The Family Homes on Reserves or Matrimonial Interests or Rights Act seeks 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, or upon the death of a spouse or common-law partner. The legislation sets out provisions for the enactment of First Nation laws respecting on-reserve matrimonial real property, as well as provisional federal rules. The legislative gap was an outstanding issue for more than 25 years since the 1986 Supreme Court of Canada's rulings in Paul v. Paul and Derrickson v. Derrickson that provincial matrimonial laws affecting real property do not apply on reserves.
Under the legislation, First Nations can either choose to follow the federal rules or they can choose to enact their own laws related to matrimonial real property rights and interests — laws they can design to meet their particular needs and respect their particular customs.
The mechanism for First Nations to establish their own matrimonial real property laws is set out in sections 7 - 11 of the Act. These provisions came into force by Order in Council on December 16, 2013.
Between September 2006 and January 2007, Aboriginal Affairs and Northern Development Canada, the Assembly of First Nations and the Native Women's Association of Canada worked in partnership to conduct a national consultation process on the issue of matrimonial real property on reserves. Consultations included over 100 meetings in 76 locations across Canada.
The process was facilitated by Ministerial Representative, Wendy Grant John. Dialogue and engagement sessions were held with First Nation individuals and leaders, Aboriginal women's organizations, other interested organizations and representatives from the provinces and territories. AANDC's Ministerial Representative also held sessions with key stakeholders to help build consensus on solutions.
A final report by the Ministerial Representative includes findings from the consultations and recommendations for action. This report helped shape the legislation called the Family Homes on Reserves and Matrimonial Interests or Rights Act.
Consultations and engagement continued throughout the Parliamentary process, leading to amendments to the legislation which were incorporated and retained in the last iteration. The Standing Senate Committee on Human Rights heard from more than 16 witnesses during study of the legislation from November 21, 2011 to November 28, 2011, and made two amendments to the bill. The legislation was passed, as amended, by the Senate on December 1, 2011. From April 23, 2013 to May 21, 2013, the legislation was studied by the Standing Committee on the Status of Women, which heard from more than 35 witnesses, and later passed by the House of Commons on June 11, 2013. On June 19, 2013, the Family Homes on Reserves and Matrimonial Interests or Rights Act received Royal Assent.
Consultations were completed and the legislation received Royal Assent on June 19, 2013. The first part of the Act - the First Nation law-making mechanism - came into force by Order in Council on December 16, 2013. The second part of the Act will come into force twelve months later, on December 16, 2014. It provides for provisional federal rules to fill the legislative gap in the absence of a First Nation's own laws.