My former partner lives on a First Nation reserve but I don’t live there anymore. We have a custody and access order that says our children are supposed to live with me and visit him every other weekend...

Question: 
My former partner lives on a First Nation reserve but I don’t live there anymore. We have a custody and access order that says our children are supposed to live with me and visit him every other weekend. He has told me that once the children come to see him on the reserve he is going to keep them and I won’t be able to do anything about it. Is he right?
Answer: 

There is a risk that you will not be able to enforce your court order on the reserve. It depends on things like:

  • which First Nation reserve your former partner lives on
  • if that First Nation has its own laws about children who live with members of the band on a reserve
  • whether your custody and access order was based on the Ontario Children's Law Reform Act or the federal Divorce Act
  • how that First Nation deals with orders based on the Ontario Children's Law Reform Act
  • whether you or your children are registered with the First Nation

When a parent lives on a First Nation reserve, there may be two laws that say different things about children. There could be the First Nation's laws, which are usually found in the by-laws made by the Chief and Council. And there could be a court order based on the Ontario Children's Law Reform Act. In some cases, the First Nation's laws apply instead of the court order based on the Ontario Children's Law Reform Act.

Each First Nation may have a different way of dealing with custody and access orders made under the Ontario Children's Law Reform Act. Some Chiefs and Councils have decided that First Nation police will enforce these orders. Others have decided to allow the Ontario Provincial Police or Royal Canadian Mounted Police to enforce them. Still others have decided not to enforce any provincial family court orders on their land.

A custody and access order based on the Federal Divorce Act however, does apply on a First Nation reserve. But it can also be complicated to enforce.

If your ex-partner lives on a First Nation reserve, you should tell the judge before they make a custody and access order. Then the judge knows that there might be different laws that apply.

This is a complicated area of law. You should get legal advice from a family law lawyer.Ideally, your lawyer should also have experience dealing with First Nation issues.

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