Matrimonial real property on reserve
Find out what rights and protections are available after the end of a marriage, common-law relationship or death of a spouse or common-law partner.
About the Act
Real property is property that cannot be physically moved, like land or a family home. Matrimonial real property refers to real property that is shared by two people during a marriage or common-law relationship. When a marriage or common-law relationship ends, such as in divorce or the death of a spouse or common-law partner, there are often many aspects which require sorting out including the division of real property.
Off-reserve, the division of matrimonial real property is generally governed by the laws of the province or the territory. However, the Supreme Court of Canada decision Derrickson v. Derrickson ruled that because reserve lands fall under federal jurisdiction, certain provincial and territorial laws could not be applied to matrimonial real property on-reserve. The Family Homes on-reserves and Matrimonial Interests or Rights Act (the Act) was created to fill the gap. The Act provides provisional federal rules for First Nations that have not established their own specific laws about matrimonial real property. The Act was developed after a long consultation process between the Government of Canada, the provinces and territories, and National Indigenous Organizations, involving over 100 sessions were held across Canada. The act provides a mechanism for First Nations to create their own laws about matrimonial real property, and provides a set of provisional federal laws to be used until a First Nation establishes its own law.
As of March 2018, 13 First Nations have created their own laws under this Act; and another 37 have created their own matrimonial real property rules as a component of their Land Code laws under the First Nations Land Management Act. Most other First Nations operate under the provisional federal rules. A First Nation that has not yet enacted its own matrimonial real property laws may choose to do so at any time.
Unless or until, a First Nations community chooses to enact their own matrimonial real property laws, there are provisional federal rules in place to provide matrimonial real property rights and protections for spouses and common-law partners living on-reserve. Most First Nations operate under the provisional federal rules.
To find out more, consult the desk book.
Who is affected?
The Act applies to married couples or common-law partners living on-reserve, where at least one partner is a First Nation member or Status Indian. The Indian Act defines a common-law relationship as two people in a conjugal relationship who have been living together for a year or more.
First Nations with self-government agreements covering land management are not included within the scope of the Act, as the self-government agreement already determines which matrimonial real property matters are governed by the province, territory, or First Nation. However, self-governing First Nations with reserve lands may ask the Minister to make a declaration that the provisional federal rules apply to them.
The provisional federal rules also apply to any self-governing First Nation:
- considered a band under the Indian Act
- with a sectoral self-government agreement not including the power to manage reserves
The Act establishes that the provisional federal rules do not apply to situations in which the relationship breakdown or death occurred before the provisional federal rules began to apply in the relevant First Nation community.
First Nations that were on the schedule to the First Nations Land Management Act prior to June 19, 2013, and had not brought their land code into force by December 16, 2014 had until June 19, 2016 to bring into force their own matrimonial rights laws, otherwise the provisional federal rules began to apply to them at that time.
Consult a complete list of First Nations with their own matrimonial rights or interest laws.
Enacting First Nations laws
The Act describes how First Nations can put in place their own matrimonial real property law. The law enacted by First Nations is subject to a community approval process. Neither Ministers nor any Government Department review, alter or approve a First Nation’s matrimonial real property law. To enact a matrimonial real property law, a First Nation must:
- notify the attorney general in its province of its intent to enact its own law
- inform eligible voters both on and off-reserve of the details of the proposed law, and their right to vote on the proposed law
- publish a notice of the date, time and place of the community ratification vote
- submit the laws for community approval. The law is considered ratified with a single majority vote with a voter turnout of at least 25% of eligible voters
- once the law is approved by the community, the council must notify the Minister in writing of the result of the vote
- send a copy of the approved laws to the Minister, the Centre of Excellence for Matrimonial Real Property, and the attorney general of any province where a reserve of the First Nation is situated
If a First Nation member believes the new law does not meet the requirements of the Act, violates the Canadian Charter of Rights and Freedoms, or otherwise is legally invalid, they can advocate for an amendment to the law, and if necessary challenge it in the courts.
Provisional federal rules
When a First Nation has not enacted its own matrimonial real property laws, the provisional federal rules are in place. They ensure that:
- spouses and common-law partners have equal right to occupy the family home during the relationship
- the family home cannot be sold, transferred, mortgaged, etc. during the marriage or common-law relationship without the free and informed written consent of the other spouse or common-law partner, regardless of whether that spouse or common-law partner is a First Nation member
- a spouse or common-law partner can be awarded exclusive occupation of the family home on an urgent basis in cases of family violence
- courts may provide short-term to long-term occupancy of the family home to the exclusion of one of the spouses or common-law partners. The length of this order is chosen by the court, and may range from a set number of days to a longer period (for example, occupancy may last until dependent children reach the age of majority)
- the value of a couple's matrimonial interests or rights in, or to, the family home, other structures, and in some cases lands, when both parties are band members, on the reserve may be divided equitably between each First Nations member spouse or common-law partner
- in some cases, a court may transfer an interest or right in reserve land between First Nations member spouses or common-law partners together with, or instead of, financial compensation
- when a spouse or common-law partner dies, the surviving spouse or common-law partner may remain in the home for a specified period of time, and can choose to apply under the federal rules for a division of the value of the matrimonial real property interests or rights instead of inheriting from the estate of the deceased
- parties may come to an agreement about matrimonial real property matters (for example, through mediation or traditional dispute resolution) which can be enforced by the court if necessary as long as the agreement is fair and reasonable
The provisional federal rules also provide protection to surviving spouses or common-law partners in the event of a death:
- the survivor has an automatic right to occupy the family home for 180 days after the death of their spouse or common-law partner, regardless of whether or not they have an interest or right to the home
- lthe survivor can apply for exclusive occupation of the matrimonial home beyond the 180-day period. The court will take various factors into consideration when determining whether or not to grant exclusive occupation and for how long
- the survivor can apply for a division of the value of the deceased’s interest or right in the family home and other matrimonial interests or rights. If the court determines that the survivor is entitled under this Act to an amount in respect of that interest or right, the survivor will not also be able to receive an amount or right under the will or the Indian Act related to the same property
- the survivor can still inherit other assets under the will. Administrators and executors of estates have access to information regarding the options for survivors that may affect the estate administration
Generally speaking, remedies under the provisional federal rules are accessible through provincial and territorial superior courts when couples cannot solve a dispute out of court. This is the same as the process for individuals living off-reserve.
Under the provisional federal rules, the value of rights or interests is based on what a buyer would reasonably be expected to pay a seller for comparable interests or rights. This estimate also takes into account any related liabilities and outstanding debts.
The provisional federal rules are based on the types of rights and protections contained in provincial and territorial family laws. However, for a variety of reasons including the unique nature of land and housing on-reserves, the provisional federal rules differ from the provincial and territorial laws in some respects.
Non-Indian and non-member spouses
The provisional federal rules do not allow non-Indians or non-members to permanently gain possession of reserve lands. Non-member spouses or partners are entitled to a portion of the monetary value of matrimonial structures such as houses on-reserve lands, but not the value of the land itself. If a non-member spouse has directly paid to improve matrimonial real property, a court can order that they are compensated.
Courts cannot force the sale of a home on-reserve land
Non-members cannot make money from the value of reserve land. Non-members cannot sell the land or the family home or benefit from the increased value of the land.
Many First Nations do not subscribe to the provisions of the Indian Act or other applicable legislation such as the First Nations Land Management Act in allotting land to individuals. They prefer to allow the use of lands to particular families or individuals through a custom or traditional holding referred to as custom allotments.
Several provisional federal rules, such as exclusive occupation orders, may affect "family homes" located on a custom allotment.
Rules dealing with the division of value of matrimonial interests or rights do not automatically apply to the value of custom allotments, but there are ways under the Act for these rules to be applied through First Nations recognition or by order of the court.
Emergency protection orders
In cases of family violence, a spouse or common-law partner can apply for an emergency protection order to gain sole occupancy of the family home. If necessary, a peace officer can remove the other spouse, or prohibit them from returning home unescorted for the length of the emergency protection order. Courts may also provide sole occupancy of the family home to one spouse or common-law partner.
In remote areas, you may be able to apply for an emergency protection order by telephone, email or fax. If you cannot apply in person, someone may apply on your behalf to ensure the immediate protection of the person or property at risk.
Emergency protection orders are currently only available in New Brunswick, Prince Edward Island and Nova Scotia. Until other provinces and territories designate judges for the purposes of hearing emergency protection orders, they will remain unavailable.
Centre of Excellence for Matrimonial Real Property
The Centre of Excellence for Matrimonial Real Property is hosted by the National Aboriginal Land Managers Association. The Centre’s main responsibilities are to:
- implement activities to assist First Nations communities and organizations with applying and understanding the legislation
- conduct research on subjects like family violence or alternative dispute resolution
- assist with implementing the provisional federal rules
- guide First Nations developing their own matrimonial real property laws by providing templates, examples and answering questions, when applicable
- provide information on the protections and rights available to individuals and families living on-reserve
- support an advisory committee that will provide non-binding advice
The Centre of Excellence has been operating since November 20, 2013.
The Centre of Excellence, Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs do not provide legal advice. The Centre of Excellence may be able to direct you to further resources. You may also be eligible for legal aid in your province or territory.
To find out more, visit the Centre of Excellence website or the ARCHIVED: Supporting First Nation video.
Training and education
Training and education is provided for key officials applying or enforcing the Act, including police officers on-reserve.
Royal Canadian Mounted Police
As of December 2014, the Matrimonial Real Property Online Resource Guide became available nationally to all Royal Canadian Mounted Police (RCMP) officers. The online resource guide is available on the Canadian Police Knowledge Network, and is available to all police agencies that provide front line policing in on-reserve communities across Canada.
Public Safety Canada
Public Safety Canada had a contribution agreement with the First Nations Chiefs of Police Association to create matrimonial real property training and resources for police officers on-reserve, who are not RCMP officers. The course was designed to provide an introduction to MRP issues, the Act and policing in First Nations communities. The course is available on the Canadian Police Knowledge Network.
First Nations Chief of Police
The First Nations Chiefs of Police have a contribution agreement in place to extend the work they have done in the past for Public Safety through the Centre of Excellence for Matrimonial Real Property. They will be focused on adding scenario based training to what they previously developed and will be hosting MRP workshops aimed at First Nations police services who have registered for and/or have completed the online training.
Indigenous Services Canada
Community Lands Development Directorate
Les Terrasses de la Chaudière
10 Wellington Street
Gatineau, QC K1A 0H4
Tel.: (toll-free) 1-800-567-9604