Family Homes on Reserves and Matrimonial Interests or Rights Act — F-1.2 36
Determination by court 36 (1) On application by a survivor made within 10 months after the day on which the death of their spouse or common-law partner occurs, a court may, by order, determine any matter in respect of the survivor’s entitlement under sections 34 and 35 including (a) determining the amount payable to the survivor; and (b) providing that the amount payable to the survivor be settled by (i) payment of the amount in a lump sum, (ii) payment of the amount by installments, (iii) if the survivor is a First Nation member, by the transfer of an interest or right, referred to in subparagraph (a)(i) or paragraph (b) or (c) of the definition interest or right in subsection 2 (1), in or to any structure or land situated on a reserve of that First Nation, or (iv) any combination of the methods referred to in subparagraphs (i) to (iii). Extension of time (2) On application by the survivor, a court may, by order, extend the period of 10 months by any amount of time that it considers appropriate, if the court is satisfied that the survivor failed to make an application within that period for any of the following reasons: (a) the survivor did not know of the death of their spouse or common-law partner until after the period expired; (b) circumstances existed that were beyond the control of the survivor; or (c) only after the period expired did the applicant become aware of any interests or rights referred to in subsections 34 (1) to (3). Clarification (3) A transfer may be ordered under subsection (1) (a) in the case of a First Nation that is not referred to in any of paragraphs (b) to (d), despite sections 24 and 49 of the Indian Act ; (b) in the case of a First Nation within the meaning of subsection 2(2) of the Framework Agreement on First Nation Land Management Act , subject to any land code within the meaning of that subsection or First Nation law as defined in subsection 2(1) of that Act to which the First Nation is subject; (c) in the case of a First Nation that has entered into a self-government agreement to which Her Majesty in right of Canada is a party, subject to any First Nation law enacted under the agreement; or (d) in the case of the Mohawks of Kanesatake, subject to any land governance code adopted, or any Kanesatake Mohawk law enacted, under the Kanesatake Interim Land Base Governance Act . Variation of trust (4) On application by a survivor, an executor of a will or an administrator of an estate, the court may, by order, vary the terms of a trust that is established under the terms of the deceased individual’s will so that the amount that is payable to the survivor may be paid. Notice to affected persons (5) An applicant for an order under this section must, without delay, send a copy of the application to the following persons, to the Minister and to any other person specified in the rules regulating the practice and procedure in the court: (a) in the case where the applicant is the survivor, to the executor of the will or the administrator of the estate, if the applicant knows who those persons are; or (b) in the case where the applicant is the executor of a will or an administrator of an estate, to the survivor. Notice to beneficiaries (6) On receipt of the copy of the application, the executor of the will or the administrator of the estate or, if neither has been appointed, the Minister must, without delay, send a copy of the application to the named beneficiaries under the will and the beneficiaries on intestacy. 2013, c. 20, s. 36 2022, c. 19, s. 138