File now with the courts on paternity

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PRO BONO

Dear Tuma:

The father of my child is contesting paternity despite having done two DNA tests, which concluded that he is 99.97 per cent likely the father. The maintenance he pays is $220 per month and this is only for the school year. There is no court order in place. He is very wealthy and recently retired. I cannot afford a lawyer and do not qualify for legal aid. My son is 17 and is in Grade 12. What can I do?

Tired of paying all the bills

Dear Tired:

The first thing you should do is to contact a family lawyer. You may be able to recoup the cost by having the court order that he pays for your legal costs in trying to obtain child support. If he is still denying that your son is his, provide the court with the results of the DNA testing and ask for a finding of paternity. This is important for the future in the event your son is left out of his father's will.

If you cannot afford a lawyer, you can see if your local law school has a student clinic that can help. You can also go to the family court to ask for help in starting an action for child support. Many of the family courts have staff that can help you or refer you to a program that can help, such as family mediation. Most provinces have a Native court-worker program and they may be able to help. If you are on social assistance, your social assistance office can help you with obtaining child support.

Upon starting the action, the payor will be required to bring proof of his income to court (tax returns, pay stubs, pension stubs, investment income, etc). This income will be used to compute the amount of child support she or he will have to pay according to the federal Child Support Guidelines (or the provincial ones if your province has a set). If the income is tax exempt, such as a status Indian working on a reserve, the court may impute a higher amount because the child support tables are based on taxable income.

Each province has a maintenance enforcement program that the payor will be enrolled in when the program receives the order from the court. The payor will then pay to the program each month and the program will send you a cheque each month. You will not have to chase him or her again. If the payor does not pay, there are consequences such as not being able to renew his driver's licence, garnishment of pensions, wages, etc.

Finally, do not wait to do this. The payor will no longer be responsible for child support once your son reaches 19 unless he is in university; then the payor will be responsible until your son turns 24.

Dear Tuma:

My brother is married to a non-Native and his children are "status Indians." But someone told me that his kids would be status until they turn 18 or 21. Will my niece lose her status if she marries a non-Native? What about his sons? What if they marry Natives? Are they considered Bill C-31?

Worried Auntie

Dear Worried:

The legal definition of an Indian is someone who is registered or eligible to be registered under section 6(1) or 6(2) of the Indian Act. Your nieces and nephews are probably registered as status Indians under section 6(2) of the Indian Act. They will not lose their status once they reach the age of majority, but what may be the case is that your band has a membership code.

Under your band's membership code, 6(1)s will be registered as status Indians and be given band membership; 6(2)s will be registered as status Indians, but not be given band membership.

If a 6(2) marries a non-Native, that person does not lose their "Indian status," but may not be able to have their children registered as status Indians. Thus, your grandnieces or grandnephews will not be considered status Indians nor will they have band membership.

If a 6(2) marries a 6(1), then the children may be eligible to be registered under 6(2), but not be given band membership. If a 6(2) marries another 6(2), then the children may not be eligible for Indian status or band membership.

Also, if your niece has a child, he will have to name the father and if she doesn't, the father is presumed to be white resulting in the child being registered as 6(2). The registration application has to be posted and anyone can contest the registration of a child to a band. Can you imagine someone saying, 'so and so is not the father. It is so and so.' The fur will really fly then.

Confused yet? I will not even try to explain what may happen should your niece or nephew marry someone from another band and that band has a different membership code than yours, let alone marry a tribal member from a tribe in the United States.

This column is not intended to provide legal advice, but rather highlight situations where you should consult with a lawyer. Tuma Young is currently studing for a Ph.D in law at the University of British Columbia, and questions should be sent to puoin@telus.net.