ARCHIVED - Application of the Act

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Overview

The proposed Act consists of provisional federal rules combined with provisions for the enactment of First Nation laws. A specified period of 12 months has been set out in the bill to provide time for those First Nations that want to develop their own laws before the federal laws take effect. In reality this period of time will be greater than 12 months. The provisions setting the power for First Nations to enact their own laws will take effect on a date to be determined by the government after the bill receives Royal Assent. Twelve months after this date, the provisional federal rules will come into force. The 12-month transition period provides First Nation communities time to develop and approve their own laws before the provisional federal rules come into force.

The federal rules are designed as an interim measure that will fill the legislative gap on reserves until such time as First Nations develop their own laws. However, some First Nations may not choose to enact their own matrimonial real property law.

Provisional Federal Rules

The provisional federal rules will provide basic rights and protections to individuals on reserves during a relationship, in the event of a relationship breakdown, and on the death of a spouse or common-law partner. The provisional federal regime includes the following rights and protections:

1. Equal right to occupancy of the family home:

Provides spouses or common-law partners with an equal entitlement to occupancy of the family home until such time as they cease to be spouses or common-law partners.

2. Requirement of spousal consent:

Provides spouses or common-law partners with protection against the disposition or encumbrance of the family home without their consent.

3. Emergency protection order:

Allows a court to order that a spouse or common-law partner be excluded from the family home on an urgent basis (in situations of family violence) for up to 90 days.

4. Exclusive occupation order:

Enables courts to provide short to long term occupancy of the family home to the exclusion of one of the spouses or common-law partners. The duration of this order could range from a determined number of days to a longer period, such as until dependent children reach the age of majority.

5. Entitlement of each member spouse or common-law partner to an equal division of the value of the family home and any other matrimonial interests or rights:

Ensures that the proven value of a couple's matrimonial interests or rights in or to the family home and other structures and lands on the reserve are shared equally on relationship breakdown.

6. Order for the transfer of matrimonial interests or rights between member spouses or common-law partners:

Allows a court to transfer, in some circumstances, the matrimonial interests or rights between member spouses or common-law partners together with, or instead of, financial compensation.

7. Entitlement of surviving spouses or common-law partners:

Ensures that when a spouse or common-law partner dies, the surviving spouse or common-law partner may remain in the home for a specified period of time, and can apply, pursuant to the federal rules, for half of the value of the matrimonial interests or rights as an alternative to inheriting the matrimonial real property from the deceased's estate.

8. Enforcement of agreements:

Allows a court to enforce a free and informed written agreement made by spouses or common law partners that sets out the amount to which each is entitled and how to settle the amount.

First Nation Jurisdiction

The proposed Act will provide for the enactment of First Nation laws with respect to the use, occupation and possession of the family home and division of value of the family home and other matrimonial interests or rights on reserves.

Ratification

The content of First Nation matrimonial real property laws will be determined between the First Nation citizens and their government.

The proposed Act will require a community ratification process when First Nations develop their own laws. This ratification process will encourage broad community involvement.

Representations to the Court

It is recognized that there are a range of values and practices among First Nations concerning individual interests in reserve lands. Since traditional practices and approaches vary amongst First Nations, solutions to this issue should take into account and, where appropriate, accommodate a diversity of traditions and customs.

For this reason, the proposed Act provides for First Nations to be notified in regard to any proceedings under this Act, except in the case of emergency protection and confidentiality orders. Where a community's collective interests in lands are engaged, the First Nation may make representations to the courts about the cultural, social and legal context relevant to the proceedings.

Enforcement of Court Orders

The proposed Act includes provisions for the enactment of First Nation laws respecting enforcement of court orders. The proposed Act also provides that a First Nation council can, on application from a non-member spouse or common law partner, enforce on the reserve, a court order made under this Act. If the council does not enforce the order within a reasonable period of time, a court may require payment of the specified amount into the court directly.

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