the issues of safety and violence and putting kids first?

Ms. Veronica Dewar: This is what we are looking for and the people in our communities don't understand your ways like I do. I was a court circuit interpreter for many years and I have seen such a vast urgency in getting our people involved in these kinds of foreign institutions that you enforce on us. I cannot stress enough that it's urgent because everything is coming so fast to us, we cannot keep up with the work, the translations of your laws. It takes time and, like she said, we're not lawyers and we need time to reinforce them into our communities in our languages. This has to be done more in a research form.

Ms. Janice Henry (President, Métis Women of Saskatchewan, Métis National Council of Women): Further to all this, I'd like to give you a little input in terms of Metis women's representative from my province and then expand more in terms of the national perspective.

It is a reality that there are no quick, fast answers. This is a basic consultation. I would think from my perspective that it's a preliminary discussion. I think there has to be more discussion with respect to this area.

To give you information in terms of where I'm coming from, I have worked long term in the family service area for approximately 12 years now. I've worked with areas from NGOs to social service departments both in a specialized unit out of Alberta as well as in Saskatchewan. What I feel, and we've discussed it as a council, is that there is a blatant lack currently of effective support services provided to our Metis people.

Also, with respect to courts and lawyers and dealing with those areas, there is a lack of education with respect to our people in terms of them accessing and how to go about in those types of areas. We have to start looking at educating the people and ensuring that they're aware of the existing resources, and further ensuring that Metis women, from where we sit, play a very proactive role in the implementation and development of support services to Metis people.

Currently there is no doubt we do have services out there but in terms of the effectiveness of those services, I see there are some real weaknesses out there.

My parents had a special care home for 30 years. We had individuals there from throughout the north. I have always believed, and I believe it is the position of the Métis National Council of Women, that first and foremost we utilize existing family resources prior to going out to other resources. We have a vast pool of resources and support within our own communities and I think we have to start working from that base and working as a community.

• 1700

I believe it's very important that the Metis women and the Metis community work in co-operation with the federal government to ensure that resources are implemented to ensure they are effective to our children and to our families.

Senator Anne C. Cools (Toronto-Centre, Lib.): I thank the witnesses for coming before us. Your testimony is very evocative and drives home to me the enormous needs that exist in your communities. I think it's good to put us all in touch with our humanity. It's nice to see Senator Watt at this meeting today. Senator Watt is my seat buddy. He sits next to me in the Senate chamber. He's a strong advocate on many of these issues.

My question flows from some of the testimony around the issues of the Charlottetown accord, the Meech Lake accord. As you remember, throughout that entire discussion the term distinct society emerged, which many of us had some quarrels with. I think around those years, 1987 through to 1992, with the accord there was a body of thought developing at the time that aboriginal peoples were a distinct society as well.

There are many communities, I recognize, but these communities have needs, as you say, for greater sensitivity to the cultural needs of the community. Do you know or are you aware of any efforts in your communities around the development of a body of ideas, a body of concepts, a body of principles that could eventually result in a body of family law for aboriginal peoples?

I'm very struck at all times that we mention these needs and, as you say again and again, the need for culturally sensitive public policy, culturally sensitive systems. I'm just wondering if anybody has wrapped their minds around that, moving toward the development of a body of ideas that could become a body of family law and that could eventually branch out to aboriginal family courts or something. I'm just wondering if anybody has wrapped their minds around that or are you in touch with people who have.

Ms. Veronica Dewar: Yes, I could say we have touched on it, the very tip of it. It's slow. We would like it to be faster, but we're just scratching the top of the so-called peak. Some of our Inuit leaders, the strong advocates of the government in our regions, have pressed the territorial government to start including our elders, our leaders in the communities to do their own courts. It has just begun, it's not very much yet.

I'm proud to say we have been working in our communities with justices of the peace, being the Inuit. Some of the leaders who are knowledgeable in law so to speak have begun a bit of work on this. It's tough. You government people are tough and you don't listen very quickly to our needs.

• 1705

I don't know if you've ever been to the remote communities. I think if you ever come up north you will be shocked to see some of the situations that are placed on our people. You will be shocked to see what goes on. We're telling you very little about it. Inuit are very caring people, very accessible, vulnerable and they have taken the western society culture without really thinking about it. I think we were sort of being naive because our culture is so giving and taking that we have maybe in some part to take the blame ourselves.

Today we stand up and say enough is enough and we need to take partnership in implementing these polices, laws and acts.

Senator Anne Cools: Marilyn, as the dialogue on self-government and native self-government continues I was very struck by your remarks that you were one of many children and that workers would have misjudged your situation or your own family situation.

I was just wondering if you had wrapped your own mind around the whole phenomenon as people are taught more and more about self-government that self-government usually involves some body of legal framework and some body of law.

Ms. Marilyn Buffalo: There are projects or programs in varying degrees across Canada that we could probably show examples of, but that would take some time and if you wish to we would be happy to provide that.

There are also some in the United States where family law is in co-operation with the customs. The values and the practices of the people in that locale have been incorporated and recognized. That's what I mean about the quasi-judicial process. How that would be recognized and how provincial laws will be applied, or in the case of the northern territorial laws, how they will be recognized is another story.

I think with the high number of youths have and the number of our youths having children, I think these issues are very critical, that they must be addressed and I totally concur with Veronica when she says that the government is not listening. It is very frustrating. I'm getting grey on the job, the same as you, senator. I don't see a lot of improvements and it's frustrating for me and for my mother who is a very young grandmother.

The society is changing. Our young people are not listening as well as they should be because they have lost traditions and customs as well. The sooner we can move on this agenda, the better. The native women of Canada have similar concerns with the other Metis first nations associations like the AFN, but broader generally we have similar issues. NWAC has always placed family and children's rights and women's rights issues on a higher plateau.

Senator Anne Cools: To Ms. Buffalo and to the Inuit people, a couple of years ago I was sick for a few days and my colleagues over here, Senator Watt and the native and Inuit colleagues in the Senate sent me a card. They said they were my soul brothers because I feel enormous sensitivity for the non-white peoples of this country.

• 1710

Ms. Sheila Genaille: I'll briefly answer Senator Cools' question about the body concept, or the concept for family law for aboriginal peoples. We haven't really looked at that comprehensively from the Metis National Council of Women's point of view, but it's something certainly worth looking into.

I agree with my colleagues, Veronica and Marilyn, with what they have said. We concur with that as well.

Janice just wants to give a brief description of something in Saskatchewan that perhaps would answer part of the senator's question.

Ms. Janice Henry: Just as a follow-up to this question, we were discussing it just prior to our having an opportuntiy to speak and basically what exists in Saskatchewan in terms of Metis people is that the Metis nation of Saskatchewan does have Metis justice and community services and is attempting to respond to the needs of Metis people through that vehicle.

Presently their participation is very minimal due to a lack of financial resources. They are looking at repatriation now, and other areas, preventive measures. They are taking steps and measures to address this issue.

The Joint Chair (Senator Landon Pearson): Is it possible to get some information on that?

Ms. Janice Henry: I can certainly forward information.

Senator Lucie Pépin: Madam Buffalo, I worked very closely with Madam Finestone, with Mary Two-Axe Early, in the seventies and eighties to have the legislation changed for native women. I'm a little sad to hear that you're having more problems with it.

Also, regarding the Metis women, we have a Metis senator, Madam Chalifoux. She's very proactive with us at the Senate trying to sensitize us to what you're really going through.

You spoke about the commission, the Dussault commission. Pardon me my ignorance, but was it a very specific recommendation toward native or Inuit people regarding divorce, family law?

Ms. Marilyn Buffalo: I can't quote any from memory.

Senator Lucie Pépin: I'll go back and do my homework.

Ms. Marilyn Buffalo: They recommend the executive summary and the 440 recommendations. It's not a quick read.

Senator Lucie Pépin: No, I know that.

Also, Madam Matoo, you told us that the women who go to court are not welcome, and more than that you say that the court victimizes women. You also said the second spouse or the new spouse of your ex-husband would like to adopt your children. When you say that the court victimized you it means that you don't have any rights, and also previously you said that very often you don't go to court because you prefer to settle your problems yourself. I would like you to give us a little more of what you mean when you say the court victimized you.

How can that person adopt your children if you're still there? Does the law the way it is in your community give her the right to adopt your child?

Ms. Mary Matoo:

[Editor's Note: Witness speaks in her native language]

• 1715

Senator Lucie Pépin: Do you have many women elders?

Ms Mary Matoo:

[Editor's Note: Witness speaks in her native language]

The Joint Chair (Senator Landon Pearson): Thank you.

Senator Watt, last question.

Senator Charlie Watt (Inkerman, Lib.): Thank you very much, Chairperson.

• 1720

First of all, I would like to thank Sheila Finestone for asking me to sit here since I am a parliamentarian.

I guess this is an area in which you could use an example, not having a full knowledge of the procedures and laws as they are applied to the general public of Canada.

I would like to take this opportunity to take advantage of the Inuktitut translators. Would that be acceptable?

The Joint Chair (Senator Landon Pearson): Yes.

Senator Charlie Watt:

[Editor's Note: Senator Watt speaks in his native language]

Ms. Veronica Dewar:

[Editor's Note: Witness speaks in her native language]

The Joint Chair (Senator Landon Pearson): Thank you very much indeed.

Senator Watt, would you like to ask one more question?

Senator Charlie Watt: I am just leading up to my point here.

[Editor's Note: Senator Watt speaks in his native language]

Ms. Veronica Dewar:

[Editor's Note: Witness speaks in her native language]

• 1725

Senator Charlie Watt:

[Editor's Note: Senator Watt speaks in his native language]

We have a common problem. Our solutions might not be exactly the same, but any solution would apply to the Inuit, the Metis and the Indians. That is one of the reasons for which section 35 describes the Indians, the Inuit and the Metis, because they have to be accommodated.

I would also like to say that one of the reasons I came here is because I have to deal with this issue. As chairman of the aboriginal standing committee I have undertaken to examine what is the best way to implement governance, which is part of the royal commission report.

Hopefully, tomorrow, the Senate as a whole will approve the budget. I was at the Board of Internal Economy the other day. I am slowly making progress. It is slow, but the issues that you people are bringing to the attention of the committee we will look at and continue to develop further. Hopefully we will all develop a working relationship with aboriginal groups and organizations.

The Joint Chair (Senator Landon Pearson): Thank you very much, Senator Watt.

Thank you very much, all of you. We are really over time—

• 1730

Ms. Sheila Genaille: I just want to remind Senator Watt, as he is chairman of the aboriginal standing committee, to remember that aboriginal women have voices. We can speak for ourselves. There is no Metis government in this country. Everyone has a voice. Just keep that in mind.

Senator Charlie Watt: I fully understand that.

I also want to say that I was told by Sheila Finestone—and I think it is because of the stand I took on Bill C-31—that I am more sensitive now to women's issues. That is not the case. I have always been sensitive to women's issues. I was brought up by women. My mother is my mother and my father at the same time. I don't think I can be any more sensitive than that. Thank you very much.

The Joint Chair (Senator Landon Pearson): Thank you very much.

Thank you very much, all of you. It has been an extraordinarily interesting session.

Could I please ask the next groups, the Assembly of First Nations and the Metis National Council, to come to the table?

Thank you very much, gentlemen, for waiting. We have a lot to talk about and I am conscious, Mr. York, that you have a flight to catch and you will have to leave soon.

Representing the Assembly of First Nations are Mr. Art Dedam, the Director of Social Development, Chief Victor York and Mr. Wendall Nicholas. Representing the Metis National Council are Mr. Lance Larose and Sonia Prevost-Derbecker.

Chief Victor York (Lower Nicola Band, Assembly of First Nations): First of all, I would like to thank you for allowing us to appear before you to present this brief.

Honourable co-chairs, senators, members of parliament and guests, I would like to extend our best wishes from our grand chief, Phil Fontaine, who could not be here today. I will represent him in this briefing.

I also have two of the technical team here with me, Art and Wendall.

I am Chief Victor York from the Lower Nicola Band of the Nlaka'pamux nations. I am here today to offer testimony on the matters of child custody and access.

As the representative of a distinct community, the Assembly of First Nations has a responsibility to speak in defence of its constituencies.

• 1735

In the case of the judicial treatment of first nations children by Canadian family courts, the question of heritage and culture is second to the immediate concern of physical and emotional welfare of children. As a responsible community, the AFN wishes to express its serious concerns over the disregards of the heritage and culture of first nations children by the courts of Canada in the name of the law.

The Assembly of First Nations submits this brief, which represents the following points: the impact of Canada's family court system on first nations children involved in custody arrangements; major issues concerning access arrangements involving first nations children; a description of jurisdiction as the most critical issue in this area.

An example of alternate approaches include the U.S. Indian child welfare act, advocate customary adoptions, alternative dispute resolutions and customary traditions and practices. I want to really stress that the jurisdiction problem is the major issue on all fronts.

Over time, the welfare of first nations children with respect to custody and access has fallen under provincial jurisdiction, because although parliament has the jurisdiction to legislate remedies, it has chosen not to provide whole consistency and legal responsibilities. The Indian Act does not contain the specific reference to child custody and access, but in 1951 the act was amended to add section 88 which states:

Subject to the terms of any treaty and any other act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable and in respect to Indians in that province, except to the extent that such laws are inconsistent with this act, and except to the extent that such laws make provision for the matter for which provision is made by and under this act.

It is implied from this section of the act that provincial child protection laws and services extend to first nations children both on and off reserve.

We as chiefs across Canada don't recognize any boundaries where our children are. If they're on reserve, great, but if they're off reserve, we still have that responsibility to them. This is coming from the point of view from leadership and this is the area that I want to stress to you, that we do have a responsibility but we need your help to have that, as I'll illustrate here.

The first nations traditional child welfare systems which are inherent in the life of first nations communities have been severely disrupted by the introduction of foreign, i.e. provincial, laws. The system of family or community members in taking care of a child was and still is common. The general expectation was that the entire extended family act as a support system for the raising of the child. The extended family remains a strong reality in first nations communities. In more modern times this has also been applied to situations where children have been affected by separation and divorce.

I think you're becoming aware that in first nations communities the extended family plays a most important part to our children, and you probably have heard comments from time to time that it takes a whole community to raise a child. I think these are issues we have to look at.

The Canadian family court system holds that it works in the best interests of the child, yet this approach has had the opposite effect on first nations children. The system focuses on the child as an individual and therefore makes judgment, overlooking the contribution traditionally made by the community and the extended family.

• 1740

The child welfare system in Canada creates very few statistics that reflect the impact of Canadian family court systems on first nations children. Stats on children in care provide perhaps the most complete picture of aboriginal involvement. Family support systems, child protection reports and investigations have not generally had statistics that would identify first nations caseload.

You recognize that a lot of the social workers have major caseloads and so a lot of times, a lot of our children slip through the system. I think it's important that we recognize these issues because when it comes to first nations children, the future development and nourishment of those children being recognized as first nations and strong community members of that future relies heavily on this issue.

As an example, the national longitude survey of children and youth in 1994 is Canada's most comprehensive study into the effect of separation and divorce of the nation's children. Yet first nations children were excluded form this study. How could you understand what has taken place? How could you understand the effects of what has taken place?

How do we put remedies to that if you don't understand the system itself and the long term effects? I think you all understand a lot of the problems we encounter, and I don't have to go into them.

Even when statistics are generated, they are usually under counted. Generally a child has to have an absolute genetic aboriginal appearance to be included in the stats as aboriginal. For first nations children this especially applies to those off reserve.

We do know that first nations children represent a disproportionate number of in care cases. Stats by the department of Indian affairs show that the number of aboriginal children in care is much higher than their population proportion. For example, in British Columbia 50.8% of the children in care by court orders are aboriginal. This is the province I'm from. A couple of months ago you heard what happened up in Quesnel. That just tastes of what has been brought forward.

In addition, aboriginal children represent 29.5% of British Columbia child and family services caseloads as of January 31, 1997. Nationally, 4% of first nations children were in custody of a child and family services agency in 1996 and 1997. This means that almost one in 20 first nations children is no longer part of their community and without the protection of their first nations rights. That's a major impact.

Although data regarding the number of child custody cases involving first nations children and/or the number of first nations children affected by the child custody cases are difficult to obtain, first nations child welfare advocates indicate that again first nations children are not represented equally.

One of the major reasons access becomes an issue in the resentment over court decreed arrangements, including financial, is that community oriented approaches emphasize that traditional first nations practices will also be of benefit in this situation.

Although the national longitude survey of children and youth did not include first nations children, it still provided useful insight into the situation. The study found that more children saw their non-custodial parents regularly, at least once a month, when private support arrangement were made rather than court imposed. The study also indicates that a cooling off period after the parents separated is a good thing and in many cases helps avoid a court order settlement.

• 1745

These results prove that a less formal and more conciliatory approach works better. This approach matches the more family and community oriented traditional approach employed by first nations.

Basically a lot of times when there are a lot of problems with the family and sometimes in the extended families the aunts or the uncles or the grandfathers would take the child, and there's a period of cooling off, as illustrated here. There's an area where the child is protected. The child is safe and I think that's an issue we have to look at. It's the community that gives the strength to our children and how we build that.

Interculture problems have also become an access issue. As we have already stated, the culture aspect of child custody cases is of paramount importance. First nations believe that the language and culture of their community should be viewed as a positive force in the life of the child.

I think we have a full understanding of that, therefore every reasonable effort should be made to provide the first nation child with the heritage and traditional ideas and values. In many cases court decisions do not reflect the needs to maintain these values or they are not a strong consideration in the decision.

We have heard many horror stories of what has happened to children who were adopted and brought up in foster homes. We understand a lot of them are lost because of their identity and I think this is an important issue in Canada. In my view it's important that we give the best protection to the children. If we don't do that, what is going to happen to the next generation, to the first nations? I think that is an important part. These children have to be brought up on our reserves. They have to be brought up in extended families or in our communities by responsible people who will look after them and give them all those needs of a first nations concept.

As the U.S. has traditionally respected the treaty rights of first nations people to live and work on both sides of the Canada-United States border, cross-border problems arise when a child custody case falls into this scenario. Conflicts in the laws and status of first nations governments add to the confusion for both the parents and the children when this situation occurs. It is necessary for the Government of Canada to recognize jurisdictions of first nations community and develop legislation similar to the United States child welfare act.

A critical issue is jurisdiction. As first nations traditionally deal with the federal government in Canada, provincial legislation governing this area inhibits the ability of first nations communities to effect positive change. As our experiences with Health Canada and the social transfer process have demonstrated, the federal government is again following the trend of offloading its fiduciary responsibility to the provinces.

The cross-border issue indicated previously highlights the fact that first nations jurisdiction must be recognized. This would allow first nations on both sides of Canada-U.S. border to make agreements. Therefore it is important that bilateral approaches be instituted to fully respect the realities of first nations children situations.

In addition, as a distinct community within Canada, the people of first nations complain that the issues of culture and heritage are often ignored by the courts addressing cases which involve children recognized as sharing in the inherent first nations community.

The Assembly of First Nations advocates first nations heritage be acknowledged and worked into a normal school education in Canada and to be legislated as acceptable to the courts. These concepts are enhanced by the recognition of first nations jurisdiction. We recognize that the Government of Canada has taken steps to readdress some of the imbalances in this matter through initiatives such as employment equity and culture awareness programs. But for the most part the courts and social service systems remain mostly untouched by the example of the government. Canada's family court system must follow this lead and create a better atmosphere of knowledge and understanding of first nations communities and their jurisdictional complexity.

• 1750

Therefore it is obvious that the most important issue and primary area requiring change is jurisdiction. Any of the following alternatives and improvements we describe are integrated parts of first nation ways and values.

Changes to Canadian law and policy affecting child custody situations that respect first nation values and traditions must be based on first nation jurisdiction.

I hope you understand that the major importance of this whole issue is our responsibility and also the responsibility of the federal government. I think this is going to play the major change if you recognize what happens when there's a transfer to the provinces and when we are not part of that decision making. We want to be able to work but we want to be able to work with our responsibility to the children. We saw what happened to health and services and the effects.

As an example of federal legislation that has extended some autonomy of first nations the United States congress enacted the federal Indian child welfare act in 1978. The provision of the Indian child welfare act addressed child custody proceedings, foster care placements, determination of parental rights, preadoptive placements and adoptive placements as subject to the terms of the act.

In her article entitled “The Indian child welfare act in Nebraska: 15 Years” published in the “Creighton Law Review: A Foundation for the Future” Catherine M. Brooks explains that primary among the provisions of the act is the recognition of the exclusive tribal jurisdiction in many of the cases the act covers. Legal issues concerning the custody of children who are domicile or residing on the reservation of a federally recognized American Indian tribe or who are wards of the tribal courts of such a reservation shall be adjacent exclusively by the courts of that child's tribe.

Mr. Art Dedam (Director of Social Development, Assembly of First Nations): Madam Chair, I'll finish for Chief York.

The act provides preference that custody actions concerning children of a federally recognized tribe who live off the reservation be adjudicated by their tribal court.

Second, in cases filed in state juvenile courts, family courts, the act gives protections to the defendant parties, the subject child and the tribe of that child.

• 1755

Third, the act provides higher standards of proof in those Indian child custody cases that are filed and go forward in the state juvenile courts.

Fourth, the right to withdraw consent to a child's voluntary out-of-home placement or the voluntary surrender of one's parental rights is considerably enlarged for native persons who come under the purview of the act.

Fifth, the act specifies hierarchies for placement decisions, with provisions given to the child's own family members, secondly to the child's tribe and thirdly to the child's culture. Currently Canada's family law policies hold that, with respect to first nations children in jeopardy, pro-active steps must be taken to ensure that aboriginal and treaty rights of these children will not be judiciously extinguished.

Concerning advocacy, first nation communities are concerned with the emotional and physical welfare of our own children as well as those of our neighbours. Therefore it is deplorable that the courts dispose of the futures of first nations' children. These dispositions are usually made without realistic concern for their welfare as members of a distinct community or recognition of their cultural tradition of family and community.

The Assembly of First Nations recommends the establishment of an advocacy function for children caught in conflict. This function would consist of establishing a core of specially trained and culturally aware individuals to ensure that the child is actually having their best interests served.

Concerning customary adoption, the Assembly of First Nations would like to present the issue of customary adoption as a test case for further study by this joint committee. Such a study would be based on the grounds that it is a social behaviour that recognizes the child's social and cultural heritage, but is not formally recognized by the legal system of Canada. Presently on many reserves the band council will ask a family to take in the children for a specific period of time in cases where the parents, or parent, are unable or unwilling to care for those children.

Concerning alternative dispute resolution, the Canadian justice system, and in turn Canadian society, has begun to realize the benefits of alternative measures to resolve conflict. For example, sentencing circles to assist courts with judgments in criminal matters have demonstrated that having the community involved does make a positive difference. The Assembly of First Nations recommends that your joint committee conduct further investigation into the benefits of an alternative dispute resolution process in resolving custody of children.

Concerning customary traditional practices, the Assembly of First Nations wants a study commissioned to explore the established social behaviour known as customary traditional practices. It wants the study to propose modifications to the existing Canadian law and to promote legislation designed to provide the courts with guidelines as to how to respect the prescription of customary practices where they are appropriate.

In closing, first nations' families and communities have since time immemorial placed the well-being of the child as their focus. The child, in any matter before the community, is respected. The child is held as sacred and as one that holds our future. A child's welfare was inherent in the life of first nation communities. The assistance of family and/or community members in taking care of a child was common, and still is today. The extended family was available as a support system for the raising of children, and still is today. The extended family remains a strong reality in first nation communities.

Any changes to Canadian law and policies affecting child custody situations must respect these first nation values and traditions. To do so we must recognize that the most important issue and primary area requiring change is the area of jurisdiction. There must be true recognition of first nations' jurisdiction.

The Joint Chair (Senator Landon Pearson): Thank you very much.

Now we will now hear from the Metis National Council.

Ms. Sonia Prevost-Derbecker (Metis National Council): Thank you, elders, senators and committee members.

On behalf of the Metis National Council, I would like to thank you for this opportunity to speak to a very serious issue which has greatly affected our Metis communities and peoples in Canada.

Before I speak to the issue at hand, I feel it necessary to develop for you an understanding of what a Metis community might look like and how many Metis people live today.

I currently live and work with the Metis people in Manitoba. Therefore many of my references will come from Manitoban examples. Please keep in mind that in no way are these examples or reflections isolated to Manitoba. The Metis culture and community is prevalent throughout Canada.

In Manitoba alone there are approximately 130 Metis communities in existence. Many of these are found in remote or isolated areas which are unable to access some of the services that you and I might take for granted. There are as well an equal number of Metis people living in urban settings such as Winnipeg. A large number of this population have at some point come from one of the rural settings previously mentioned and often find it a difficult transition to integrate into an urban setting. Many find issues of racism, poverty and violence.

• 1800

Unlike some marginalized groups in Canada, the Metis people are quite distinct. They are people who live in their own communities, with distinct traditions that are often different from first nations, European and French traditions. They have not been understood in this light by many governments or peoples in Canada.

The Metis culture is both diverse and rich. Its traditions are family and community oriented. Our cultures have evolved from a blending of many cultures. It is not uncommon to find in many Metis communities populations that speak three to five languages. For instance, the woman who was supposed to be here today speaks five languages: Michif Cree, Michif Saulteaux, Cree, French and English.

The Canadian popular perception of the Metis culture might not take into account these and other factors. This limited understanding can be particularly true for people living in large urban settings who have never visited or heard of communities such as these. To understand how service delivery can best meet the needs of Metis children, one must first understand the Metis communities these children develop in. Many of these Metis communities have been battered by poverty and oppression since shortly after Canada's inception, yet their culture has survived, sustaining a beauty that can only be experienced.

The Metis National Council agrees that services for children must incorporate an understanding that the child's best interest is the primary concern. It is understood by most that divorce or separation causes damage to the children involved, even at the best of times. How we can lessen this damage with regards to custody and access is really the issue at hand. How we can address this within a Metis context is the reason I am here speaking to you today. The Metis National Council strongly recommends that a number of factors be taken into consideration.

Our first recommendation is the implementation of a mandatory counselling program for all parties involved in custody and access disputes. This counselling would operate during and after the custody and access dispute is complete. It would treat the parents in the case individually at first, then together, and finally with the children. This type of program would make parents more aware of their emotions and actions and how they impact on their children during marital breakup. At the same time it would allow all parties involved in the dispute a chance to say how they are impacted and teach communication skills to children and parents, thus enabling these relationships to continue on a positive level past the transition of separation.

The first stage of this counselling program would be a place where screening for abuse issues could occur. This piece is crucial if the parties involved are expected and able to move on to both mediation and joint counselling. Mediation works on the assumption that both parties are at an equal power level, that no intimidation or abuse is prevalent in the relationship. Asking the question “Are you being abused?” is not enough. Many individuals might not recognize the dynamics of the abuse they have been living with. As well, they might be intimidated by the other partner or afraid to answer directly. There may be feelings of embarrassment or shame associated with the abuse. Many factors can contribute to why an individual might not disclose past abuse. The use of individual counselling prior to mediation could ensure a more thorough screening than is presently available.

Our second recommendation is to ensure accessible and culturally sensitive services for Metis peoples. The lack of culturally appropriate service delivery in Metis communities and for Metis people living in urban settings has been an issue for generations. If mediation services are to operate successfully in Metis communities they must be offered in Michif and/or the first native language of that community, along with either English or French. Metis people must deliver this service. This would build the capacity of our people to empower our communities.

There must also be flexibility within the system to enable the participation of extended family members. This would be the prime opportunity to solicit input and support from the extended family on what actions would be in the best interest of the child. Family consultation is the fibre of the Metis sash. Each family member is a thread and when woven together it gives us strength as a people. Family consultations provide the best evidence for the definition of the best interest of the child. It takes into account the family, the community and the heritage of the child.

• 1805

Our third recommendation is to allow children to remain in the family home whenever possible. Too often children are taken from the family home during separation or divorce. This not only disrupts the children's schooling, but can also take them away from their culture, community, support network of friends and extended family. Children are often torn from one parent's house to the next, causing disruption in both families and a sense of instability in general for the children.

In the case of joint custody, a far better solution can be to allow the children to remain in the family home with the parents rotating between either a second common living space, or, where finances allow, their own separate living quarters.

Our fourth recommendation is mandatory training for all those who work in both mediation and the judicial systems on Metis culture, poverty issues and domestic violence, and how these topics affect custody and access disputes.

With an understanding that all systems involved in custody and access disputes are limited to the humanity with which they are delivered, there should be a more concerted effort made to ensure that all parties working in the system are aware of the possible dynamics involved when dealing with these issues. All too often when training is introduced to the judicial system we find that we are speaking to the converted; that is, speaking to those judges who already have a firm understanding around Metis culture, poverty issues and domestic violence. A stronger effort should be made to ensure that professionals who are resistant to change around these issues enter into effective training.

Speaking about child custody and access, a number of our concerns fall within provincial jurisdiction. These include issues of apprehension, repatriation, maintenance and support, the judicial and welfare systems and how these systems fail to help the marginalized, the poor, the oppressed, the Metis.

While we clearly understand the scope of the standing committee, the issues, as previously mentioned, are of great significance to the handling of the breakdown of Metis families. We hope there is room for the standing committee to recommend that the provinces assess their systems as they pertain to aboriginal people.

Our last and final recommendation is a continued effort to aid in the collection of child support. For generations we have ignored the fact that child poverty is a direct result of family poverty. This speaks directly to the lives of many Metis people. We respectfully commend efforts that are being made in some provinces to ensure consistent child support. If adults choose to have children, they must be willing to share their resources in the raising of those children. Ideally, we would like the parents to fully accept with joy the responsibilities of parenting.

In closing, I would like to remind you that in Metis culture there is only one group that we hold in the same light as children, and that group is our elders. We look to the past to see where we have been, to know where we are going, to understand and have vision for the future for our children. We do this because it is our responsibility. It is the way it has been done for generations, for the children. Thank you.

The Joint Chair (Senator Landon Pearson): Thank you very much. Does Mr. Larose wish to add something to that?

Mr. Lance Larose (Metis National Council): Good evening senators, committee members and elders. I would like to thank you for the opportunity to be here this evening to speak to you.

My colleague from Manitoba has already given you a bit of an understanding of the many obstacles that the Metis people face across this country, particularly in the smaller rural and northern communities.

There are about 123 Metis communities in the province of Saskatchewan. Many of them are small, rural and northern communities which do not have access to many of the services that the larger urban centres have.

I am here today to share a bit of a personal story. I am not here to whine or to lay blame. I am here to share a couple of personal points in my life and in the lives of my children that played a major role in the people we are today.

As a non-custodial parent I was at the mercy of the mother of my children. Our marriage and subsequent divorce were wrought with a lot of anger and bitterness. For all the years of anguish and suffering that I had caused my estranged wife, she in turn used the control of the assets of the children as a tool to punish me.

• 1810

My children were raised with stories from their mother of my violence, my abuse, not only toward their mother, but also toward them. The belief in these stories caused my children to fear and resent me for many years, thus making my visitations very uncomfortable with the children, finally to the point where they were non-existent. The children no longer wanted to visit out of fear, out of anger, out of resentment.

As the years went by my children were adopted by their stepfather. There was no consultation with me. I was not even notified that this process had occurred, that this had happened. They ceased being my children. The way I found out was, again, the mother used it to hurt me, to rub it in and say “Look what I have done”. It was very tragic for my children.

Today I am fortunate to have been able to build a relationship with my 21 year old daughter. I have a grandson who will be two this summer. Because my daughter is a healthy, strong young lady, together we were able to work beyond the anger and the resentment she grew up with.

I have a 23 year old son. Unfortunately he and I have never been able to form any type of relationship and I don't see that ever happening until some things in his life change to make him want to be a part of my life.

I am not here to whine or to complain, as I mentioned. I am just here to explain how damaging divorce and access can be to children. I make these statements to support the recommendations made by my colleague and to stress the need for legislation, not only to protect the children, but to prioritize the need to nurture the healthy bonds of children to both parents.

I also bring a couple of further recommendations. The first recommendation would be for both parties to have mandatory access to legal aid. Because the resources are very low for legal aid in the total budget of the province of Saskatchewan, the family law portion is very slim. The resources are very minimal. The way they operate is on a first-come, first-served basis. If the father is the first one to get to legal aid, chances are he will get the support and the mother will have to look elsewhere or go out of town to get the services.

The other recommendation would be that this special joint committee hold forums in the rural and northern communities. I notice by your past itineraries that you have visited a number of locations, mostly larger urban centres like Vancouver, Edmonton and Calgary. The smaller rural and northern communities are impacted more by of divorce and custody because of the lack of access and lack of resources.

We also recommend that our young people be given an opportunity to express their concerns as well to the committee. After all, they are the ones who are most affected by divorce and separation.

That is what I want to present to you. Once again I want to thank you for allowing me this time and for making it possible for me to be here.

The Joint Chair (Senator Landon Pearson): Thank you very much, Mr. Larose. I would like to tell you that originally we had planned to go to rural and northern communities, but our budget was cut in half, so we were held back in our original desire. We understand your point very well and would have liked to have been able to do that.

We will begin with questions from Mr. Lowther.

• 1815

Mr. Eric Lowther (Calgary Centre, Ref.): I have a question, although I don't feel too qualified to ask this question because I'm not too much aware of the jurisdictional differences and how those play out in first nations communities. So forgive me if my question is not too terribly intelligent.

Listening to the various presenters I hear common themes to what this committee has heard across Canada, a concern for trying to hear all parties of the family, mediation perhaps, early identification of abuse and dealing with that, trying to remain in the family home, provide stability for the children as much as possible.

The thing I'm a little confused about is the desire to respect jurisdiction, the desire to consider aboriginal and treaty rights and have the mediation be sensitive to cultural differences. I understand that would be a legitimate concern. Are there specific problems the first nations people have with the current divorce law or the way it works out today in a jurisdictional basis? Is it quite okay the way it is right now as far as the law goes? You would like it to be a little more sensitive to cultural and treaty concerns. Are there specific recommendations that you'd like to see made to the the Divorce Act. That's the thrust of my question, to try to get some clarity there. Is it a case of sensitivity or are there specific legal changes you would like to see made?

Mr. Art Dedam: At least from the Assembly of First Nations' perspective, our main concern is the child and what happens after divorce. The current jurisdictional quagmire we find ourselves in in terms of social policy as it affects or impacts first nations people is that once the divorce proceeding occurs and there's a custody situation, we're more concerned about how the child is dealt with. We believe that should be dealt with within the community and within our jurisdiction. In other words, we're saying that when dealing with a child in all matters we should have that jurisdiction, or our jurisdiction over that child should be recognized and respected.

In terms of how it's dealt with in the system, I think that's where we agree with the Metis and native women that there has to be a hell of a lot more sensitivity built into the system, all elements of the system. The current legal and jurisdictional regime, based and built on mainstream Canada, does not necessarily fit with our circumstances. I'll provide an example.

In a situation in my community on the east coast a young lady with twin daughters was involved in a messy separation and divorce proceeding whereby the husband, in evidence, showed that there was a certain amount of emotional and mental abuse. Physical abuse couldn't be proven. All this in front of the children. The children were sensitive to this. The courts decided to award custody because she was denied access to financial resources. She didn't have a job. She was a homemaker.

It got to the point where the gentlemen, I use that term very loosely, had actually attempted to kidnap this woman, his former wife, as well as the woman's mother. He beat them in front of the children. The gentleman was charged with nine separate different charges.

• 1820

The judge found the man guilty on all nine charges, fined him $5 for each charge and suspended sentence on the rest, on all nine charges, and admonished the woman for being a bad wife and mother. These children went back with the mother to the community prior to all this happening and they became well adapted. The extended family took over.

For several months, because of a court order, she was considered a criminal in the eyes of Canadian law. There was no sensitivity. Only by extreme luck did she encounter finally someone who was able to provide her with appropriate legal advice. Thank God she was able to find a judge who understood, who was sensitive to the first nations circumstances and how the community values came into play and finally made her a non-criminal.

When we look at the whole system we have to build in not only with the people who are working with the parents in the legal system but also with the social workers and the people who are coming into contact with the children, including judges. I guess that's what we're talking about. We believe that if the jurisdiction were recognized for first nations over our children then we could best handle it. We're certainly prepared to work with agencies, with government, with this committee, to come up with ways and means to develop sensitivity programs for our judges and anyone in the court systems, the legal systems.

Ms. Sonya Prevost-Derbecker: There was some question prior to my leaving Manitoba as to whether this current legislative review was taking a look at grandparents having mandatory access. Is that correct? I'm displaying my ignorance.

Mrs. Sheila Finestone: That grandmother right behind you has been following this hearing from day one.

Ms. Sonya Prevost-Derbecker: The stance from the Manitoba Metis Federation and in turn the people I represent here, the Metis National Council, is that extended family get looked into in terms of providing service where service is needed with an understanding that they are also scrutinized as would any parent be in a custody and access dispute around issues of abuse.

Senator Erminie J. Cohen (Saint John, PC): I just want to tell you, Mr. Dedam, before I ask my question, when you said she's a homemaker, she doesn't have a job, homemakers have the biggest job in the world.

An hon. member: And the most important one.

Senator Erminie Cohen: And an important one. I want to ask Mr. Larose about legal aid. That's a problem all across the country. There's not enough money for legal aid. I hope that we will make a recommendation that some form of support services be in place for people to access them. It isn't fair if only one parent gets legal aid advice. The other parent has to flounder in a court where the judge is not sympathetic to the person who has to plead their own case. That's something we're hearing from witnesses all over the country. That's something I hope we'll be able to take a look at.

For example, somebody from the aboriginal community marries somebody from outside the community and there is a divorce. The mother takes the child and moves off the reservation or outside the community. How do you handle the cultural advantages the father could give the child that would be important to the child's development? I imagine it would be difficult unless the separation is very amicable.

• 1825

Mr. Wendall Nicholas (Adviser, Disability Issues, Social Development, Assembly of First Nations): I just wanted to offer I guess almost the opposite situation from my friend, Mr. Larose. I'm a Malecite first nations person. My wife had a son from a previous marriage. My son's natural father is non-native. The dilemma we're in is that currently Canadian law and policies do not respect the situation and the dilemma my son is in.

We're concerned that as we take his situation to the courts to sort out custody with his natural father he potentially may lose the opportunities and the rights that he has as a Micmac Indian.

This illustrates to a certain extent what you're asking. It's something that concerns my family. I should say my wife's family. We don't know what the outcome will mean. We don't know what the court will say. Right now family courts are not sensitive to the reality that my son, through this judicial process, may lose his aboriginal rights.

Senator Erminie Cohen: The judges and the lawyers need some sort of training period to sensitize them to what your culture really means to the child. It's a wonderful culture, thousands of years old. We surely have to look at that.

The other thing that shocked me was that in the longitudinal study aboriginal children were not taken into consideration. I think we have to make a very strong statement about that. If we do studies in Canada they have to include children from all ethnic communities, especially the first nations.

Are you from New Brunswick?

Mr. Wendall Nicholas: Yes.

Senator Erminie Cohen: I'm from New Brunswick too. I recognized the name Nicholas. It's a very proud name.

Mr. Art Dedam: In light of that type of situation we also need to examine what we can do. I agree that we need to make the system more sensitive to the needs of our children. At the same time I think it's important that in situations like Mr. Nicholas talked about we need to look at the infrastructure we already have in place for a situation where the mother or father and\or the child move off to Montreal or Winnipeg or wherever. In Ottawa there are friendship centres. There is a community here. We need to examine some way to establish outreach programs, whereby the culture of the child is available, they can learn and grow as a child and have some exposure to their culture.

I know it's not going to possible in every single case, but I think it's imperative because this is our future. We need to work together to make it possible for that child to be exposed to their culture. The friendship centres are a fine example of service delivery organizations that do that in major and in smaller urban centres.

Mr. Lance Larose: The organization I represent in Saskatchewan is Metis family and community justice services. One of the things we find very fortunate in Saskatchewan along with our education affiliate, Gabriel Dumont Institute, is we're developing a training package right now for social services for the city police, for some departments within provincial justice that are interested. They want to learn about Metis culture. They want to understand us a lot better.

We're very fortunate that this process is beginning to happen, but it has to happen on a broader scale. Rather than piecemeal it has to happen on a much greater scale than it is. It is beginning and it is starting to happen.

• 1830

Senator Erminie Cohen: One small step for man; one giant step for mankind?

Mr. Lance Larose: That's correct, yes. You're right.

Mrs. Sheila Finestone: I think it is just a matter of some building blocks for all of us around this table.

Mr. Nicholas, how old is your son?

Mr. Wendall Nicholas: My son is eight years old.

Mrs. Sheila Finestone: This is a question we have been asking ourselves. I believe that our children don't belong to us but that we belong to the children, and there is a significant difference. At what point are we able to ask the child or include the child without making the child feel that he has to pick a parent and make a choice? I don't know the answer to that question.

That is one of the things that struck me when you were speaking. As a person who comes from a different cultural community myself, I feel very strongly about the maintenance of my cultural heritage and the traditions that we pass along, and I know that is very meaningful to the first nations and to the first peoples of this land. I appreciate that very much.

I was just wondering if you thought your son was old enough that the cultural component had already demonstrated the fact that it was an important part of the asset, and I don't want the answer because I'm not running a social service agency. It was just a thought that was going through my head.

Listening to both Mr. Nicholas and Mr. Larose, and taking into account what Sonia said, it seems to me, Madam Chairman, that one of the things we might want to examine much more closely is the point made on customary traditional practices. The kind of study which has been suggested could be used to explore the social behaviour and the proposed modifications to the existing Canadian law, which were pointed out to us in the brief that was presented. In particular, I think the two briefs go very well together with respect to the closing comments of the first nations and the Metis.

There is a tremendous amount of similarity, even though there are distinctive differences, and God bless our multicultural country. I think our future is with the recognition of the multicultural weaving that makes the beautiful tapestry that can be Canada, if we are sensitive to it.

If some kind of a pilot project were to be put together, the first step, before you get to mediation, reconciliation or arbitration, you have indicated should be the friend of the family concept. That is something we heard about quite some ago. It seems to me that is what you are talking about.

At the outset you would bring in the wider circle, a friend of the family, where you could take a look at the whole picture, not little pieces and parts of it, and together you would look at the youngster, the mother and the father, the whole family unit, to find some resolution potential. That would account for that cooling off period that you referred to.

Who would you look at? Would you pick the elders from both sides of the family? Would you pick a family friend from the outside? Would you pick a teacher? How would you go about setting it up? I would like to recommend in our report to the minister that she set up a couple of study groups, or study examples that we could put into place.

How would you look at it? What do you think would be in the best interest of the child? I am only thinking of the child now. You are the people who are going to surround that child, be it with the mother, the father, the stepfather, the grandmother, the grandfather or the aunts and uncles. I don't know. It is an unknown. Each case is different.

What would you do?

Ms. Sonia Prevost-Derbecker: First of all, it is important to note that the two parents would go in, individually, prior to this. At some point the larger family discussion could occur, if you want to call it a discussion, and the leader of—

Mrs. Sheila Finestone: Who would that be with?

Ms. Sonia Prevost-Derbecker: Any active members of the family who choose to be there. That keeps it open.

• 1835

This isn't a counselling session, and you could approach it from two different ways. The counselling session occurs with the parents and the child. If there are other people who are going to be gaining access and custody, they might also be included. But the reasoning for a larger family discussion is to get input from many different sources on what might be best for the child and to have a larger perspective, a larger picture. This could be run perhaps out of mediation. It could be run as a program. There are many ways to approach it.

Mrs. Sheila Finestone: There would be a difference if you were in an urban setting versus the small, out of town communities that are traditional to the Metis communities?

Ms. Sonia Prevost-Derbecker: Yes.

Mrs. Sheila Finestone: By the way, I regret that the Metis women who were here earlier, who gave a very good presentation, were not here to hear you because I think that their attitude toward your lack of interest in their concerns, which is what I think, would have been allayed in many ways. It is regrettable.

Do you want to add to that before I move on to something else?

Mr. Wendall Nicholas: Mrs. Finestone, that is why in our presentation we tried to illustrate the benefits of what has occurred with the Indian Child Welfare Act of the United States. There are some predeterminations there and it is the rule of law in the United States. Professor Brooks illustrated that in her paper.

But in terms of being focused on the child, we openly discussed this with our son and, basically, helped him to make decisions. He has his own thoughts about this.

We also discussed this quite proudly within our families as well. As we make decisions to advance us to the court level, we are going to be seeing our support coming from our families.

When my wife and I married two years ago the community took in not just my wife, but my son. That is important. The community has accepted him as my son and, as far as we are concerned within our own culture, we have a family. But in terms of Canadian law and Canadian policy we have an unfinished family.

Mrs. Sheila Finestone: I think you describe it very well. However, I don't know if that will be resolved in the lifetime of this committee.

I must say that the statistics that were presented to us are very disquieting. Of the children in custody and placement within British Columbia, 50.8% are aboriginal children. Why are these children there? There are a number of reasons that are based on family life and something that has happened to that family life.

I think we have before us people who are speaking as witnesses of those families. I can't know that existence, I can only try to elucidate it.

Given the close relationship I see between the presentation of the Metis National Council and the presentation made by the Assembly of First Nations, when they talk about the area of jurisdiction they don't refer to the Metis. They are Canadians. They are Canadians because of Louis Riel and a few other things in your history and background over many generations. We have all become far more sensitive to that issue.

But given the pattern that you have laid out in your presentations and your recommendations, I wonder if at some point you would look at them together, or at least send us an opinion on the presentations. I would like you to look at the five points that were submitted as optional mechanisms for approaching this very sensitive issue which is very important to the well-being of Canada.

• 1840

If you like it, let us know. If you don't like it and you see things that need to be changed, it would be very helpful in our writing this report. The same thing goes with what you have had to say in your own report, which is also very well written, for which I thank you.

It seems to me that the jurisdictional issue is the one additional factor that I see in there that seems to go beyond the impact. The impact on the lives of our children seems to be the same and they are multicultural and cultural. Is that right? Is that accurate?

Mr. Wendall Nicholas: Yes.

Mrs. Sheila Finestone: I would appreciate that, and our recommendation to the minister that we set up the task force or the example. The best practice is what I'm looking for.

Mr. Art Dedam: I just wanted to respond to Mrs. Finestone's comments and indicate that certainly we're willing to do some analysis—

Mrs. Sheila Finestone: The Metis women's organization, please.

Mr. Art Dedam: We're prepared to look at all the presentations and certainly share common interests.

We'd also like to offer something to the committee as well in the sense that Assembly of First Nations has just completed a comprehensive research program on social issues. One of the studies was on jurisdiction and also in this perspective a fine study and report on the family. We'd be more than willing to share that with this committee.

The Joint Chair (Senator Landon Pearson): Please do.

Mr. Art Dedam: We'll send it to the clerk for distribution.

Mr. Paul Szabo (Mississauga South, Lib.): Over my parliamentary career, I've presented a petition in the House of Commons probably close to 200 times. One part of it says that managing the family home and caring for preschool children is an honourable profession which has not been recognized for its value to our society. It is unpaid work but it is still work and it deserves to be respected and compensated.

I think you know where I'm coming from on this and I think this is maybe part of a societal problem. It's not a cultural thing. It's something we have to recognize.

We have some judges coming before us tonight and there's a very important question we have to deal with. I want to know if you can advise us what percentage of custody awards are made to the mother in the community you are speaking for. Do you believe that the courts or the judges have erred in their judgement given the prevalence of custody awards?

Do you have any information about what percentage of divorces are challenged in the courts? Do you have any idea of how many people actually go to court, half, a quarter?

Ms. Sonia Prevost-Derbecker: I didn't come armed with stats. I can't give you an accurate perspective.

Ninety-five per cent unemployment in many Metis communities means these individuals can't get to where the services are. That speaks for itself.

Mr. Paul Szabo: From your own personal knowledge and experience, is it generally the case that custody is awarded to the mother?

Mr. Art Dedam: Yes.

Ms. Sonia Prevost-Derbecker: I don't have stats, but my father raised me.

Chief Victor York: A lot of judges, unless they take a particular interest in first nations and what has happened to them, don't understand a lot of the concepts that are taking place.

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The study here shows that a lot of times first nations are not part of the statistics for people to read and understand. When they make those judgments, a lot of times they don't understand the impact it makes in the community.

We're definitely going to share the information with you from the symposium in Winnipeg showing the social impacts when decisions are made without our consent or even involving us. I think it's an important issue and we want to work with the Government of Canada.

Mrs. Sheila Finestone: Madam Chair, as a point of information with the judges, would it be their recommendation that we need to train the support staff and/or the judges so they're more culturally sensitive?

The Joint Chair (Senator Landon Pearson): I see heads nodding.

Thank you very much for coming in front of us. The committee is adjourned until 7 p.m.