Law Times

Law Times • sepTember 12, 2016 Page 7 www.lawtimesnews.com COMMENT Indigenous law and Canadian history T o mark the forthcoming 150 th anniversary of Confederation in 2017, I will do a series of three columns, one devoted to each of our legal traditions: indigenous law, civil law and common law. What does each of them contribute to the tapestry of modern Canadian law? Unlike many European nations and our neighbour to the south, which focus on one monolithic national legal order to the exclusion of all others, legal pluralism is in our DNA. Pluralism leads to tensions and complications, for sure, but so do attempts to impose legal uniformity, as was belatedly recognized with devolution in Britain in the late 1990s. Legal monotheism has had its adherents in Canada, too, but by and large pluralism has prevailed. Samuel de Champlain famously re- marked that the indigenous peoples he en- countered had "ni foi, ni loi, ni roi" — neither religion, law or king. Only with regard to the latter was he correct: Indigenous peoples recognized no source of coercive polit- ical authority in the European sense. With regard to religion, at first the Europeans thought of native beliefs only as "supersti- tion." Eventually, they came to recognize native spirituality, but denigrated it as not being the "true religion," Christianity. With regard to law, Europeans found it hard to understand how there could be no recognizable formal legal institutions and yet so little crime and disorder within native communities. Disorder was always external — war with other tribes. Within a given community, individuals seemed to possess almost total free- dom — yet all necessary work got done without anyone hav- ing to be paid or coerced into doing it (while some indig- enous societies practised slav- ery, their economies did not require it). Europeans were used to law emanating from the state (as well as from other bodies), but native peoples had no state as such. Rather, they had long-established patterns of behaviour that changed over time and adapted to new situations. They also had a culture where members internalized what was expected because they saw it was necessary for the common good, a phenomenon some scholars call " jurispractice." The Jesuits, who spent much time with the Wendat, Innu and other indigenous peoples, came to understand indigenous law, albeit not perfectly, and to write about it. These early writings, along with in- digenous oral traditions, allow us to gain some idea of pre-contact indigenous law. Take constitutional law. Its fundamental tenet was that a chief possessed the author- ity to speak for his people only so long as he made good decisions and respected the will of his people. He had no "executive" to carry out decisions that might be unpopu- lar. And while chiefs were male, women as well as men had political voice; in some indigenous cultures, clan mothers had a virtual veto over important decisions af- fecting the group. Family law was much simpler than contemporary European law because it was much less tied up with property and Christian morality. Relative sexual free- dom in youth was permitted. In adulthood, one was expected to choose a spouse (in the case of men in some cultures, several wives were allowed), with the marriage publicly recognized by a ceremony of commitment. Divorce by mutual consent or unilateral action was legal. Instead of a law of contract, there was a law of gift. Gift is a profoundly recipro- cal relationship in indigenous societies, not a unilateral one as in the common law. Europeans adapted to this idea for pur- poses of trade, giving presents in order to establish a trading relationship. But with regard to treaties, Europeans tended to see them as a one-point-in-time transaction, whereas indigenous parties saw them as an expression of an ongoing relationship that needed to be continually reaffirmed. For quite some time, Europeans did not seek to alter indigenous laws as they ap- plied within their societies. However, after the Indian Act was enacted in 1876, the Canadian state became more aggressive about suppressing indigenous law. Resi- dential schools further undermined indig- enous laws by depriving new generations of their native languages and exposure to the oral traditions of their forebears. Until recently, it may have appeared that indigenous law had almost disappeared within the Canadian legal order. In a few areas, such as customary adoption, Cana- dian law recognized indigenous law: Such adoptions generally produce the same legal effects as formal adoptions. Canada has tried to involve native elders more in the sentencing process for individuals of in- digenous heritage, thus, in effect, deferring to indigenous law in this area. Yet, just as indigenous arts and culture are undergoing a renaissance, there are signs of a revival of indigenous law. Mod- ern treaties, such as those with the Nisga'a in British Columbia, create new institu- tions of indigenous governance with the power to create their own constitutions and pass their own laws. These laws will undoubtedly be shaped by the fact of co- existence with Europeans over previous centuries, but indigenous law always had the capacity to adapt to new situations, through a process of discussion and con- sensus among those affected. My prediction is that, by 2067, indige- nous law will be a much more high-profile part of the Canadian legal order than it is today, with impacts beyond the indig- enous population. After a long period of colonial dominance, the Euro-Canadian legal order may find that there are valuable lessons to be learned from indigenous le- gal traditions. LT uPhilip Girard is a legal historian and pro- fessor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is pgirard@osgoode.yorku.ca. Children hurt in divorce process BY BRIAN LUDMER I n litigation where custody or access to children is contested, courts are directed to canvass the views of the affected children, at least to the extent that the views can be ascertained. There are various means by which the voice of the child can be solicited. Each way has its relative advantages and dis- advantages, but there are good reasons to proceed cau- tiously in this regard. The process of asking children their opinions cre- ates the risk of triangulating the child further into an inter-parental dispute, and it can potentially create or contribute to an alliance of one parent and child against the other parent or against other children. Many studies and publications, including a study of 1,000 families published by the Family Law Section of the American Bar Association, suggest that parental lobbying and manipulation of children in custody dis- putes is a very common occurrence. Canadian provinces, through their legislation and jurisprudence and procedural practices, have recog- nized many ways of enabling the voice of the child to be taken into account by the courts. This can include a judicial interview, a custody/access forensic assessment, indirect testimony through a chil- dren's therapist, parents or others or through counsel for the child. However, in my opinion, the potentially most dam- aging option of all the methods is appointing counsel for a child. Since the Strobridge decision of the Ontario Court of Appeal in 1994, it is clear that the role of counsel for a child is to be an advocate and not a guardian acting in the child's best interests. This creates a difficult dynam- ic where children are elevated almost to the position of parties in their parents' litigation, often becoming over- empowered and triangulated into their parents' dis- putes, with the result that the child's relationship with one parent is damaged. It is generally understood that counsel for a child cannot advance evidence based on his or her own in- terviews of the child. Further, because of the advocate role, the file of children's counsel is not available to be reviewed by the parents. Interviewing skills and prac- tices of children's lawyers can, therefore, not be tested. Developing understanding of neuroscience suggests a substantial concern about the suggestibility of chil- dren, resulting from the parents' actions or even by the very existence of counsel representing them in their parents' dispute. Through the appointment of counsel, a process meant to support a balanced inquiry into children's needs and the ability and willingness of parents to meet those needs often gets diverted. Instead, it turns into a focus on the child's wants, as opposed to the child's needs. While a child's counsel may sometimes be assisted by the allocation of a social worker from a panel of eli- gible referrals, there is no ability to interview the prac- titioner for experience, potential biases and their ap- proaches to the services to be provided. The file of the social worker assist is generally not provided prior to the children's lawyer taking a trial position in the case and often only in the couple of weeks leading up to the trial itself. Disclosure from various third-party sources is often only provided to the assisting clinician and not to the parties themselves until close to trial. While there are numerous published standards and expert texts (such as from psychiatry, psychology and social work regulators and organizations such as AFCC) about how to conduct forensic child custody/ access assessments, there are no such standards gener- ally practiced and consistently applied for the children's counsel role. In many situations, parents are told either by chil- dren's counsel or by the clinical assist that records, documents and other materials they provide will not be read and that a list of collateral sources to be contacted for interviews will not be used or used only in part. The experience of many parents in dealing with counsel for their own children who may be taking either an unknown position or position adverse in interest to them is generally quite upsetting and unfa- vourable. These parents tell me they don't feel heard by this process. In cases where children are showing unhealthy lev- els of alignment or enmeshment with one parent or re- jection of the other parent, the practice of vetting the independence of children's views and preferences is again without consistent standards and training. Chil- dren's counsel may not have a robust and up-to-date understanding of the extent of children's suggestibility and risk of manipulation in the course of a contested custody dispute. It is incumbent upon children's coun- sel to express to the court whether, in their view, the children's statements are reliable. However, practices in this regard lack consistency. In the more extreme cases of family dysfunction, issues arise as to whether counsel can actually assess whether the child has sufficient capacity to instruct counsel on issues involving the child's parents. A child can be competent in many domains but not competent to give independent instructions to counsel on issues involving the parents' litigation. A child's strong preference for one parent may ac- tually be a function of an unhealthy enmeshment or parentification (role-reversal) relationship, rather than a healthy relationship. Psychologists and psychiatrists would generally be much more cognizant of this dy- namic than an attorney might be. The appointment of counsel for children and giving children a seat at the table of their own parents' divorce triangulates them as opposed to insulating them from the effect of divorce. There are better methods to de- termine children's needs and an understanding of their parents' ability and willingness to meet those needs. LT uBrian Ludmer is a family law and business law practi- tioner in Toronto. u SPEAKER'S CORNER That's History Philip Girard

• Cover