July 25, 2014
On June 19, 2013, the Family Homes on Reserves and Matrimonial Interests or Rights Act (the “Act”) received royal assent, and became law. Prior to the Act, courts could not make orders at all about the possession or sale of a family home (or any other on-reserve real property interests), and division of the proceeds when required to implement equalization of family property if it was located on a reserve, since this was governed exclusively by the Indian Act reserve lands provisions.
The communal nature of aboriginal title results in a separation of the concepts of ownership and rights to possession regarding property on First Nations. Constitutionally, provincial family law provisions cannot affect rights on the First Nations property. This has created great hardship when families split apart. Every breakup is tough on the people; no need to make it worse.
The Act has been developed to address the gap in legislation regarding matrimonial rights or interests for real property on reserve lands. First Nations have the option of developing their own laws as contemplated by the Act, and it will be important when dealing with on-reserve matrimonial rights or interests to know whether or not the First Nation has their own laws in place or whether the provisional rules will then be applied.
The Act tries to fill these gaps by empowering First Nations to make their own laws about such matters.
The Act has two parts. The first part, which is currently in force, gives First Nations the power to make their own laws in relation to certain family law matters, including the possession of on reserve family homes on the break-up of a relationship, The Act provides for a transition period to provide time for First Nations communities to draft and enact their own laws before the provisional rules come into effect on December 16, 2014.
The second part brings into force provisional federal rules to fill the gap until the First Nations laws have been completed. First Nations, however, are not limited to the transition period, and may draft and enact their own community-specific laws at any time now that the first part of the Act is in force. Provisional rules will only apply until a First Nation has enacted its own rules regarding matrimonial real property.
The Act applies to legally married spouses or common law partners, but only if at least one of them is a First Nation member or Indian.
As previously mentioned, the provisional rules will come into effect on December 16, 2014. These rules implement an approximation of family law as it applies to off-reserve to reserve property. There are three terms that are covered by these provisional rules:
- Emergency Protection Orders – a judge may make an emergency order for protection under sections 16-19 of the Act. The judge has wide discretion to order provisions granting protections and exclusive occupation of a matrimonial home.
- Occupation – sections 20-21 of the Act provide for the powers of the Court to order, on an application by a spouse or common-law partner, whether or not that person is a First Nation member or an Indian to determine whether the application be granted exclusive occupation of the family home and reasonable access to that home. There are specific considerations and conditions to be contemplated on determining exclusive occupation.
- Possession – sections 28-33 of the Act deal with the division of value of the matrimonial interests or rights. Where both spouses/common-law partners are First Nations members, upon the breakdown of the relationship, each party is entitled to ½ of the value of the family home. A spouse or common-law partner must make an application within 3 years following separation to divide the value of the matrimonial rights or interests.
One significant difference between the provisional federal rules and general off-reserve family law is that equalization of family property applies to common-law spouses, not just to legal spouses. In order to make the equalization, a court may in some cases order the transfer of an on reserve land interest to a partner of a relationship who is a member of the First Nation in question (but not to a non-member).
There is still much work to be done as First Nations develop their own laws and courts apply the provisional rules, but the Act is a tremendous step forward.