Family violence is one of the most devastating and demoralizing forms of oppression in our society. The effects of family violence have far reaching implications for the victims and children who witness the violence. While men can be the victims of family violence, more often than not, it is women and children. Family violence takes many forms - including physical, psychological, sexual, emotional and financial abuse and can be defined to include any member of a family. In looking at family violence among First Nation people, context is very important.

Family violence in a First Nations context is viewed by many First Nation people as a social ill that has evolved as a result of the historical injustices and cultural assaults experienced over centuries of colonization. In this regard, one authority has defined family violence in an Aboriginal context as:

... a consequence to colonization, forced assimilation, and cultural genocide, the learned negative, cumulative, multi-generational actions, values, beliefs, attitudes and behavioural patterns practiced by one or more people that weaken or destroy the harmony and well-being of an aboriginal individual, family, extended family, community or nationhood.¹⁷⁹

Karen Green has described some of the roots of family violence in First Nation communities:

According to Sharlene Frank, in a 1991 study by the Aboriginal Nurses Association of Canada..it was found that three leading factors which sustained family violence were alcohol and substance abuse, economic problems and intergenerational abuse.
The roots of this problem are deep and have a long history. The loss of Aboriginal culture and tradition rendered many Aboriginal people, both men and women, powerless and dependent. Acknowledging the root of the problem will empower individuals, families and communities to address the issue.¹⁸⁰

The high rate of family violence in First Nation communities has been documented in several reports.¹⁸¹ In fact, violence and abuse of women and children has been described by First Nation women as reaching epidemic proportions.¹⁸² A survey conducted by the Ontario Native Women's Association in 1989, found that 80% of Aboriginal women had personally experienced family violence, while 50 % of the participants in a survey by the Indigenous women's collective indicated that they had been physically abused. ¹⁸³

The plight of women caught in relationships of abuse can lead to other dire situations. When minor children of one or both band members are involved then the consequences can have even further reaching effects. As an example, when one woman left an abusive relationship with her husband she was unable to get exclusive possession of the matrimonial home which was located on her husband's reserve. That woman became homeless, living with different relatives with whom she could stay for one or two nights at a time. This situation was compounded by the fact that she did not want to go back to her birth Band because she was no longer a member there.¹⁸⁴

When the cycle of family violence comes to a head, victims of violence often seek protection from police and the court system. Family law litigation typically involves separated spouses who are dealing with the emotional toll that a break-up often entails. When it is complicated with the issue of family violence, it can have a devastating impact on the victims of violence and their children. Quite often legal proceedings must be commenced on an urgent basis. First Nation women who live on reserves that are isolated without adequate community and financial resources are substantially more disadvantaged than women in the general population. Work is required on an urgent basis, not only to bring relief to the victims of family violence and their children, but also to assist them in the healing process. There is a need for a range of responses by all levels of governments to make the safety of First Nation women a priority in a family law context.

This discussion paper is primarily focused on the challenge of how to ensure that women on reserves have access to the same level and scope of legal remedies with respect to matrimonial real property as women off reserve. Unfortunately, the scope of protection is not as broad as off reserve because of the constitutional and enforcement challenges discussed in other sections of this paper. Criminal law remedies and some provincial civil law remedies of general application are available on reserve to women seeking protection from abusive partners. Federal law is silent on the subject of family violence in a civil context on reserve. Issues relating to First Nation jurisdiction remain outstanding.

For example, even where women on reserve are able to obtain a restraining order under the Criminal Code, they cannot get an order for exclusive possession to secure a home for themselves and any children that they may have - unless they are the sole person named on a Certificate of Possession or its equivalent. The problems presented by the non-application of certain provincial statutes and the lack of federal legislation was succinctly described by the Royal Commission on Aboriginal Peoples:

The male partner's control of the residence becomes problematic if a woman is assaulted and calls for protection in the form of a restraining order restricting the man's access to the marital home. The assault charge will be dealt with as a criminal matter, but if she wishes to have sole occupancy of the marital home, the woman must also launch a civil action in another court. If the marital home is on a reserve, the provincial court is unable to handle the case because it falls within federal jurisdiction over "Lands reserved for the Indians", yet federal legislation to deal with the matter does not exist. Consequently, women often have no alternative but to leave the marital home. Given the shortage of housing on most reserves, women in these circumstances usually have to choose between moving in with relatives already living in overcrowded homes, or leaving the community. The trauma of abuse is thus compounded by the loss of the woman's home, extended family and familiar surroundings.¹⁸⁵

¹⁷⁹Health Canada-National Clearinghouse on Family Violence, Family Violence in Aboriginal Communities: An Aboriginal Perspective (Ottawa: Health Canada, 1996), p. 1. Other definitions of family violence are discussed in Evelyn Zellerer, Violence Against Aboriginal Women, Research Report prepared for the Royal Commission on Aboriginal Peoples, August 1993 (RCAP CD ROM at Record 117844).
¹⁸⁰ Karen Green, "Family Violence in Aboriginal Communities", B.C. Institute Against Family Violence Newsletter, Vol. 8, Issue No. 2 2001.
¹⁸¹See for example, A.C. Hamilton and C.M. Sinclair (Commissioners), Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People, Chapter 13: Women. (Winnipeg: Public Inquiry into the Administration of Justice and Aboriginal People, 1991), and Emma D. LaRocque, the Royal Commission on Aboriginal Peoples, The Path to Healing. (Ottawa: Canada Communications Group, 1994).
¹⁸²A.C. Hamilton and C.M. Sinclair (Commissioners), Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People, Chapter 13: Women. (Winnipeg: Public Inquiry into the Administration of Justice and Aboriginal People, 1991), at p.7.
¹⁸³Ibid at p.9.
¹⁸⁴Mavis A. Erickson, "Where are the Women?: Report of the Special Representative on the Protection of First Nation women's Rights", January 12, 2001 at p.74.

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