Scenarios: Matrimonial Real Property on Reserves
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A woman contacted Aboriginal Affairs and Northern Development Canada with concerns about her elderly mother. The mother, recently widowed, is being evicted from her home, after living in the community almost her entire life. She lived in the home on the reserve with her husband and they were foster parents to over 100 children in their community. The woman believes that her mother should be able to stay in their family home, at least until she can figure out where to go, without fear of being forced to leave her home. Unfortunately, departmental officials had to tell this woman that without legislation to fill the gap in matrimonial real property law on reserves, the courts are not able to alter rights to possess or occupy the family home, and she can be forced to leave the home.
A non-member father living on a reserve is dealing with the death of his wife and caring for their young children. In his time of grief, he is also looking for a new place to live because he has been told by the First Nation that he cannot stay in their family home because the right of possession of the home was held by his wife. Although he has care of the children who are members and have always lived on the reserve, this father may have no choice but to leave the family home. If the provisional federal rules in the proposed legislation were in place, he would have a minimum of 180 days to stay in the home while he searched for a new home and developed a plan. He would also be able to apply for exclusive occupation of the family home for a fixed period which could allow him some time to keep his children in their school and maintain a close connection to their community.
A mother and her children are homeless in the city after living for 15 years in their First Nation community. Before leaving for the city they had endured ongoing abuse by the father and husband. Because he is the only one who holds the right to the family home, they are now living in a shelter miles away from their friends, family and support system, leaving behind a comfortable home, prosperous business, clothing and toys. Without access to applications for emergency protection orders or orders for temporary exclusive occupation of the family home, this woman was not able to protect herself or her children while remaining in the community. With the provisional federal rules of the proposed legislation, she could make either or both of those types of application order to stay in the home, while she determines the next steps in continuing to keeping her family safe, without having to uproot her children.
A woman lived in a common-law relationship in her First Nation community for 18 years and is now separating. She contributed to building the family home and made payments on the housing loan, but her name is not on the Certificate of Possession. Upon separation she was asked to leave the home she helped build for 18 years. Under the provisional federal rules of the proposed legislation, she would be entitled to half of the value of the interest in the family home.
After five years of marriage, a couple began experiencing problems and has decided to separate. Both of them want to stay in the family home they built together in the community. The wife feels she is more entitled to remain in the home as she has lived in the community all her life while the husband only returned to the community when they married. Two years into their marriage the husband’s grandmother and his niece, whom the grandmother was raising in the community, came to live with the couple as the grandmother was finding it harder to manage on her own. The husband is the primary caregiver, as the wife’s job involves frequent travel. Should the couple not be able to resolve the issue on their own, the federal provisional rules in the proposed legislation would allow each of them to apply for exclusive occupation of the family home. When deciding on the order, the judge would consider, among other factors, the period of time each individual has lived on the reserve, the best interest of any child and the interests of any elderly person or person with a disability who habitually resides in the family home.
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