September 29, 2023 – This week, the Saskatchewan Court of Appeal decided not to let the Women’s Legal Education and Action Fund (LEAF) intervene in a case raising important issues about how family law courts consider Indigenous cultural continuity and the impact of family violence when making decisions about parenting time.
This decision was announced only days before the National Day for Truth and Reconciliation on September 30th.
The parents in this case, an Indigenous mother and a non-Indigenous father, separated and agreed to joint decision-making and shared custody of their child. The mother later fled to the United States with the child, stating that the father had been abusive. The mother was charged criminally, and her parenting time was suspended. Interim parenting orders from family court judges allowed the mother to have only very limited supervised access to the child, and gave the father sole decision-making authority.
The Court acknowledged that “family violence is disproportionately experienced by Indigenous women and girls” and agreed that “this raises important issues of public interest.” They found, however, that “public-interest intervention in private, family-law disputes is and should be rare.”
“The Court calls family law disputes private, but decisions in these cases can have real consequences for other people in the family law system,” says Pam Hrick, Executive Director and General Counsel of LEAF. “Interveners like LEAF bring an important and necessary perspective on these broader impacts, including the effects on Indigenous women and children.”
LEAF had planned to argue that, where a child is Indigenous, courts making decisions about parenting time must acknowledge the critical importance of their Indigenous heritage and culture. Their decisions should look to promote reconciliation and respect constitutional values, acknowledging the wider context of systemic discrimination and cultural genocide of Indigenous peoples.
“Indigenous children have the right to enjoy the best possible future, both as individuals and as members of their communities,” says Hrick. “The need to push for this right could not be any clearer as we mark the National Day for Truth and Reconciliation and acknowledge the ongoing legacy of residential schools.”
LEAF also planned to emphasize the importance of intimate partner violence (IPV) in considering the best interests of a child. IPV harms children’s physical, emotional, and psychological safety and well-being. It is also very common, especially for Indigenous women. More than 43% of Indigenous women have experienced physical or sexual violence from an intimate partner, with more than 60% having experienced psychological violence.
“Women, and particularly Indigenous women, who report IPV continue to face disbelief and minimization from the family law system,” says Hrick. “Although we cannot intervene in this case, LEAF will continue to work to ensure that their realities and experiences will no longer be swept under the rug.”
Kimberly Stonechild (Lavoie Stonechild Law Office) and Joanna Radbord (McCarthy Hansen & Company LLP) represented LEAF. LEAF is grateful to the members of the case committee that helped shape the intervention: Grace Ajele, Gillian Bourke, Frances Chapman, Hadley Friedland, Koren Lightning-Earle, and Maggie Wente.
For media inquiries, please contact:
Project Director, LEAF
About the Women’s Legal Education and Action Fund (LEAF)
The Women’s Legal Education and Action Fund (LEAF) is a national not-for-profit that works to advance the equality rights of women, girls, trans, and non-binary people in Canada through litigation, law reform, and public legal education. Since 1985, LEAF has intervened in more than 130 cases that have helped shape the Canadian Charter of Rights and Freedoms. To find out more, visit www.leaf.ca.