A new set of federal rules now apply to many First Nations. These rules relate to how matrimonial real property, such as a family home, is dealt with when couples divorce, relationships break down, or when a partner dies. The rules are set out in the new Family Homes on Reserves and Matrimonial Interests or Rights Act (the “Act”).[i] The Act itself came into force last year but the rules began to apply to First Nations on December 16, 2014.
The rules set out in the Act apply where at least one spouse or common-law partner is a member of the First Nation or an Indian under the Indian Act. Nothing in the Act affects title to reserve lands. The rules do not apply to First Nations who have signed the Framework Agreement on First Nations Land Management[ii] or who have self-government arrangements.[iii] First Nations subject to the new rules can opt out of them at any time by adopting their own matrimonial property laws.
Below is a brief discussion of the new rules. If your Nation requires any assistance in implementing the rules or drafting your own matrimonial property laws, we would be pleased to be of assistance.
Background on the Act
The Act is an attempt to fill what has been characterized as a legislative gap. While the provinces have laws governing the division of matrimonial real property, these laws do not apply on reserve lands.[iv] The Act is an attempt to fill this gap by creating similar rules that apply on reserve.
The rules contained in the Act are designed to provide some basic protections and rights to individuals on reserves during a relationship, if relationships break down, or when a partner dies.
Some of the protections and rights include:
- Rights for spouses and common-law partners regarding the family home including that each spouse or common-law partner may occupy the family home during the relationship, whether or not the person is a First Nation member or an Indian under the Indian Act.
- A spouse or common-law partner is entitled to an equal division of the value of the family home and any other matrimonial interests or rights in the event of a relationship breakdown.
- Agreements between spouses and common-law partners on how they choose to divide their matrimonial property can be enforced by the court.
- Subject to the Indian Act, one spouse cannot mortgage or sell the family home without the free, prior and informed consent of the other spouse (which includes common-law partners).
- In the event of the death of a spouse or common-law partner, the surviving spouse may remain in the family home for up to 180 days, even if the spouse does not hold an interest in or right to the family home.
- Provisions allowing a surviving spouse to potentially inherit the estate of their deceased spouse or apply to the court for half of the value of the matrimonial property.
- Protections for spouses in situations of family violence (which is defined in the Act).
- Gives powers to the courts, such as:
- granting exclusive (short to long term) occupancy to the family home to one spouse or common-law partner;
- granting emergency protection orders that exclude a spouse or common-law partner from the family home (in cases of violence); and
- ordering the transfer of matrimonial property to one spouse or common-law partner to the other.
Challenges and Opportunities
For First Nations subject to them, the new rules are likely to present potential challenges as well as opportunities.
Potential challenges include:
- Access to courts to enforce the rights protected by the Act will be costly and burdensome for remote communities.
- Increased conflict may be created by court orders as the Act empowers the courts to consider individual rights over the collective interests of the community.
- There may be situations where band members are denied rights while rights to non-band members are upheld, creating a scenario where a band member may not be able to live on reserve while a non band member can. With a lack of adequate housing on many reserves, a court order or a division of matrimonial property upon relationship breakdown or death may force First Nations band members off reserve.
Potential opportunities include:
- The Act empowers First Nations to enact their own laws with respect to matrimonial property.[v] This means that such disputes can be addressed in any way the First Nation sees fit, including the use of traditional dispute resolution processes rather than court processes.[vi]
- By either adhering to the rules or making their own, First Nations can provide protection to spousal and common-law partners in the event of relationship breakdown or death. This may prevent homelessness of a spouse or partner who otherwise would not have rights to an on-reserve family home.
- Given the power of the court to grant emergency and exclusive occupancy orders, the rules may prevent violence or at least protect spouses or common-law partners once violence occurs.
- The rules prevent a spouse or common-law partner from selling the family home without free, prior and informed consent, providing added protection to partners and spouses.
- The rules allow spouses and common-law partners to create their own agreements, which can be enforced by the court if the agreement is based on free, prior and informed consent and is not unconscionable. This gives spouses and common-law partners more flexibility and autonomy in determining their own rights and protections.
With the rules in the Family Homes on Reserves and Matrimonial Interests or Rights Act now in force, First Nations should consider whether they want to be subject to the new rules or if they would prefer to develop their own matrimonial real property laws.
[i] Family Homes on Reserves and Matrimonial Interests or Rights Act, S.C. 2013, c. 20. A copy of the Act can be accessed here.
[ii] The rules do not apply to First Nations under the First Nations Land Management Act or other self-government arrangements. These First Nations can choose to opt into the rules or continue to govern themselves according to their own laws. First Nations that are on the schedule to the First Nations Land Management Act prior to June 9, 2013 but are working on a land code will have until June 19, 2016 to enact their own matrimonial property laws.
[iii] If self-governing First Nations do not have laws relating to matrimonial property, they can choose to opt into the rules contained in the Act.
[iv] In 1986, the Supreme Court of Canada ruled in Derrickson v. Derrickson,  1 S.C.R. 285 that provincial matrimonial property laws have no real effect on reserves, where the interest is held by an Indian. This is because reserve lands lie within the exclusive jurisdiction of the federal government under its responsibility for “Indians, and lands reserved for Indians” pursuant to section 91(24) of the Constitution.
[v] A First Nation must have the approval of its members to enact laws under the Act. A majority of votes is required to approve the proposed laws, and a First Nation must have the participation of at least 25 per cent of eligible voters. A First Nation can increase (but may not decrease) the required percentage by adopting a resolution if it chooses.
[vi] Note that the laws must have procedures for amending and repealing them, provisions for administering them and provisions for enforcing them. It is not necessary for them to be enforced by a court, they can be enforced on reserve.