Information Sheet: Coming Into Force of the Family Homes on Reserves and Matrimonial Interests or Rights Act
Matrimonial Real Property
Matrimonial real property refers to the immovable assets (in other words things that cannot be moved) owned by one or both spouses, such as a house, land and structures used by the family. This includes the family home where both spouses or common-law partners live during a marriage or common-law relationship.
Off reserve, people have rights and protections regarding the family home that are provided to them under provincial or territorial laws. However, provincial/territorial matrimonial real property laws do not apply on reserves, leaving individuals without rights and protections regarding their family home.
The Family Homes on Reserves and Matrimonial Interests or Rights Act, (the Act) received Royal Assent on June 19, 2013 and provides individuals with rights and protections regarding matrimonial real property which are referred to (in the Act) as the family home and matrimonial interests or rights on reserve. Section 54, containing transition provisions, and section 55, the three-year exemption for First Nations without land codes in place on the schedule of the First Nations Land Management Act before June 19, 2013, came into force at Royal Assent. The first part of the Act, sections 1-11 and 53, came into force December 16, 2013. There is a 12-month transition period before the remaining sections, 12-52, of the Act come into force on December 16, 2014.
The Act applies to spouses or common-law partners living on reserve lands if at least one of them is a First Nation member or an Indian.
Protections and Rights in the Family Homes on Reserves and Matrimonial Interests and Rights Act
The Act provides matrimonial real property protections and rights for individuals and families on reserves in two ways:
- Since December 16, 2013, First Nation communities can enact their own community-specific matrimonial real property laws.
- Provisional federal rules, in force December 16, 2014, will provide individuals living on reserves with protections and rights until a First Nation community establishes its own matrimonial real property laws under the Act or other federal legislation.
First Nation Matrimonial Real Property Law-Making in the Act
The mechanism for First Nations to establish their own matrimonial real property laws is set out in sections 7 - 11 of the Act. Agreement on the content of a law would take place between First Nation members and their First Nation governments. All members 18 years and older, living on and off reserve, must have an opportunity to vote on the First Nation's proposed matrimonial real property laws. Such laws would still be subject to the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act, as applicable.
If a First Nation chooses to enact its matrimonial real property law before December 16, 2014, the provisional federal rules will not apply to the community.
The steps for a First Nation to enact their own matrimonial real property law under the Act are:
- Notify the Attorney General in their province that they intend to enact their own law;
- Take reasonable steps in accordance with the First Nation's practices to locate voters, both on and off reserve, and inform them of their right to vote, the means of exercising the right and the content of the proposed laws;
- Publish a notice of the date, time and place of the vote;
- Submit the law for community approval with a ratification threshold of a single majority with at least 25% of the eligible voters participating in the vote;
- Once the law is approved by the community, the council must notify the Minister of Aboriginal Affairs and Northern Development in writing of the result of the vote;
- Send a copy of the approved laws to the Minister of Aboriginal Affairs and Northern Development, the Centre of Excellence for Matrimonial Real Property being the organization designated by the Minister, and the Attorney General of any province in which the reserve of the First Nation is situated.
The Minister of Aboriginal Affairs and Northern Development or departmental officials do not review or approve First Nation laws that come into force under the Act. Approval of a First Nation law is determined by the community ratification or referendum process. The Minister is required to maintain and publish a list of those First Nations that do enact matrimonial real property laws pursuant to the legislation.
Provisional Federal Rules
There is a 12-month transition period ending December 16, 2014 when the provisional federal rules, sections 12 – 52, in the Act will apply. Unless First Nations establish their own matrimonial real property laws during the transition period, the provisional federal rules will apply to all First Nations with reserve land. Some exceptions are for First Nations under the First Nations Land Management Act or First Nations with a comprehensive self-government agreement including land management.
The federal rules are meant to be an interim measure to ensure that matrimonial real property protections are in place. If a First Nation enacts its own matrimonial real property law under the Act after the federal rules are in force, they will no longer apply to that First Nation.
The following are examples of the protections and rights contained in the provisional federal rules that would apply to you if your First Nation community has not enacted its own matrimonial real property law:
Emergency Protection Orders
- In cases of domestic violence, a victim can apply to the court to exclude their abusive partner from the family home.
- An application to a provincial court for an emergency protection order can be made by the victim or by someone else, such as a nurse or a social worker, on behalf of the victim, without the presence or participation of the abusive spouse or common-law partner.
- Both spouses or both common-law partners have the right to live in the family home during their relationship.
- A family home cannot be mortgaged or sold without the consent of both people in the relationship.
- If a marriage or common-law relationship breaks down, both spouses and common-law partners can apply to the court to have exclusive occupation of the family home. That means that a court can order a spouse or common-law partner to leave the family home for a period of time.
- On the death of a partner who held the interest in the family home, the surviving partner may automatically occupy the family home for a period of 180 days.
Division of On-Reserve Matrimonial Interests or Rights
- In the event of separation, divorce or death, both spouses and common-law partners are entitled to half the value of the family home and certain other matrimonial interests or rights connected to the relationship, such as right of occupation of the home, a permit, or a lease for the home.
- A court can enforce written agreements that set out the amounts that each spouse or common-law partner is entitled to receive in the event of separation or divorce.
First Nation Council Involvement
It is important to note that the provisional federal rules provide that:
- First Nation councils are to be notified regarding any proceedings under the Act, except in the case of confidentiality orders and initial applications for emergency protection orders.
- First Nations can go to the courts to share the cultural, social and legal context relevant to the application or process, and to present views about whether or not the order should be made, e.g., the impacts on the First Nation community of potential orders involving non-members.
- Reserve lands continue to be set aside for the use and benefit of First Nation members.
What this Act Does Not Do
The Act does not allow non-Indians or non-members to gain permanent rights to reserve land. Non-status Indians or non-members may only be granted temporary rights to occupy the family home.
It does not give non-members the ability to sell or make money from the value of the reserve land or benefit from the sale of the reserve land. Spouses or common-law partners who contributed to acquiring or improving the family home can apply under the provisional federal rules to the court for compensation for those investments.
The Act does not allow the Minister of Aboriginal Affairs and Northern Development to have any role in reviewing, cancelling, disallowing or altering First Nation laws. The development of a matrimonial real property law is between a First Nation government and its community members alone.
Implementation of the Act
The Government of Canada is currently supporting the implementation of the legislation through the following:
Centre of Excellence for Matrimonial Real Property
A Centre of Excellence for Matrimonial Real Property, hosted by the National Aboriginal Lands Managers Association, is available to assist First Nations with developing their own matrimonial real property laws and provide information on the provisions in the Act for First Nations, individuals and organizations.
Centre of Excellence for Matrimonial Real Property
c/o National Aboriginal Lands Managers Association
1024 Mississauga Street
Curve Lake, ON K0L 1R0
Telephone: Toll-Free: 1-855-657-9992 or 705-657-9992
Website: Centre of Excellence for Matrimonial Real Property
Training and Education
Training and educational materials will be made available to police officers, superior court judges and legal practitioners to help familiarize them with the new matrimonial real property Act and social context unique to reserves.
For more information contact about the Act contact Aboriginal Affairs and Northern Development Canada at: Tel.: (toll-free) 1-800-567-9604 or E-mail: firstname.lastname@example.org.
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