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First Nation membership is important in the context of matrimonial real property interests or rights on reserves, because it typically carries with it the right to live in or hold an interest in or right to property on reserves. With very few exceptions, non-members cannot possess allotments of land or reside permanently on reserves.
The provisional federal rules of the proposed Family Homes on Reserves and Matrimonial Interests or Rights Act, in the absence of a First Nation law, will ensure spouses or common-law partners have access to rights and protections with respect to the on-reserve family home, provisions relating to reserve lands within the Indian Act prohibit the granting of a permanent interest in or right to reserve lands to non-members. As a result, it is important to ensure all spouses or common-law partners residing on reserves have access to related rights and remedies while respecting the collective nature and inalienability of reserve lands.
Protections for Non-Members
Subject to the Indian Act, non-members are unable to hold any interest or right to reserve lands: however, the proposed Act's provisional federal rules will enable courts to provide non-members with a range of compensatory remedies specific to the family home, and to the division of the value of any matrimonial interest or rights:
1. Equal right to occupancy of the family home:
Will provide spouses or common-law partners with an equal entitlement to occupancy of the family home during the conjugal relationship.
2. Requirement of spousal consent:
Will provide spouses or common-law partners who do not hold a right to the family home with protection against the disposition or encumbrance of that home without their written consent.
3. Temporary exclusive occupation:
Will enable courts to provide a spouse or common-law partner short to long-term occupancy of the family home to the exclusion of the other spouse or common-law partner. 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.
First Nations would have the opportunity to make representations to the courts respecting their cultural, social and legal traditions before temporary exclusive occupation orders are made.
4. Emergency protection order:
Will enable courts to order that a member or non-member spouse or common-law partner be provided exclusive occupation of the family home on an urgent basis and for a short duration. This type of order is used, for example, in situations of family violence.
5. Entitlement to share the value of the family home and any other matrimonial interests or rights:
Because non-member spouses or common-law partners cannot obtain a permanent matrimonial interest or right, orders for financial compensation are required to ensure matrimonial real property interests or rights are shared equally on the breakdown of a relationship. This remedy will enable courts to take into account proven debts or liabilities incurred by each spouse or common-law partner for the acquisition of or improvement to the home or other matrimonial real property interests. Improvements could range from a garage or a patio to the home itself.
6. Entitlement of a surviving spouse or common-law partner:
As an alternative to the survivor accepting to inherit the matrimonial real property from the deceased's estate, the proposed Act provides for the right to an equal division of the value of matrimonial real property interests or rights regardless of whether a spouse or common-law partner dies with a will.
The proposed Act will also ensure that when a spouse or common-law partner dies, the surviving non-member spouse or common-law partner may remain in the home for 180 days. It will also enable courts to provide a surviving non-member spouse or common-law partner with exclusive occupation as well as reasonable access to the family home for a specified period of time. The duration of this order could vary, in consideration of, among other things, the medical condition of the survivor and whether the survivor is a caregiver.
First Nations would have the opportunity to make representations to the courts respecting their cultural, social and legal traditions before exclusive occupation orders are made.
7. Enforcement of Agreements:
Will allow a court to enforce a written agreement made by spouses or common-law partners after they ceased to cohabit, that sets out the amount to which each is entitled and how to settle the amount.
Once in force, the provisional federal rules of the proposed Act will fill the legislative gap respecting interests or rights
to the family home on reserves or other matrimonial real property interests or rights for both First Nation members and
non-members, while respecting the principle of non-alienation of reserve lands.