15 December 2014

Important Legislation About Matrimonial Property on Reserves Coming Into Effect

The Family Homes on Reserves and Matrimonial Interests or Rights Act, a fairly new piece of federal legislation, allows First Nations to make rules about homes on First Nations lands and attempts to address a problem that's festered for almost 150 years. Sections 91 and 92 of the Constitution Act, 1867 divides the powers involved in running a country between the federal and provincial governments and, among other things, gives the federal government exclusive authority over "Indians, and Lands reserved for the Indians" and the provincial governments exclusive authority over "Property and Civil Rights in the Province," thereby allowing the provinces to make all the rules they wish about family law and the division of property between spouses but making those rules ineffective on First Nations lands.

The Family Homes on Reserves Act became law on 16 June 2013, with the first bits coming into force on 16 December 2013 and a huge swack, the remainder of the act, coming into force on 16 December 2014. The act applies only to the First Nations that are "bands" as defined by the Indian Act.

Although the act doesn't affect the underlying title to First Nations lands, which continues to be held by the Queen in most of Canada, it does allow First Nations governments to establish laws about how family homes on reserve lands will be used and occupied when a relationship between married or unmarried spouses has broken down. Here's what s. 4 of the act says:
The purpose of this Act is to provide for the enactment of First Nation laws and the establishment of provisional rules and procedures that apply during a conjugal relationship, when that relationship breaks down or on the death of a spouse or common-law partner, respecting the use, occupation and possession of family homes on First Nation reserves and the division of the value of any interests or rights held by spouses or common-law partners in or to structures and lands on those reserves.
(I don't know why federal legislation must be written in such clunky, hard-to-parse language, but there it is.) For First Nations that are listed in the schedule to the First Nations Land Management Act and have the right to manage their lands under a self-government agreement with Canada, the act also provides a lengthy set of provisional rules that apply when the laws the act entitles them to make are not in effect.

Here are the important parts of the act. Sections 1 to 11 and 53 came into force in 2013, sections 12 to 52 come into force tomorrow.
  • Sections 7, 8 and 9: First Nations governments can make laws about the use, occupation and possession of family homes located on reserve lands during and after the breakdown of a "conjugal relationship." The laws must be put to a plebiscite, are approved with the support of a majority of the members of the First Nation.
  • Section 12: The provisional rules about the use, occupation and possession of family homes set out in sections 13 to 52 apply to First Nations with rights of self-government and are listed in the First Nations Land Management Act and do not have laws about family homes that are in effect.
  • Section 13: Each spouse or partner may occupy the family home during their relationship, whether the person is a First Nation member or a status Indian or not. However, the 
  • Section 15: A spouse or partner with an interest in or right to the family home, must not sell it or use it as collateral for a lone without the consent of the other person.
  • Sections 16 and 17: A spouse or partner can apply for a temporary exclusive occupancy order, including an order for the removal of a person's belongs from the home and an order that a person not go near the home, without notice to the other person if family violence has occurred and order should be made right away. If the judge making the order is a provincially-appointed judge, the judge must send the order and all supporting materials to a judge with the power to make orders under the Divorce Act for a review of the order.
  • Section 18: Either spouse or parter can apply to change an exclusive occupancy order.
  • Sections 20 and 21: A spouse or partner can apply for a permanent exclusive occupancy order, and the judge hearing the application must consider, among other things, the best interests of the children living in the home, any agreement between the parties, the collective interests of the First Nations members in their reserve lands, the length of time that the person has lived on the reserve and the availability of other accommodation, family violence. The order can include a term requiring the person with exclusive occupancy to keep the home in good condition or requiring either party to pay for the costs of the home. The order can be made to survive the death of the spouse or partner with the interest in or right to the family home.
  • Section 23: Exclusive occupancy orders do not change who holds an interest in or right to the family home.
  • Sections 28 and 29: When a conjugal relationship breaks down, each party is entitled to an amount equal to one-half of the value of the family home, plus extra rights to the other person's interests in property located on First Nations lands that change depending on whether the party is a member of the First Nation. A court order a different sharing of property interests depending on factors like the length of the relationship, the terms of an agreement between the parties and the debts incurred by each party. 
  • Section 30: Applications must be made within 3 years of the date the parties ceased to cohabit. 
  • Sections 30 and 31:The court can order that an amount payable under ss. 28 or 29 be paid as a lump-sum, be paid in instalments, be set-off by another amount or be satisfied by the transfer of a property interest or right. The court's ability to transfer property interests or rights is subject to a number of factors relating to the the status of the First Nation, the applicant's status as a member of the First Nation and the circumstances of the parties' relationship.
  • Sections 34 to 40: These sections establish rules about estates and the rights of person upon the death of their spouses and partners.
  • Section 43: A court with jurisdiction under the Divorce Act has jurisdiction to deal with applications under the Family Homes on Reserves Act.
  • Section 48: The court may determine whether a person has a right in a home or land situated on First Nations lands on the application of a spouse or partner, a survivor, an executor of a will, or the counsel of the First Nation on whose lands the home or land is located.
Remember that the provisional rules do not apply to all First Nations, and that both the provisional rules and the First Nations laws on family homes apply in place of the matrimonial property provisions of any provincial legislation.