S-4
Third Session, Fortieth Parliament,
59 Elizabeth II, 2010
SENATE OF CANADA
BILL S-4
An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves
AS PASSED
BY THE SENATEJULY 6, 2010
90424
SUMMARY
This enactment provides for the adoption of First Nation laws and the establishment of provisional rules and procedures that apply during a conjugal relationship, when that relationship breaks down or on the death of a spouse or common-law partner, respecting the use, occupation and possession of family homes on First Nation reserves and the division of the value of any interests or rights held by spouses or common-law partners in or to structures and lands on those reserves.
Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca
TABLE OF PROVISIONS
AN ACT RESPECTING FAMILY HOMES SITUATED ON FIRST NATION RESERVES AND MATRIMONIAL INTERESTS OR RIGHTS IN OR TO STRUCTURES AND LANDS SITUATED ON THOSE RESERVES
Preamble
SHORT TITLE
1.       Family Homes on Reserves and Matrimonial Interests or Rights Act
INTERPRETATION
2.       Definitions
HER MAJESTY
3.       Binding on Her Majesty
PURPOSE AND APPLICATION
4.       Purpose
5.       Title to First Nation land
6.       Spouses or common-law partners
ENACTMENT OF FIRST NATION LAWS
Power of First Nations
7.       Power to enact First Nation laws
Verification
8.       Designation by Minister
9.       Appointment of verification officer
10.       Notice of determination
Community Approval and Certification
11.       Submission to members
12.       Role of verification officer
13.       Approval by members
14.       Copy and declaration
15.       Certification
Coming into Force
16.       Force of law and judicial notice
PROVISIONAL FEDERAL RULES
Application
17.       First Nations with reserve lands
Family Home
Occupation
18.       During conjugal relationship
19.       After death
20.       Consent of spouse or common-law partner
Emergency Protection Order
21.       Order of designated judge
22.       Order sent to court for review
23.       Application to vary or revoke order
24.       Confidentiality
Exclusive Occupation Order
25.       Court order
26.       Order after death
Other Provisions
27.       Family violence
28.       Interest or right not affected
29.       Notice
30.       Contiguous property
31.       Leases
32.       Offence
Division of the Value of Matrimonial Interests or Rights
Breakdown of a Conjugal Relationship
33.       Division of value
34.       Variation of amount
35.       Amount payable
36.       Order to transfer interests or rights
37.       Improvident depletion
38.       Enforcement of agreements
Death of a Spouse or Common-Law Partner
39.       Entitlement of survivor
40.       Variation of amount
41.       Determination by court
42.       Survivor’s choice
43.       Distribution of estate
44.       Improvident depletion
45.       Enforcement of agreements
Notice to Council and Views of Council
46.       Notice of application
47.       Notice of order
Jurisdiction of Courts
48.       Definition of “application”
49.       Proceedings on death
50.       Possibility of joinder
50.1       Right of appeal — divorce proceeding
Rules of Practice and Procedure
51.       Definitions
Other Provisions
52.       Determination by court — interest or right
53.       Proceedings on death
54.       Notice to Minister or council
55.       Provincial laws of evidence
56.       Enforcement of orders
REGULATIONS
57.       Governor in Council
TRANSITIONAL PROVISIONS
58.       Commencement of application
59.       Subsection 17(2)
COMING INTO FORCE
60.       Order in council
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3rd Session, 40th Parliament,
59 Elizabeth II, 2010
senate of canada
BILL S-4
An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves
Preamble
WHEREAS it is necessary to address certain family law matters on First Nation reserves since provincial and territorial laws that address those matters are not applicable there and since the Indian Act does not address those matters;
WHEREAS measures are required to provide spouses or common-law partners with rights and remedies during a conjugal relationship, when that relationship breaks down or on the death of a spouse or common-law partner in respect of
the use, occupation and possession of family homes on reserves, including exclusive occupation of those homes in cases of family violence, and
the division of the value of any interests or rights that they hold in or to structures and lands on those reserves;
WHEREAS it is important that, when spouses or common-law partners exercise those rights and seek those remedies, the decision-maker
take into account the best interests of the children, including the interest of any child who is a First Nation member to maintain a connection with that First Nation, and
be informed by the First Nation with respect to the cultural, social and legal context in the circumstances;
WHEREAS the Government of Canada has recognized the inherent right of self-government as an aboriginal right and is of the view that implementation of that right is best achieved through negotiations;
WHEREAS this Act is not intended to define the nature and scope of any right of self-government or to prejudge the outcome of any self-government negotiation;
AND WHEREAS the Parliament of Canada wishes to advance the exercise, in a manner consistent with the Constitution Act, 1982, of First Nations law-making power over family homes on reserves and matrimonial interests or rights in or to structures and lands on reserves;
NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Short title
1. This Act may be cited as the Family Homes on Reserves and Matrimonial Interests or Rights Act.
INTERPRETATION
Definitions
2. (1) The following definitions apply in this Act.
“council”« conseil »
“council”, in relation to a First Nation, has the same meaning as the expression “council of the band” in subsection 2(1) of the Indian Act.
“court”« tribunal »
“court”, unless otherwise indicated, means, in respect of a province, the court referred to in any of paragraphs (a) to (e) of the definition “court” in subsection 2(1) of the Divorce Act.
“designated judge”« juge désigné »
“designated judge”, in respect of a province, means any of the following persons who are authorized by the lieutenant governor in council of the province to act as a designated judge for the purposes of this Act:
(a) a justice of the peace appointed by the lieutenant governor in council of the province;
(b) a judge of the court in the province; or
(c) a judge of a court established under the laws of the province.
“family home”« foyer familial »
“family home” means a structure — that need not be affixed but that must be situated on reserve land — where the spouses or common-law partners habitually reside or, if they have ceased to cohabit or one of them has died, where they habitually resided on the day on which they ceased to cohabit or the death occurred. If the structure is normally used for a purpose in addition to a residential purpose, this definition includes only the portion of the structure that may reasonably be regarded as necessary for the residential purpose.
“First Nation”« première nation »
“First Nation” means a band as defined in subsection 2(1) of the Indian Act.
“First Nation member”« membre de la première nation »
“First Nation member” means a person whose name appears on the band list of a First Nation or who is entitled to have their name appear on that list.
“interest or right”« droit ou intérêt »
“interest or right” means
(a) the following interests or rights referred to in the Indian Act:
(i) a right to possession, with or without a Certificate of Possession or a Certificate of Occupation, allotted in accordance with section 20 of that Act,
(ii) a permit referred to in subsection 28(2) of that Act, and
(iii) a lease under section 53 or 58 of that Act;
(b) an interest or right in or to reserve land that is subject to any land code or First Nation law as defined in subsection 2(1) of the First Nations Land Management Act, to any First Nation law enacted under a self-government agreement to which Her Majesty in right of Canada is a party, or to any land governance code adopted, or any Kanesatake Mohawk law enacted, under the Kanesatake Interim Land Base Governance Act; and
(c) an interest or right in or to a structure — that need not be affixed but that must be situated on reserve land that is not the object of an interest or right referred to in paragraph (a) — which interest or right is recognized by the First Nation on whose reserve the structure is situated or by a court order made under section 52.
“matrimonial interests or rights”« droits ou intérêts matrimoniaux »
“matrimonial interests or rights” means interests or rights, other than interests or rights in or to the family home, held by at least one of the spouses or common-law partners
(a) that were acquired during the conjugal relationship;
(b) that were acquired before the conjugal relationship but in specific contemplation of the relationship; or
(c) that were acquired before the conjugal relationship but not in specific contemplation of the relationship and that appreciated during the relationship.
It excludes interests or rights that were received from a person as a gift or legacy or on devise or descent, and interests or rights that can be traced to those interests or rights.
“Minister”« ministre »
“Minister” means the Minister of Indian Affairs and Northern Development.
“organization”« organisme »
“organization” means the organization designated by the Minister under section 8.
“peace officer”« agent de la paix »
“peace officer” means a person referred to in paragraph (c) of the definition “peace officer” in section 2 of the Criminal Code. 
“spouse”« époux »
“spouse” includes either of two persons who have entered in good faith into a marriage that is voidable or void.
Words and expressions
(2) Unless the context otherwise requires, words and expressions used in this Act have the same meaning as in the Indian Act.
Agreement between spouses or common-law partners
(2.1) For greater certainty, for the purposes of this Act, an agreement between spouses or common-law partners includes an agreement reached through the use of traditional dispute resolution.
Former spouse or common-law partner
(3) For the purposes of the definition “matrimonial interests or rights” in subsection (1), subsection (2.1), section 6, subsections 20(2), (4) and (5) and sections 21, 25, 31, 33 to 38, 48, 50, 52, 53 and 58, a spouse or common-law partner includes a former spouse or common-law partner.
Term not restrictive
(4) The use of the term “application” to describe a proceeding in a court under this Act shall not be construed as limiting the name under which and the form and manner in which that proceeding may be taken in that court, and the name, manner and form of the proceeding in that court shall be those that are provided for by the rules regulating the practice and procedure in that court.
Kanesatake
(5) For the purposes of this Act, a reference to a reserve is also a reference to the Kanesatake Mohawk interim land base as defined in subsection 2(1) of the Kanesatake Interim Land Base Governance Act.
HER MAJESTY
Binding on Her Majesty
3. This Act is binding on Her Majesty in right of Canada or a province.
PURPOSE AND APPLICATION
Purpose
4. The purpose of this Act is to provide for the enactment of First Nation laws and the establishment of provisional rules and procedures that apply during a conjugal relationship, when that relationship breaks down or on the death of a spouse or common-law partner, respecting the use, occupation and possession of family homes on First Nation reserves and the division of the value of any interests or rights held by spouses or common-law partners in or to structures and lands on those reserves.
Title to First Nation land
5. For greater certainty,
(a) title to reserve lands is not affected by this Act;
(b) reserve lands continue to be set apart for the use and benefit of the First Nation for which they were set apart; and
(c) reserve lands continue to be lands reserved for the Indians within the meaning of Class 24 of section 91 of the Constitution Act, 1867.
Spouses or common-law partners
6. This Act applies to spouses or common-law partners only if at least one of them is a First Nation member or an Indian.
ENACTMENT OF FIRST NATION LAWS
Power of First Nations
Power to enact First Nation laws
7. (1) A First Nation has the power to enact First Nation laws that apply during a conjugal relationship, when that relationship breaks down or on the death of a spouse or common-law partner, respecting the use, occupation and possession of family homes on its reserves and the division of the value of any interests or rights held by spouses or common-law partners in or to structures and lands on its reserves.
Contents
(2) The laws shall include procedures for amending and repealing them and may include
(a) provisions for administering them; and
(b) despite subsection 89(1) of the Indian Act, provisions for enforcing, on a reserve of the First Nation, an order of a court that includes one or more provisions made under the laws or a decision made or an agreement reached under the laws.
Notice to provincial Attorney General
(3) When a First Nation intends to enact laws, the council shall so notify the Attorney General of any province in which a reserve of the First Nation is situated.
Non-application of Statutory Instruments Act
(4) The Statutory Instruments Act does not apply in respect of the laws.
Verification
Designation by Minister
8. The Minister may designate an organization for the purposes of sections 9 to 16.
Appointment of verification officer
9. (1) A First Nation that intends to enact First Nation laws under section 7 and the organization shall jointly appoint a verification officer who shall
(a) determine whether the proposed process for the approval by the community of the proposed laws is in accordance with this Act and, if it is in accordance with this Act, confirm it; and
(b) determine whether the conduct of the community approval process is in accordance with the process confirmed under paragraph (a).
Verification officers
(2) A person appointed as a verification officer must be unbiased and have the necessary knowledge or experience to act as a verification officer.
Notice of determination
10. (1) Within 30 days after the day on which the verification officer receives from a First Nation a document that sets out its proposed community approval process, the verification officer shall make a determination under paragraph 9(1)(a) and give notice of the determination to the First Nation and the organization.
Reasons
(2) If the verification officer determines that a proposed community approval process is not in accordance with this Act, the verification officer shall give written reasons with the notice.
Community Approval and Certification
Submission to members
11. (1) Once the verification officer determines that a proposed community approval process of a First Nation is in accordance with this Act, the council of the First Nation may submit the proposed First Nation laws to the First Nation members for their approval.
Eligibility to vote
(2) Every person who is 18 years of age or over and a member of the First Nation, whether or not resident on a reserve of the First Nation, is eligible to vote in the community approval process.
Information to be provided
(3) The council shall, before proceeding to obtain community approval, take reasonable measures that are in accordance with the First Nation’s practices to locate voters and inform them of their right to vote, the means of exercising that right and the content of the proposed laws.
Publication of notice
(4) The council shall publish a notice of the date, time and place of a vote.
Role of verification officer
12. (1) The verification officer shall observe the conduct of a vote and may appoint assistants for that purpose.
Report
(2) Within 15 days after the day on which a vote is concluded, the verification officer shall send to the First Nation and the organization the verification officer’s report on the conduct of the vote.
Approval by members
13. (1) The proposed First Nation laws that have been submitted for community approval are approved if
(a) a majority of eligible voters participated in the vote and a majority of those who participated voted to approve them; or
(b) all those eligible voters who signified, in a manner determined by the First Nation, their intention to vote have been registered and a majority of the registered voters voted to approve them.
Minimum participation
(2) Despite subsection (1), the proposed laws are not approved unless more than 25 per cent of the eligible voters voted to approve them.
Increased percentage
(3) A council may, by resolution, increase the percentage of votes required under subsection (2).
Copy and declaration
14. (1) When a First Nation votes to approve the proposed First Nation laws, its council shall, after the conclusion of the vote and without delay, send to the verification officer a copy of the approved laws and a declaration that they were approved in accordance with section 13.
Report of irregularity
(2) An eligible voter may, within five days after the day on which a vote is concluded, report any irregularity in the voting process to the verification officer.
Certification
15. (1) The verification officer shall, after receiving a copy of the First Nation laws and the declaration, certify that the conduct of the community approval process was in accordance with the process confirmed under paragraph 9(1)(a) unless the verification officer, after giving the First Nation a reasonable opportunity to make submissions on the matter but within 10 days after the day on which the vote is concluded, is of the opinion that
(a) the community approval process was not followed or the community approval was otherwise irregular; and
(b) the laws might not have been approved but for that irregularity.
Notice of decision
(2) The verification officer shall, without delay, give notice of the decision to the First Nation. If the verification officer does not certify the conduct of the community approval process, the verification officer shall give written reasons with the notice.
Copy
(3) If the verification officer certifies the conduct of the community approval process, the verification officer shall, without delay, send a copy of the certification to the First Nation, the Minister and the organization, and a copy of the laws to the Minister, the organization and the Attorney General of any province in which a reserve of the First Nation is situated.
Presumption
(4) Once the certification is issued, the laws are deemed to have been validly approved by the First Nation.
Coming into Force
Force of law and judicial notice
16. (1) The First Nation laws come into force and have the force of law on the day on which the certification is issued or on any later day that may be specified in or under them and judicial notice shall from then on be taken of the laws in any proceedings.
Evidence of laws
(2) In the absence of evidence to the contrary, a copy of the First Nation laws appearing to be certified as a true copy by an officer of the First Nation is proof of the original without proof of the officer’s signature or official character.
Access to First Nation laws
(3) A copy of the First Nation laws, as amended from time to time, shall be maintained by the council for public inspection at locations designated by the council.
Notice of amendments
(4) If a First Nation amends its laws, the council shall, without delay, send a copy of the amended laws to the Minister, the organization and the Attorney General of any province in which a reserve of the First Nation is situated.
Notice on repeal
(5) If a First Nation repeals its laws, the council shall, without delay and in writing, notify the Minister, the organization and the Attorney General of any province in which a reserve of the First Nation is situated.
List
(6) The Minister shall maintain a list of First Nations whose laws are in force and shall publish in any manner that the Minister considers appropriate the list and any amendments to the list.
PROVISIONAL FEDERAL RULES
Application
First Nations with reserve lands
17. (1) Sections 18 to 56 only apply to a First Nation that has reserve lands and that is not referred to in subsection (2) or (3) if the First Nation laws that it enacts under section 7 are not in force.
First Nations Land Management Act
(2) Sections 18 to 56 only apply to a First Nation, as defined in subsection 2(1) of the First Nations Land Management Act, if
(a) on the day on which this subsection comes into force, the land code that the First Nation adopts under section 6 of that Act is not in force; and
(b) the First Nation laws that it enacts under section 7 of this Act or the rules and procedures that it establishes under section 17 of that Act are not in force.
Self-governing First Nations that retain reserve land
(3) Sections 18 to 56 only apply to a First Nation that has the power to manage its reserve land under a self-government agreement into which the First Nation has entered and to which Her Majesty in right of Canada is a party if
(a) on the recommendation of the parties to the agreement, the Minister makes a declaration, by order, that those sections apply to the First Nation; and
(b) the First Nation laws referred to in section 7 that it enacts under that section or under the self-government agreement are not in force.
Declaration
(4) In the declaration referred to in paragraph (3)(a), the Minister shall specify that sections 18 to 56 apply to the First Nation until the First Nation laws referred to in section 7 that it enacts under that section or under the self-government agreement come into force.
List
(5) The Minister shall maintain a list of First Nations in respect of which the Minister has made a declaration and shall publish in any manner that the Minister considers appropriate the list and any amendments to the list.
Notice on coming into force
(6) If a First Nation in respect of which the Minister has made a declaration enacts the First Nation laws referred to in section 7 under that section or under the self-government agreement, and those laws come into force, the First Nation shall notify the Minister in writing without delay.
Family Home
Occupation
During conjugal relationship
18. Each spouse or common-law partner may occupy the family home during the conjugal relationship, whether or not that person is a First Nation member or an Indian.
After death
19. When a spouse or common-law partner dies, a survivor who does not hold an interest or right in or to the family home may occupy that home for a period of 180 days after the day on which the death occurs, whether or not the survivor is a First Nation member or an Indian.
Consent of spouse or common-law partner
20. (1) Subject to the Indian Act, no spouse or common-law partner who holds an interest or right in or to the family home shall dispose of or encumber that interest or right during the conjugal relationship without the free and informed consent in writing of the other spouse or common-law partner, whether or not that person is a First Nation member or an Indian.
Setting aside
(2) If a spouse or common-law partner disposes of or encumbers their interest or right in or to the family home without the required consent of the other spouse or common-law partner, a court may, on application by the other spouse or common-law partner, by order, set aside the transaction and impose conditions on any future disposition or encumbrance of that interest or right by the spouse or common-law partner to whom the interest or right reverts.
Exception
(3) However, the disposition or encumbrance may not be set aside if the other contracting party acquired it for value and acted in good faith.
Damages
(4) A spouse or common-law partner who has not given consent to a transaction for which it was required may, without prejudice to any other right, claim damages from the other spouse or common-law partner.
Proof of consent
(5) The spouse or common-law partner who disposed of or encumbered the interest or right in or to the family home has the burden of proving that the other spouse or common-law partner consented to the disposition or encumbrance.
Authorization
(6) Subject to the Indian Act, a court may, on application by the spouse or common-law partner who holds an interest or right in or to the family home, by order, authorize that person, subject to any conditions that the court considers appropriate, to dispose of or encumber that interest or right without the required consent of the other spouse or common-law partner if the court is satisfied that the other spouse or common-law partner cannot be found, is not capable of consenting or is unreasonably withholding consent.
Emergency Protection Order
Order of designated judge
21. (1) On ex parte application by a spouse or common-law partner, a designated judge of the province in which the family home is situated may make an order for a period of up to 90 days that contains one or more of the provisions referred to in subsection (5) and that is subject to any conditions that the judge specifies, if the judge is satisfied that
(a) family violence has occurred; and
(b) the order should be made without delay, because of the seriousness or urgency of the situation, to ensure the immediate protection of the person who is at risk of harm or property that is at risk of damage.
Applicant
(2) The spouse or common-law partner may make the application even if that person has been forced to vacate the family home as a result of family violence.
Acting on behalf of applicant
(3) A peace officer or other person may also make the application on behalf of the spouse or common-law partner with that person’s consent, or if that person does not consent, with leave of the designated judge granted in accordance with the regulations.
Considerations
(4) In making the order, the designated judge shall consider, among other things,
(a) the history and nature of the family violence;
(b) the existence of immediate danger to the person who is at risk of harm or property that is at risk of damage;
(c) the best interests of any child in the charge of either spouse or common-law partner, including the interest of any child who is a First Nation member to maintain a connection with that First Nation;
(d) the interests of any elderly person or person with a disability who habitually resides in the family home and for whom either spouse or common-law partner is the caregiver;
(e) the fact that a person, other than the spouses or common-law partners, holds an interest or right in or to the family home;
(e.1) the period during which the applicant has habitually resided on the reserve; and
(f) the existence of exceptional circumstances that necessitate the removal of a person other than the applicant’s spouse or common-law partner from the family home in order to give effect to the granting to the applicant of exclusive occupation of that home, including the fact that the person has committed acts or omissions referred to in subsection (9) against the applicant, any child in the charge of either spouse or common-law partner, or any other person who habitually resides in the family home.
Content of order
(5) The order may contain
(a) a provision granting the applicant exclusive occupation of the family home and reasonable access to that home;
(b) a provision requiring the applicant’s spouse or common-law partner and any specified person who habitually resides in the family home — whether or not they are First Nation members or Indians — to vacate the family home, immediately or within a specified period, and prohibiting them from re-entering the home;
(c) a provision directing a peace officer, immediately or within a specified period, to remove the applicant’s spouse or common-law partner and any specified person who habitually resides in the family home — whether or not they are First Nation members or Indians — from the family home;
(d) a provision prohibiting any person who is required to vacate the family home under a provision referred to in paragraph (b) from attending near the family home;
(e) a provision directing a peace officer, within a specified period, to accompany the applicant’s spouse or common-law partner or any specified person to the family home or other location in order to supervise the removal of personal belongings; and
(f) any other provision that the designated judge considers necessary for the immediate protection of the person who is at risk of harm or property that is at risk of damage.
Notice of order
(6) Any person against whom the order is made and any person specified in the order are bound by the order on receiving notice of it.
Service by peace officer
(7) A peace officer shall serve a copy of the order on the persons referred to in subsection (6) either directly or, if authorized by the court in the province in which the designated judge has jurisdiction, by substituted service in the manner, under the circumstances and on the conditions prescribed by regulation. The peace officer shall inform the applicant as soon as each service is effected.
No personal liability
(8) No action or other proceeding shall be instituted against a peace officer for any act or omission done in good faith in the execution or intended execution of the peace officer’s duties under this section.
Definition of “family violence”
(9) For the purposes of this section, “family violence” means any of the following acts or omissions committed by a spouse or common-law partner against the other spouse or common-law partner, any child in the charge of either spouse or common-law partner, or any other person who habitually resides in the family home:
(a) an intentional application of force without lawful authority or consent, excluding any act committed in self-defence;
(b) an intentional or reckless act or omission that causes bodily harm or damage to property;
(c) an intentional, reckless or threatened act or omission that causes a reasonable fear of bodily harm or damage to property;
(d) sexual assault, sexual abuse or the threat of either;
(e) forcible confinement without lawful authority; or
(f) criminal harassment.
Order sent to court for review
22. (1) Immediately after making an order under section 21, a designated judge referred to in paragraph (a) or (c) of the definition “designated judge” in subsection 2(1) shall forward a copy of the order and all supporting materials to the court in the province in which the designated judge has jurisdiction.
Review by court
(2) The court shall review the order within three working days after the day on which it is received or, if a judge is not available within that period, as soon as one becomes available.
Decision
(3) The court, on reviewing the order and the materials, shall, by order,
(a) confirm the order if the court is satisfied that there was sufficient evidence before the designated judge to support the making of the order; or
(b) direct a rehearing of the matter by the court if the court is not satisfied that the evidence before the designated judge was sufficient to support the making of all or part of the order.
Notice
(4) The court shall give notice to the parties and any person specified in the order made by the designated judge of its decision and of any consequent procedures.
Confirmed order
(5) An order that is confirmed is deemed to be an order of the court.
Rehearing — order continues
(6) If the court directs that a matter be reheard, the order continues in effect and is not stayed unless the court orders otherwise.
Evidence at rehearing
(7) The materials referred to in subsection (1) shall be considered as evidence at the rehearing, in addition to any evidence presented at the rehearing, including evidence on the collective interests of the First Nation members, on whose reserve the family home is situated, in their reserve lands.
Order on rehearing
(8) On a rehearing, the court may, by order, confirm, vary or revoke the order made under section 21, but may only extend the duration of the order for up to 90 days beyond the period of 90 days referred to in subsection 21(1).
Section 23 application
(9) If an application is made under section 23 and a rehearing has been ordered but has not begun, that application shall be heard at the rehearing.
Application to vary or revoke order
23. (1) Any person in whose favour or against whom an order is made under section 21 or 22 or any person specified in the order may apply to the court in the province in which the designated judge has jurisdiction to have the order varied or revoked
(a) within 21 days after the day on which notice of the order made under section 21 is received, or within any further time that the court allows; and
(b) at any time if there has been a material change in circumstances.
Confirm, vary or revoke order
(2) The court may, by order, confirm, vary or revoke the order, but may only extend the duration of the order for up to 90 days beyond the period of 90 days referred to in subsection 21(1).
Evidence at hearing
(3) The supporting materials for the order made by the designated judge shall be considered as evidence at the hearing, in addition to any evidence presented at the hearing, including evidence on the collective interests of the First Nation members, on whose reserve the family home is situated, in their reserve lands.
Confidentiality
24. (1) Subject to subsection (2), on application by the parties or on its own motion, the court in the province in which the designated judge has jurisdiction may make an order that contains one or more of the following provisions and that is subject to any conditions that the court specifies:
(a) a provision excluding members of the public, other than the parties, from all or part of a rehearing referred to in section 22 or a hearing referred to in section 23;
(b) a provision prohibiting the publication or broadcasting of any information from the rehearing or hearing, including the name of a party, witness or child in the charge of either party or any information likely to identify any of those persons; and
(c) a provision prohibiting disclosure to the public of any information in a court document or record related to a proceeding under section 22 or 23.
Conditions
(2) The court may only make the order if it is satisfied that
(a) the order is necessary for the safety of a party or witness or the safety or physical or emotional well-being of a child; or
(b) protecting a party, witness or child from an undue hardship or adverse effect that could be caused by making the information public outweighs the public’s right to the information.
Exclusive Occupation Order
Court order
25. (1) A court may, on application by a spouse or common-law partner whether or not that person is a First Nation member or an Indian, order that the applicant 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 either spouse or common-law partner, 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 shall 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 any agreement between the spouses or common-law partners;
(c) 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;
(c.1) the period during which the applicant has habitually resided on the reserve;
(d) the financial situation and the medical condition of the spouses or common-law partners;
(e) the availability of other suitable accommodation that is situated on the reserve;
(f) any existing order made on a matter related to the consequences of the breakdown of the conjugal relationship;
(g) any family violence;
(h) any acts or omissions by one of the spouses or common-law partners that reasonably constitute psychological abuse against the other spouse or common-law partner, any child in the charge of either spouse or common-law partner, or any other family member who habitually resides in the family home;
(i) the existence of exceptional circumstances that necessitate the removal of a person other than the applicant’s spouse or common-law partner from the family home in order to give effect to the granting to the applicant 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 applicant, any child in the charge of either spouse or common-law partner, or any other family member who habitually resides in the family home;
(j) the interests of any elderly person or person with a disability who habitually resides in the family home and for whom either spouse or common-law partner is the caregiver;
(k) the fact that a person, other than the spouses or common-law partners, holds an interest or right in or to the family home; and
(l) 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 applicant’s spouse or common-law partner and any specified person — whether or not they are First Nation members or Indians — to vacate the family home, immediately or within a specified period, and prohibiting them from re-entering the home;
(b) a provision requiring the applicant’s spouse or common-law partner to preserve the condition of the family home until that person vacates it;
(c) a provision directing the applicant to make payments to the other spouse or common-law partner toward the cost of other accommodation; and
(d) a provision requiring either spouse or common-law partner to pay for all or part of the repair and maintenance of the family home and of other liabilities arising in respect of the family home, or to make payments to the other spouse or common-law partner for those purposes.
Emergency protection order revoked
(5) An existing order made under any of sections 21 to 23 in favour of or against one of the spouses or common-law partners is revoked when the court makes an order under this section, except to the extent specified in that order.
Application to vary or revoke order
(6) Any person in whose favour or against whom an order is made under subsection (1), any person specified in the order, or the holder of an interest or right in or to the family home may apply to the court to have the 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 shall, without delay, send a copy of the application 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 interest or right in or to the family home and to any other person specified in the rules regulating the practice and procedure in the court.
Order after death
26. (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 shall 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 shall, without delay, give notice of an order made under this section to those who received a copy of the application. However, a peace officer shall 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 shall, 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 interest or right in or to the family home and to any other person specified in the rules regulating the practice and procedure in the court.
Other Provisions
Family violence
27. For greater certainty, a designated judge or a court may find that family violence has occurred for the purposes of this Act whether or not, in respect of the act or omission in question, a charge has been laid, dismissed or withdrawn or a conviction has been or could be obtained.
Interest or right not affected
28. For greater certainty, an order made under any of sections 21 to 23, 25 or 26 does not change who holds an interest or right in or to the family home nor does it prevent an executor of a will or an administrator of an estate from transferring such an interest or right to a named beneficiary under the will or to a beneficiary on intestacy, or a court from ordering the transfer of such an interest or right under section 36 or 41.
Notice
29. The person in whose favour an order is made under section 22, 23 or 25 shall, without delay, give notice of the order to any person against whom the order is made and any person specified in the order. However, a peace officer shall serve a copy of the order on those persons if the court so directs.
Contiguous property
30. For the purposes of sections 21, 25 and 26, if the reserve land on which the family home is situated is the object of an interest or right referred to in subparagraph (a)(i) of the definition “interest or right” in subsection 2(1), exclusive occupation of the family home includes exclusive occupation of the portion of that land that is contiguous to the family home and that is strictly necessary for the use and enjoyment of the family home.
Leases
31. When an order made under any of sections 21 to 23, 25 or 26 grants exclusive occupation of the family home to a spouse, common-law partner or survivor who is not a lessee under the lease for the family home, the spouse, common-law partner or survivor is bound by the lease during the period of the order.
Offence
32. Any person who contravenes an order made under any of sections 21 to 24, a provision referred to in paragraph 25(4)(a) contained in an order made under section 25 or a provision referred to in paragraph 26(4)(b) contained in an order made under section 26 is guilty of an offence punishable on summary conviction and liable
(a) in the case of a first offence, to a fine not exceeding $2,000 or to imprisonment for a term not exceeding three months, or to both; or
(b) in the case of a subsequent offence, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding one year, or to both.
Division of the Value of Matrimonial Interests or Rights
Breakdown of a Conjugal Relationship
Division of value
33. (1) When a conjugal relationship breaks down, each spouse or common-law partner is entitled, on application made under section 35, to an amount equal to one half of the value, on the valuation date, of the interest or right that is held by at least one of them in or to the family home and to the amounts referred to in subsections (2) and (3).
First Nation members
(2) A spouse or common-law partner who is a member of the First Nation on whose reserve are situated any structures and lands that are the object of interests or rights that are held by the other spouse or common-law partner is also entitled to an amount equal to the total of
(a) one half of the value, on the valuation date, of matrimonial interests or rights referred to in paragraphs (a) and (b) of the definition “matrimonial interests or rights” in subsection 2(1) that are held by the other spouse or common-law partner in or to structures and lands situated on a reserve of that First Nation,
(b) the greater of
(i) one half of the appreciation in value, between the day on which the conjugal relationship began and the valuation date inclusive, of matrimonial interests or rights referred to in paragraph (c) of that definition that are held by the other spouse or common-law partner in or to structures and lands situated on a reserve of that First Nation, and
(ii) the difference between the payments that the spouse or common-law partner made towards improvements made, between the day on which the conjugal relationship began and the valuation date inclusive, to structures and lands situated on a reserve of that First Nation that are the object of matrimonial interests or rights referred to in that paragraph (c) that are held by the other spouse or common-law partner, and the amount of debts or other liabilities outstanding on the valuation date that were assumed to make the payments, and
(c) the difference between the payments that the spouse or common-law partner made towards improvements made, between the day on which the conjugal relationship began and the valuation date inclusive, to structures and lands situated on a reserve of that First Nation that are the object of interests or rights that are held by the other spouse or common-law partner that would have been matrimonial interests or rights referred to in that paragraph (c) if they had appreciated during the conjugal relationship, and the amount of debts or other liabilities outstanding on the valuation date that were assumed to make the payments.
Non-members
(3) A spouse or common-law partner who is not a member of the First Nation on whose reserve are situated any structures and lands that are the object of interests or rights that are held by the other spouse or common-law partner is also entitled to an amount equal to the total of
(a) one half of the value, on the valuation date, of matrimonial interests or rights referred to in paragraphs (a) and (b) of the definition “matrimonial interests or rights” in subsection 2(1) that are held by the other spouse or common-law partner in or to structures situated on a reserve of that First Nation,
(b) the greater of
(i) one half of the appreciation in value, between the day on which the conjugal relationship began and the valuation date inclusive, of matrimonial interests or rights referred to in paragraph (c) of that definition that are held by the other spouse or common-law partner in or to structures situated on a reserve of that First Nation, and
(ii) the difference between the payments that the spouse or common-law partner made towards improvements made, between the day on which the conjugal relationship began and the valuation date inclusive, to structures situated on a reserve of that First Nation that are the object of matrimonial interests or rights referred to in that paragraph (c) that are held by the other spouse or common-law partner, and the amount of debts or other liabilities outstanding on the valuation date that were assumed to make the payments, and
(c) the difference between the payments that the spouse or common-law partner made towards improvements made, between the day on which the conjugal relationship began and the valuation date inclusive, to the following lands and structures situated on a reserve of that First Nation, and the amount of debts or other liabilities outstanding on the valuation date that were assumed to make the payments:
(i) lands that are the object of matrimonial interests or rights that are held by the other spouse or common-law partner, and
(ii) structures that are the object of interests or rights that are held by the other spouse or common-law partner that would have been matrimonial interests or rights referred to in that paragraph (c) if they had appreciated during the conjugal relationship.
Determination of value
(4) For the purposes of subsections (1) to (3), the value of the interests or rights is the difference between
(a) the amount that a buyer would reasonably be expected to pay for interests or rights that are comparable to the interests or rights in question, and
(b) the amount of any outstanding debts or other liabilities assumed for acquiring the interests or rights or for improving or maintaining the structures and lands that are the object of the interests or rights.
Agreement by parties
(5) Despite subsection (4), on agreement by the spouses or common-law partners, the value of the interests or rights may be determined on any other basis.
Definition of “valuation date”
(6) For the purposes of this section, “valuation date” means
(a) in the case of spouses, the earliest of the following days:
(i) the day on which the spouses separated with no reasonable prospect of reconciliation,
(ii) the day on which the judgment granting their divorce was rendered,
(iii) the day on which the marriage was declared a nullity,
(iv) the day on which one of the spouses made an application related to the consequences of the breakdown of the marriage, and
(v) the day on which one of the spouses made an application to restrain improvident depletion of the interest or right in or to the family home and of the matrimonial interests or rights that is subsequently granted; or
(b) in the case of common-law partners, the earliest of the following days:
(i) the day on which one of the common-law partners manifested the intention not to continue the conjugal relationship,
(ii) the day on which one of the common-law partners made an application related to the consequences of the breakdown of the conjugal relationship, and
(iii) the day on which one of the common-law partners made an application to restrain improvident depletion of the interest or right in or to the family home and of the matrimonial interests or rights that is subsequently granted.
Variation of amount
34. On application by a spouse or common-law partner, a court may, by order, vary the amount owed to or by the applicant under section 33 if that amount would be unconscionable, having regard to, among other things,
(a) the applicant’s financial responsibility related to the care and upbringing of the children in the applicant’s charge;
(b) the amount of debts or other liabilities referred to in that section incurred by each spouse or common-law partner;
(c) any significant change in the value of the interests or rights in question between the valuation date as defined in subsection 33(6) and the day on which the order is made, inclusive;
(d) the fact that one of the spouses or common-law partners may obtain exclusive occupation of the family home on agreement or under an order referred to in section 25;
(e) the availability of accommodation that is comparable to the family home and that is situated on the same reserve as the family home;
(f) the duration of the conjugal relationship;
(g) the terms of any agreement between the spouses or common-law partners;
(h) the reduction of the value of the interests or rights in question as a result of acts or omissions by the applicant’s spouse or common-law partner including the disposition of any such interest or right for less than its fair value, the improvident depletion of any such interest or right, the disposition or encumbrance of the interest or right in or to the family home without the applicant’s required consent, and the encumbrance of that interest or right after the valuation date as defined in subsection 33(6); or
(i) other determinations that the court may make on any matters related to the consequences of the breakdown of the conjugal relationship.
Amount payable
35. (1) On application by one of the spouses or common-law partners made within three years after the day on which they ceased to cohabit, a court may, by order, determine any matter in respect of each spouse’s or common-law partner’s entitlement under sections 33 and 34 including
(a) determining the amount payable by one spouse or common-law partner to the other; and
(b) providing that the amount payable be settled by
(i) payment of the amount in a lump sum,
(ii) payment of the amount by installments,
(iii) the transfer of an interest or right under an order referred to in section 36,
(iv) the set-off or compensation of any amounts owed by one spouse or common-law partner to the other, or
(v) any combination of the methods referred to in subparagraphs (i) to (iv).
Extension of time
(2) On application by a spouse or common-law partner, a court may, by order, extend the period of three years by any amount of time that it considers appropriate, if the court is satisfied that the applicant failed to make an application within that period for either of the following reasons:
(a) circumstances existed that were beyond the control of the applicant; or
(b) only after the period expired did the applicant become aware of any interests or rights referred to in subsections 33(1) to (3).
Order to transfer interests or rights
36. (1) When a conjugal relationship breaks down, a court may, on application by a spouse or common-law partner who is a First Nation member, order that 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 be transferred to the applicant if the court is satisfied that
(a) the spouses or common-law partners agreed in writing to the transfer of the interest or right, the consent of both parties was free and informed and the agreement is not unconscionable, having regard to, among other things, the factors listed in section 34;
(b) the applicant had previously held the interest or right before the cessation of cohabitation; or
(c) the transfer is appropriate in the circumstances because the spouses or common-law partners hold more than one such interest or right in or to structures and lands situated on a reserve of that First Nation.
Clarification
(2) 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 section 24 of the Indian Act;
(b) in the case of a First Nation as defined in subsection 2(1) of the First Nations Land Management Act, subject to any land code or First Nation law as defined in that subsection 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.
Improvident depletion
37. On application by a spouse or common-law partner, a court may make any order that it considers necessary to restrain the improvident depletion of the interest or right in or to the family home and of the matrimonial interests or rights for the purpose of protecting
(a) the right that might be granted to the applicant in an order made under section 25 or any interest or right that might be transferred to the applicant in an order made under section 36; or
(b) the value of the interests or rights that will be used to determine the amount that might be payable to the applicant in an order made under section 35.
Enforcement of agreements
38. If spouses or common-law partners enter into a written agreement, after they cease to cohabit, that sets out the amount to which each is entitled and how to settle the amount payable by one of the methods referred to in subparagraph 35(1)(b)(i), (ii) or (iv) or any combination of those methods, a court may, on application by one of them, make an order to enforce that agreement if the court is satisfied that the consent of both parties to the agreement was free and informed, and that the agreement is not unconscionable, having regard to, among other things, the factors listed in section 34.
Death of a Spouse or Common-Law Partner
Entitlement of survivor
39. (1) On the death of a spouse or common-law partner, the survivor is entitled, on application made under section 41, to an amount equal to one half of the value, on the valuation date, of the interest or right that was held by the deceased individual in or to the family home and to the amounts referred to in subsections (2) and (3).
First Nation members
(2) A survivor who is a member of the First Nation on whose reserve are situated any structures and lands that are the object of interests or rights that were held by the deceased individual is also entitled to an amount equal to the total of
(a) one half of the value, on the valuation date, of matrimonial interests or rights referred to in paragraphs (a) and (b) of the definition “matrimonial interests or rights” in subsection 2(1) that were held by the deceased individual in or to structures and lands situated on a reserve of that First Nation,
(b) the greater of
(i) one half of the appreciation in value, between the day on which the conjugal relationship began and the valuation date inclusive, of matrimonial interests or rights referred to in paragraph (c) of that definition that were held by the deceased individual in or to structures and lands situated on a reserve of that First Nation, and
(ii) the difference between the payments that the survivor made towards improvements made, between the day on which the conjugal relationship began and the valuation date inclusive, to structures and lands situated on a reserve of that First Nation that are the object of matrimonial interests or rights referred to in that paragraph (c) that were held by the deceased individual, and the amount of debts or other liabilities outstanding on the valuation date that were assumed to make the payments, and
(c) the difference between the payments that the survivor made towards improvements made, between the day on which the conjugal relationship began and the valuation date inclusive, to structures and lands situated on a reserve of that First Nation that are the object of interests or rights that were held by the deceased individual that would have been matrimonial interests or rights referred to in that paragraph (c) if they had appreciated during the conjugal relationship, and the amount of debts or other liabilities outstanding on the valuation date that were assumed to make the payments.
Non-members
(3) A survivor who is not a member of the First Nation on whose reserve are situated any structures and lands that are the object of interests or rights that were held by the deceased individual is also entitled to an amount equal to the total of
(a) one half of the value, on the valuation date, of matrimonial interests or rights referred to in paragraphs (a) and (b) of the definition “matrimonial interests or rights” in subsection 2(1) that were held by the deceased individual in or to structures situated on a reserve of that First Nation,
(b) the greater of
(i) one half of the appreciation in value, between the day on which the conjugal relationship began and the valuation date inclusive, of matrimonial interests or rights referred to in paragraph (c) of that definition that were held by the deceased individual in or to structures situated on a reserve of that First Nation, and
(ii) the difference between the payments that the survivor made towards improvements made, between the day on which the conjugal relationship began and the valuation date inclusive, to structures situated on a reserve of that First Nation that are the object of matrimonial interests or rights referred to in that paragraph (c) that were held by the deceased individual, and the amount of debts or other liabilities outstanding on the valuation date that were assumed to make the payments, and
(c) the difference between the payments that the survivor made towards improvements made, between the day on which the conjugal relationship began and the valuation date inclusive, to the following lands and structures situated on a reserve of that First Nation, and the amount of debts or other liabilities outstanding on the valuation date that were assumed to make the payments:
(i) lands that are the object of matrimonial interests or rights that were held by the deceased individual, and
(ii) structures that are the object of interests or rights that were held by the deceased individual that would have been matrimonial interests or rights referred to in that paragraph (c) if they had appreciated during the conjugal relationship.
Determination of value
(4) For the purposes of subsections (1) to (3), the value of the interests or rights is the difference between
(a) the amount that a buyer would reasonably be expected to pay for interests or rights that are comparable to the interests or rights in question, and
(b) the amount of any outstanding debts or other liabilities assumed for acquiring the interests or rights or for improving or maintaining the structures and lands that are the object of the interests or rights.
Agreement by parties
(5) Despite subsection (4), on agreement by the survivor and the executor of the will or the administrator of the estate, the value of the interests or rights may be determined on any other basis.
Definition of “valuation date”
(6) For the purposes of this section, “valuation date” means
(a) in the case of spouses, the earliest of the following days:
(i) the day before the day on which the death occurred,
(ii) the day on which the spouses ceased to cohabit as a result of the breakdown of the marriage, and
(iii) the day on which the spouse who is now the survivor made an application to restrain improvident depletion of the interest or right in or to the family home and of the matrimonial interests or rights that is subsequently granted; or
(b) in the case of common-law partners, the earlier of the following days:
(i) the day before the day on which the death occurred, and
(ii) the day on which the common-law partner who is now the survivor made an application to restrain improvident depletion of the interest or right in or to the family home and of the matrimonial interests or rights that is subsequently granted.
Variation of amount
40. On application by an executor of a will or an administrator of an estate, a court may, by order, vary the amount owed to the survivor under section 39 if the spouses or common-law partners had previously resolved the consequences of the breakdown of the conjugal relationship by agreement or judicial decision, or if that amount would be unconscionable, having regard to, among other things, the fact that any children of the deceased individual would not be adequately provided for.
Determination by court
41. (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 39 and 40 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 39(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 as defined in subsection 2(1) of the First Nations Land Management Act, subject to any land code or First Nation law as defined in that subsection 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 shall, 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 shall, without delay, send a copy of the application to the named beneficiaries under the will and the beneficiaries on intestacy.
Survivor’s choice
42. If a court decides, after the death of a spouse or common-law partner, that an amount is payable to the survivor under section 35 or 41, the survivor may not, in respect of the interest or right in or to the family home and of the matrimonial interests or rights, benefit from the deceased individual’s will or sections 48 to 50.1 of the Indian Act.
Distribution of estate
43. (1) Subject to subsection (2), an executor of a will or an administrator of an estate shall not proceed with the distribution of the estate until one of the following occurs:
(a) the survivor consents in writing to the proposed distribution;
(b) the period of 10 months referred to in subsection 41(1) and any extended period the court may have granted under subsection 41(2) have expired and no application has been made under subsection 41(1) within those periods; or
(c) an application made under subsection 41(1) is disposed of.
Advances to dependants
(2) Subsection (1) does not prohibit reasonable advances to survivors or other dependants of the deceased spouse or common-law partner for their support.
Two survivors
(3) When there are two survivors — a common-law partner and a spouse with whom the deceased individual was no longer cohabiting — and an amount is payable to both under an order referred to in section 41, the executor of the will or the administrator of the estate shall pay the survivor who was the common-law partner before paying the survivor who was the spouse.
Improvident depletion
44. On application by a survivor, a court may make any order that it considers necessary to restrain the improvident depletion of the interest or right in or to the family home and of the matrimonial interests or rights for the purpose of protecting
(a) the right that might be granted to the survivor in an order made under section 26 or any interest or right that might be transferred to the applicant in an order made under section 41; or
(b) the value of the interests or rights that will be used to determine the amount that might be payable to the survivor in an order made under section 41.
Enforcement of agreements
45. If a survivor and the executor of the will or the administrator of the estate enter into a written agreement that sets out the amount to which the survivor is entitled and how to settle the amount payable by one or both of the methods referred to in subparagraph 41(1)(b)(i) or (ii), a court may, on application by one of them, make an order to enforce that agreement if the court is satisfied that the consent of the survivor to the agreement was free and informed and that the agreement is not unconscionable.
Notice to Council and Views of Council
Notice of application
46. (1) An applicant for an order under this Act, except under sections 21 and 24, shall, without delay, send a copy of the application to the council of any First Nation on whose reserve the structures and lands in question are situated.
Representations by council
(2) On the council’s request, the court that is seized of the application shall, before making its decision, allow the council to make representations with respect to the cultural, social and legal context that pertains to the application and to present its views about whether or not the order should be made.
Notice of order
47. When the court makes an order under this Act, except under section 24, the person in whose favour the order is made shall send, without delay, a copy of the order to the council of any First Nation on whose reserve the structures and lands in question are situated.
Jurisdiction of Courts
Definition of “application”
48. (1) For the purposes of this section, “application” means an application made under any of sections 20, 25, 34 to 38, 52 or 56.
Divorce proceeding pending
(2) When a divorce proceeding — as defined in subsection 2(1) of the Divorce Act — between spouses is pending, the court that has jurisdiction to hear and determine the matter has jurisdiction to hear and determine an application by one of the spouses.
Other proceedings pending
(3) When a proceeding, other than a divorce proceeding, related to the consequences of the breakdown of a spouse’s or common-law partner’s conjugal relationship is pending, the court that is seized of the matter has jurisdiction to hear and determine an application by the spouse or common-law partner.
No pending proceedings
(4) If no divorce proceeding is pending and no court is seized of a matter referred to in subsection (3), the court that has jurisdiction to hear and determine an application by a spouse or common-law partner is the court in the province in which the structures and lands in question are situated or, if that property is situated in more than one province, the court in one of those provinces whose jurisdiction is accepted by both spouses or common-law partners or, in the absence of agreement, either the court in the province in which they habitually reside or, if they have ceased to cohabit, in which they habitually resided on the day on which they ceased to cohabit.
Exception
(5) Despite subsection (4), if the court in a province that is seized of the matter referred to in subsection (3) is not a court as defined in subsection 2(1), the court that has jurisdiction to hear and determine an application by the spouse or common-law partner is the court, as defined in subsection 2(1), in that province.
Proceedings on death
49. (1) A court that is seized of a matter related to the distribution of property on the death of a spouse or common-law partner has jurisdiction to hear and determine an application made under section 26, 40, 41, 44 or 45 by the survivor, the executor of the will or the administrator of the estate.
No pending proceedings
(2) If no court is seized of a matter referred to in subsection (1), the court that has jurisdiction to hear and determine the application is the court in the province in which the structures and lands in question are situated or, if that property is situated in more than one province, the court in the province in which both spouses or common-law partners habitually resided on the day on which the death occurred or, if they ceased to cohabit before the death, in which they habitually resided on the day on which they ceased to cohabit.
Exception
(3) Despite subsection (2), if the court in a province that is seized of the matter referred to in subsection (1) is not a court as defined in subsection 2(1) and the Minister has not consented to the exercise of jurisdiction by the court or directed the matter to the court under section 44 of the Indian Act, the court that has jurisdiction to hear and determine the application is the court, as defined in subsection 2(1), in that province.
Possibility of joinder
50. An application made under this Act, except under sections 21, 23 and 24, may be heard in the same proceeding as another application related to the consequences of the breakdown of the conjugal relationship or the death.
Right of appeal — divorce proceeding
50.1 (1) An order made under this Act in a divorce proceeding as defined in subsection 2(1) of the Divorce Act is deemed, for the purposes of section 21 of that Act, to be an order made under that Act.
Right of appeal — other proceeding
(2) Any other order made under this Act, except under any of sections 21 to 24, may be appealed to the court exercising appellate jurisdiction over the court that made the order.
Rules of Practice and Procedure
Definitions
51. (1) The following definitions apply in this section.
“appellate court”« cour d’appel »
“appellate court”, in respect of an appeal from a court, means the court exercising appellate jurisdiction with respect to that appeal.
“competent authority”« autorité compétente »
“competent authority”, in respect of a court in a province, a court established under the laws of a province or an appellate court in a province, means the body, person or group of persons ordinarily competent under the laws of that province to make rules regulating the practice and procedure in that court.
Rules
(2) Subject to subsection (3), the competent authority may make rules applicable to any proceedings under this Act in a court, or appellate court, in a province, and to any proceedings under section 21 in a court established under the laws of a province, including, without limiting the generality of the foregoing, rules
(a) regulating the practice and procedure in the court, including the addition of persons as parties to the proceedings;
(b) respecting the conduct and disposition of any proceedings under this Act without an oral hearing;
(c) regulating the sittings of the court;
(d) respecting the fixing and awarding of costs;
(e) prescribing and regulating the duties of officers of the court;
(f) respecting the transfer of proceedings under this Act to or from the court; and
(g) prescribing and regulating any other matter considered expedient to attain the ends of justice and carry into effect the purposes and provisions of this Act.
Exercise of power
(3) The power to make rules conferred by subsection (2) on a competent authority shall be exercised in the like manner and subject to the like terms and conditions, if any, as the power to make rules conferred on that authority by the laws of the province.
Not statutory instruments
(4) Rules made under this section by a competent authority that is not a judicial or quasi-judicial body are deemed not to be statutory instruments within the meaning and for the purposes of the Statutory Instruments Act.
Other Provisions
Determination by court — interest or right
52. For the purposes of this Act, a court may, by order, determine whether a spouse, a common-law partner, a survivor or an estate of a deceased spouse or common-law partner holds an interest or right in or to a structure or land situated on a reserve, on application by one of the spouses or common-law partners, the survivor, the executor of the will, the administrator of the estate or the council of the First Nation on whose reserve the structure or land is situated.
Proceedings on death
53. (1) When a spouse or common-law partner makes an application under any of sections 34 to 38 and both spouses or common-law partners or one of them dies before the application is disposed of, the application may be continued by or against the executor of the will or the administrator of the estate of the spouse or common-law partner who dies.
Application by survivor
(2) When a survivor makes an application under section 41, 44 or 45 and the survivor dies before the application is disposed of, the application may be continued by the executor of the will or the administrator of the estate of the survivor.
Application by executor or administrator
(3) When an executor of a will or an administrator of an estate makes an application under section 40 or 45 and the survivor dies before the application is disposed of, the application may be continued against the executor of the will or the administrator of the estate of the survivor.
Notice to Minister or council
54. When a court makes an order under this Act, except under section 24, the applicant shall, without delay, send a copy of the order to the Minister or, if the order is in respect of any structure or land situated on the following reserves or land base, to the council of the First Nation:
(a) a reserve of a First Nation that is subject to a land code as defined in subsection 2(1) of the First Nations Land Management Act;
(b) a reserve of a First Nation that is on the list referred to in subsection 17(5); or
(c) the Kanesatake Mohawk interim land base as defined in subsection 2(1) of the Kanesatake Interim Land Base Governance Act.
Provincial laws of evidence
55. Subject to this Act, the laws of evidence of the province in which any proceedings under this Act are taken, including the laws of proof of service of any document, apply to those proceedings.
Enforcement of orders
56. (1) On application by a person who is neither a First Nation member nor an Indian and in whose favour an order is made under subsection 35(1) or 41(1), a council may, on behalf of the person, enforce the order on a reserve of the council’s First Nation as if the order had been made in favour of the First Nation.
Payment into court
(2) If the council notifies the person that it will not enforce the order or does not enforce it within a reasonable period after the application is made, a court may, on application by the person, vary the order to require the person against whom the order was made to pay into court the amount payable that was specified in the order, if the court is satisfied that it is necessary for the enforcement of the order.
REGULATIONS
Governor in Council
57. (1) The Governor in Council may make regulations that the Governor in Council considers necessary for carrying out the purposes and provisions of this Act, including regulations making rules that are applicable to any proceedings under this Act and prescribing anything that by this Act is to be prescribed.
Regulations prevail
(2) Any regulations that may be made under subsection (1) to provide for uniformity in the rules made under section 51 prevail over those rules.
TRANSITIONAL PROVISIONS
Commencement of application
58. (1) If, under section 17, sections 18 to 56 begin to apply to a First Nation,
(a) sections 33 to 38 apply to spouses or common-law partners in respect of structures and lands situated on a reserve of that First Nation if they ceased to cohabit on or after the day on which those sections began to apply to that First Nation; and
(b) sections 19, 26 and 39 to 45 apply to survivors in respect of structures and lands situated on a reserve of that First Nation if the death occurred on or after the day on which those sections began to apply to that First Nation.
Cessation of application
(2) If, under section 17, sections 18 to 56 cease to apply to a First Nation,
(a) proceedings commenced under those sections in respect of structures and lands situated on a reserve of that First Nation shall be completed as if those sections had not ceased to apply;
(b) section 20 continues to apply to spouses or common-law partners in respect of the family home situated on a reserve of that First Nation if the interest or right in or to the family home was disposed of or encumbered before the day on which that section ceased to apply to that First Nation, and sections 46 to 55 continue to apply in respect of proceedings taken by those spouses or common-law partners under section 20;
(c) sections 33 to 38 continue to apply to spouses or common-law partners in respect of structures and lands situated on a reserve of that First Nation if they had ceased to cohabit before the day on which those sections ceased to apply to that First Nation, and sections 46 to 56 continue to apply in respect of proceedings taken by those spouses or common-law partners under any of sections 34 to 38; and
(d) sections 19, 26 and 39 to 45 continue to apply to survivors in respect of structures and lands situated on a reserve of that First Nation if the death occurred before the day on which those sections ceased to apply to that First Nation, and sections 28, 30 to 32 and 46 to 56 continue to apply in respect of proceedings involving those survivors taken under section 26, 40, 41, 44 or 45.
Subsection 17(2)
59. Subsection 17(2) does not apply to a First Nation that, on the day on which this section comes into force, is a First Nation as defined in subsection 2(1) of the First Nations Land Management Act for a period of three years after that day.
COMING INTO FORCE
Order in council
60. The provisions of this Act, except sections 58 and 59, come into force on a day or days to be fixed by order of the Governor in Council.
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