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Matrimonial real property includes land held by one or both spouses or common-law partners and used by the family, as well as houses, sheds and any other property that is securely attached to the land.
Matrimonial real property does not include other kinds of family property like vehicles or furniture. This type of family property is covered on and off reserves by provincial and territorial family law.
Matrimonial Real Property Protections
Off reserves, provincial and territorial laws set out the matrimonial real property rights of spouses or common-law partners and provide for a number of remedies available during relationships, on relationship breakdown, and on death of a spouse or common-law partner.
The Supreme Court of Canada confirmed in Derrickson v. Derrickson,  2 S.C.R 285, that when a conjugal relationship breaks down, courts cannot apply provincial/territorial family law if doing so would alter individual interests in matrimonial real property located on reserves, because reserve lands fall under federal jurisdiction. This has resulted in a legislative gap on reserves.
As a result, many of the legal rights and remedies relating to matrimonial real property available off reserves in the context of family violence or relationship breakdown are not available to individuals living on reserves.
Currently, this legislative gap can only be addressed on reserves under either the First Nations Land Management Act, in which signatory First Nations develop codes to manage reserve lands, including matrimonial real property rules and procedures, or pursuant to negotiated self-government agreements involving reserve land management. Despite the progress that has been made under the First Nations Land Management Act and self-government agreements, the majority of First Nations remain without adequate protections.
In an ongoing lawsuit (Native Women's Association of Canada v. Canada), the Native Women's Association of Canada alleges that the legislative gap places Canada in violation of equality rights guaranteed by the Canadian Charter of Rights and Freedoms. Moreover, Canada has been cited by various domestic and international organizations and committees for its failure to provide protections on reserves in cases of relationship breakdown.
A significant amount of research has been done on this issue, in addition to studies and reports by the Standing Senate Committee on Human Rights, the Standing Committee on Aboriginal Affairs and Northern Development, and the Standing Committee on the Status of Women (the Committees).
The Committees recommended in 2005 and 2006 that Aboriginal Affairs and Northern Development Canada (AANDC), then known as Indian and Northern Affairs Canada work with and provide funding to the Native Women's Association of Canada and the Assembly of First Nations; consult with Aboriginal people and provincial/territorial governments to find a legislative solution to the issue; draft federal legislation to address on-reserve matrimonial real property in the short-term; and develop substantive federal legislation for First Nations which have not created their own laws within the timeframe set out in the interim federal legislation.
Further to recommendations from the Committees, the government initiated a consultation process starting in 2005 and ending in 2007 which included a planning phase, a consultation phase (103 sessions in 76 sites) and a consensus-building phase. A subsequent engagement phase on the draft legislative proposal resulted in significant improvements to the bill.
History of Legislation
Legislation to address the issue of matrimonial real property on reserves has been before Parliament since March 2008, when the proposed Act was first introduced as Bill C-47. The bill died on the Order Paper at dissolution, and was subsequently reintroduced as Bill C-8 in February 2009, but died on the Order Paper at prorogation on December 30, 2009.
On March 31, 2010, the proposed Act was introduced in the Senate as Bill S-4 and subsequently referred to the Standing Senate Committee on Human Rights. In response to the testimony of more than 30 witnesses and comments from other stakeholders the Committee adopted 12 amendments to the bill, and the Senate passed Bill S-4, as amended.
Bill S-4 received first reading in the House of Commons on September 22, 2010, and was awaiting debate at second reading when it died on the Order Paper on March 26, 2011, at dissolution.
On September 28, 2011, the proposed Act was introduced in the Senate as Bill S-2. Bill S-2 included 3 major changes from the previous bill: the removal of the verification process, a lower ratification threshold and the addition of a 12-month transition period. Bill S-2 was referred to the Standing Senate Committee on Human Rights, which heard from 16 witnesses. The Committee adopted 2 amendments to Bill S-2. The Senate passed the bill, as amended, on December 1, 2011.
Bill S-2 received first reading in the House of Commons on December 8, 2011, and is currently awaiting debate at second reading.
The Proposed Act
The objective of the proposed Act is to provide basic rights and protections to individuals on reserves regarding the family home and other matrimonial interests or rights during a relationship, in the event of a relationship breakdown, and on the death of a spouse or common-law partner. The preamble to the Act sets out some of the principles that underlie the application of the rights and protections contained in the legislation.
The proposed Act sets out provisional federal rules as well as provisions for the enactment of First Nation laws. The federal rules will be a provisional measure, but will account for the reality that some First Nations may not develop their own laws in this area.
First Nation individuals and other individuals residing on reserve lands will be covered by the provisional federal rules, once in force, until a First Nation enacts its own laws. However, for the provisional federal rules to apply to individuals in an on-reserve conjugal relationship at least one of them has to be a First Nation member or an Indian.
The proposed Act strikes a balance between individual and collective rights; respects the inalienability of reserve lands; is enforceable; takes into account the best interests of the children; and will result in greater certainty for spouses or common-law partners on reserves concerning the family home and other matrimonial interests or rights.
Not all off-reserve matrimonial real property remedies can be replicated on reserves. Given the collective nature of the reserve land regime, land on reserves cannot be owned outright, and the rights to possession differ between First Nation members and non-members. For greater accuracy, the proposed Act refers to "interests or rights regarding family homes on reserves and other matrimonial interests or rights," rather than "matrimonial real property" which, off reserves, refers to both land and structures. In other words, the proposed Act does not affect the title to reserve lands or change the status of collective reserve lands.
Changes to the Proposed Act
In addition to the Senate amendments to Bill S-4 changes were also made to the bill before it was introduced as Bill S-2. These changes encourage and assist First Nations in developing their own laws:
The verification process, including the role of the verification officer, has been removed. First Nations are still required to ensure voters are informed of the First Nation's proposed law and when and where the vote will take place;
The ratification threshold for First Nation matrimonial real property laws has been lowered to a single majority with a set participation rate of at least 25 per cent of the eligible voters. The lower threshold will help First Nations approve their own laws; and
A 12-month transition period before the federal provisional rules come into force has been included. The addition of a transition period recognizes that some First Nations are well advanced in developing their own laws and provides time to do so before the provisional federal rules take effect.
The Senate adopted two amendments to Bill S-2, affecting subclauses 17(8) and 18(2). These amendments remove the 90-day limit on rehearing or extending emergency protection orders provided under clause 16, leaving the length of time to judicial discretion.
Coming into Force of the Act
First Nations will have the power to enact their own laws once the proposed legislation comes into force. Twelve months after this date, the provisional federal rules will take effect.
The proposed Act is informed by years of studies, reports, information sessions and litigation on this subject. It is the result of a comprehensive consultation process that included discussions with First Nation organizations, individuals, the Ministerial Representative and provinces and territories.
The proposed Act, including the additional changes, demonstrates the federal government's commitment to ensure people living on reserves have similar matrimonial real property rights and protections as other Canadians.