Information on the Proposed Family Homes on Reserves and Matrimonial Interests or Rights Act
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What is Matrimonial Real Property?
Matrimonial real property refers mainly to the family home where both spouses or common-law partners live during a marriage or common-law relationship. Generally speaking, provincial and territorial laws protect the matrimonial real property rights and interests of both spouses during a relationship, or in the event of separation, divorce or death. Under these laws, for instance, both spouses must share the money if their family home is sold. These laws also permit a judge to order a spouse to temporarily leave the family home, particularly in cases of domestic violence and physical abuse.
An Intolerable and Inexcusable Situation
However, courts cannot apply provincial or territorial family law to deal with the family home or other real property on reserves held by one or both partners. Also, the Indian Act is silent on the issue. Until on-reserve matrimonial real property laws are in place, spouses or common-law partners living on reserves will face an intolerable and inexcusable situation: in the event of separation, divorce or death, the law will not fully protect all of their matrimonial real property rights and interests. This means that:
- A spouse can sell an on-reserve family home without the consent of the other spouse and keep all of the money.
- A spouse who holds the interest in the family home can bar the other spouse from their on-reserve family home.
- In cases of domestic violence and physical abuse, a court cannot order the spouse to leave a family home situated on reserve, even on a temporary basis.
Unfortunately, for the rest of the families living on reserves, relationship breakdown or death could mean insecurity, financial difficulty or homelessness.
How Does the Legislation Address the Problem?
The legislation fills the legislative gap by providing rights and protections for individuals and families on reserves. It sets out provisions for the enactment of First Nation laws respecting on-reserve matrimonial real property, as well as provisional federal rules. The provisional federal rules provide families living on reserves with rights and protections that will apply unless or until a First Nation community establishes its own matrimonial real property law.
First Nations to Establish Matrimonial Real Property Laws
The legislation includes a mechanism for First Nations to establish their own matrimonial real property laws which could be applied by courts across Canada. The content and structure of a community-specific matrimonial real property law requires only an agreement between the members of a First Nation and the First Nation government. In other words, a First Nation must gain support for their proposed matrimonial real property law from members through a fair and democratic vote. All members of voting age, regardless of where they live, must have an opportunity to vote on the First Nation proposed law. At least 25 percent of the First Nation’s eligible voters must participate in the approval process, and of those voting, a majority must vote in favour of the proposed law for approval. Once the community has approved the law through this process, it will apply on the reserve lands of that First Nation and the federal provisional rules in the Family Homes on Reserves and Matrimonial Interests or Rights Act will not apply. Neither the Minister of Aboriginal Affairs and Northern Development nor the department will have any role in reviewing, cancelling, disallowing or altering the First Nation laws.
Provisional Federal Rules: Rights and Protections for Community Members
After this legislation comes into force, there is a twelve month transition period before the provisional federal rules in the Family Homes on Reserves and Matrimonial Interests or Rights Act will come into force. This provides time for First Nations to develop and enact their own laws before the federal rules come into force. Unless First Nations establish their own matrimonial real property laws during this time under this legislation, the federal provisional rules will apply, with the exception of First Nations under the First Nations Land Management Act, or First Nations with a comprehensive self-government agreement. The provisional federal rules, for example, contain:Emergency Protection Order
- In cases of domestic violence or abuse, a court can bar a spouse or common-law partner from the family home on an urgent basis.
- A court can grant a spouse or common-law partner exclusive occupation of the family home for a specific period of time.
- A family home cannot be sold without the consent of both spouses.
- Upon a death, the surviving spouse or common-law partner can continue living in the family home for up to 180 days.
Division of On-reserve Matrimonial Interests or Rights
- In the event of separation, divorce or death, each spouse or common-law partner must share equally in the value of the family home and any other matrimonial interests or rights. Non-members, however, are not entitled to the value of land or any appreciation of the land.
- A court may order the transfer of matrimonial interests and rights from one member spouse or common-law partner to the other member spouse along with, or instead of, financial compensation.
- A court can enforce written agreements that set out the amount that each spouse or common-law partner is entitled to receive.
What the Legislation Does Not Do
It does not allow non-Indians and non-members to gain permanent rights to reserve land. In other words, non-Indians and non-members may occupy the family home only temporarily.
It does not allow First Nation non-members to make money from the value of reserve land. In other words, non-members cannot sell the land or the family home or benefit from the increased value of the land.
It does not allow the Minister of Aboriginal Affairs and Northern Development or the department to have any role in reviewing, cancelling, disallowing or altering First Nation laws. In other words, the development of a matrimonial real property law is between a First Nation government and its community members alone.
Supports Envisioned from the Legislation
If the legislation is passed, more information will be made available on the tools and services for those impacted by the legislation. At the moment, planned supports include:
Centre of Excellence
- To be created within an existing national First Nation organization, the Centre of Excellence will support First Nations in the application of the legislation and in the development of their own on-reserve matrimonial real property laws.
Training and Education for Front-line Providers
- Police officers on reserves will be trained to properly enforce the legislation.
- Educational materials will be available to provincial superior court judges to promote informed judgements under the legislation.
- A public education and awareness campaign on the new legislation will be directed to stakeholders such as First Nation communities and individuals living on reserves so that they can better understand their rights and the protections available to them.
To keep up to date on the progress of the legislation and available supports, or for more information about matrimonial real property, please visit our website.
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