Backgrounder - Family Homes on Reserves and Matrimonial Interests or Rights Act

"It's an issue the government has tried to solve through legislation since 2008. Three separate bills were introduced, but died after Parliament was either prorogued or dissolved, until Bill S-2 was introduced in the Senate in 2011. It was passed into law on June 19, 2013."

For most Canadian individuals undergoing a breakdown of their marriage or common-law relationship, or on the death of a spouse or common-law partner, there is legal protection to ensure that the matrimonial real property assets are distributed equitably. Such was not the case for couples living on reserves governed by the Indian Act. For them, relationship breakdown or the death of a spouse or common-law partner has too often meant insecurity, financial difficulties or homelessness.

The reason: the Indian Act does not address the issue of matrimonial real property rights and as a result of the Supreme Court of Canada decision Derrickson v. Derrickson, elements of provincial/territorial laws relating to this issue cannot be applied on reserves. The result was a legislative gap was created that affected everyone living on reserves, particularly women and children.

The Family Homes on Reserves and Matrimonial Interests or Rights Act ensures that people living on reserves have similar protections and rights as other Canadians.

This Act was developed following a comprehensive consultation process which included collaboration with the Native Women’s Association of Canada and the Assembly of First Nations. The consultation process was overseen by a Ministerial Representative, Wendy Grant-John, who recommended a legislative solution.

After undertaking nationwide consultations and hearing from First Nation members, leaders, regional and national organizations, as well as the provinces and territories, the Ministerial Representative facilitated a consensus-building process. Some shared principles emerged as priorities, and formed the basis of the legislation. These included agreement on the urgent need to remedy this situation, the need to balance individual rights and the collective rights of First Nation communities, and the ability for First Nations to develop their own matrimonial real property laws.

Over the summer and early fall of 2007, the federal government shared a draft legislative proposal regarding on-reserve matrimonial real property and sought feedback from the Assembly of First Nations, the Native Women’s Association of Canada, the Ministerial Representative, the provinces and territories, and the First Nations Lands Advisory Board. All of those involved in the process were given opportunities to share their views and concerns. Their input resulted in significant improvements that were incorporated in this Act.

As a result, the legislation balances individual and collective rights, and includes a mechanism for First Nations to enact community-specific matrimonial real property laws, as well as substantive provisional federal rules for matrimonial real property protections and rights on reserves to be applied in the absence of a First Nation's own law.

The Family Homes on Reserves and Matrimonial Interests or Rights Act is the result of collaborative development over the past few years:

Twelve months after the First Nation law-making mechanism in the Act came into force, the provisional federal rules provided in the Act now apply to First Nations who have not enacted their own matrimonial real property laws under this legislation – with the exception of select First Nations under the First Nations Land Management Act or under comprehensive self-government agreements with land management. The twelve-month transition period gave First Nations time to develop and approve their own laws, if they chose, before the application of the federal rules apply. First Nations will still be able to develop and enact their own matrimonial real property laws at any time after the federal rules come into force.

Now in force, the federal rules fill the legislative gap on reserves where there are no First Nation laws in place and will apply until First Nations enact their own community-specific laws on matrimonial real property under the Act or other federal legislation.

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