The best interests of the aboriginal child.

• Author: Hunter, Troy

In the British Columbia Family Law Act, (FLA) Part 4, Division 7--Extra-provincial Matters Respecting Parenting Arrangements, there is legislation designed to ensure the best interests of the child are met. The Court is guided by best interests on numerous factors including:

* the child's health and emotional well-being;

* the views of the child if appropriate; the nature and strength of relationships between the child and significant persons;

* the child's history concerning their care;

* their need for stability taking into consideration their age and stage of development;

* the ability of a guardian or the person seeking guardianship or parental responsibilities to exercise such responsibilities, considering access, parenting time, and contact with the child;

* family violence;

* the safety or well-being of the child;

* appropriateness of arrangements;

* cooperation on issues; and

* other court proceedings.

In addition to best interests, there are guiding principles that must also be adhered to including:

* protection of the child from abuse, neglect, harm or threats of harm;

* family as the preferred environment and responsibility for protection resting primarily with the parents;

* any available support services;

* the ability of a family in providing a safe and nurturing environment;

* the child's views;

* kinship ties and preserving as much as possible a child's attachment to extended family;

* the preservation of the cultural identity of Aboriginal children; and

* decisions being made and implemented in a timely manner.

In preserving cultural identity of Aboriginal children, this speaks to specifics such as where the aboriginal child has his or her aboriginal roots. The legislation defines an Aboriginal child as a child that is registered under the Indian Act, has a biological parent that is registered under the Indian Act, or who is a Nisga'a child, or a treaty first nation child, or one that self identifies to be Aboriginal and has Aboriginal ancestry. The definition is broad enough to encompass all children of Aboriginal ancestry including Metis, and there are no fractions or blood quantum restrictions.

An interesting case was before the B.C. Court of Appeal back in the late 1990s where a similar issue was raised under Article 13 of the Convention on the Civil Aspects of International Child Abduction [3] (the "Hague Convention"). In Hoskins v Boyd [1997] B.C.J. No. 958 [4], it was argued that, "the child will suffer grave risk of...