Family Homes on Reserves and Matrimonial Interests or Rights Act — F-1.2 21
Order after death 21 (1) A court may, on application by a survivor whether or not that person is a First Nation member or an Indian, order that the survivor be granted exclusive occupation of the family home and reasonable access to that home, subject to any conditions and for the period that the court specifies. Interim order (2) The court may make, on application by the survivor, an interim order to the same effect, pending the determination of the application under subsection (1). Considerations (3) In making an order under this section, the court must consider, among other things, (a) the best interests of any children who habitually reside in the family home, including the interest of any child who is a First Nation member to maintain a connection with that First Nation; (b) the terms of the will; (c) the terms of any agreement between the spouses or common-law partners; (d) the collective interests of First Nation members in their reserve lands and the representations made by the council of the First Nation on whose reserve the family home is situated with respect to the cultural, social and legal context that pertains to the application; (e) the medical condition of the survivor; (f) the period during which the survivor has habitually resided on the reserve; (g) the fact that the family home is the only property of significant value in the estate; (h) the interests of any person who holds or will hold an interest or right in or to the family home; (i) the interests of any elderly person or person with a disability who habitually resides in the family home and for whom the survivor is the caregiver; (j) the existence of exceptional circumstances that necessitate the removal of a person from the family home in order to give effect to the granting to the survivor of exclusive occupation of that home, including the fact that the person has committed acts or omissions that constitute family violence, or reasonably constitute psychological abuse, against the survivor, any child in the charge of the survivor, or any other family member who habitually resides in the family home; and (k) the views of any person who received a copy of the application, presented to the court in any form that the court allows. Content of order (4) An order made under this section may contain provisions such as (a) a provision requiring the survivor to preserve the condition of the family home; (b) a provision requiring any specified person, whether or not that person holds an interest or right in or to the family home, to vacate it immediately or within a specified period, and prohibiting them from re-entering the home; and (c) a provision requiring the executor of the will, the administrator of the estate or the holder of an interest or right in or to the family home to pay for all or part of the repair and maintenance of the family home and of other liabilities arising in respect of it. Notice of order (5) The survivor must, without delay, give notice of an order made under this section to those who received a copy of the application. However, a peace officer must serve a copy of the order on those persons if the court so directs. Application to vary or revoke order (6) The survivor, the executor of the will or the administrator of the estate, any person specified in an order made under subsection (1) or the holder of an interest or right in or to the family home may apply to the court to have that order varied or revoked if there has been a material change in circumstances. The court may, by order, confirm, vary or revoke the order. Notice to affected persons (7) An applicant for an order under this section must, without delay, send a copy of the application to the executor of the will or the administrator of the estate, if the applicant knows who those persons are, to the Minister, to any person who is of the age of majority or over, whom the applicant is seeking to have the court order to vacate the family home, to any person who holds an inte