On June 19, 2013, parliament passed Bill S-2, Family Homes on Reserves and Matrimonial Rights or Interests Act. The new law affects “matrimonial real property” (family property) on reserves. The Act is divided into two parts.
The first part is known as the First Nation Law Making Mechanism and it came into effect on December 16, 2013. The second part, called the “Provisional Federal Rules” comes into force 12 months later than that date, on December 16, 2014.
Background: Family Property on Reserves
When relationships break down, couples usually have to decide what to do about the property they gained or built up during the relationship. When married or common-law partners cannot agree, the provinces set the laws about how to divide their family property.1 In Ontario, the Family Law Act is the law that governs how to divide property when relationships break down2. However, provincial laws do not apply to real property located on reserves.3
Real property includes land held by you or your spouse/partner as well as houses, sheds, and anything else on the land. Matrimonial real property refers mainly to the family home where both spouses or common-law partners live during a marriage or common-law relationship.
The law that deals with on-reserve property is called the Indian Act.4 However, there is nothing in the Indian Act to say what should happen to family property when couples living on reserves break up.
As a result, there was a “gap” in the law, meaning that there was no protection for people (whether or not they were members of the First Nation) if the partner who owned the on-reserve property kicked the other partner out or wanted to sell the property without their permission. There was no requirement to compensate the other partner or share the money from the sale. The lack of protection is particularly dangerous for women wanting to leave abusive relationships. The gap also negatively affected women living on reserves in the following ways5:
- The most valuable property a couple has is often on the reserve. Men usually hold possession of the property, including the family home. Women and children were often forced to find somewhere else to live.
- Most reserves are suffering from a serious housing shortage, so women who were kicked out of the family home, often had to leave their reserve.
- Rules about who holds land on reserve can be complicated, so it can be difficult to enforce possession.
- There is limited access to legal information, courts, lawyers, protection, or police officers to help women enforce their legal rights.
- Many women on reserves also face obstacles such as lack of social and health services, geographic isolation, language barriers, and lack of access to education which makes enforcing their rights more difficult.
National organizations, like the Native Women’s Association of Canada and international organizations, like the United Nations, have asked the Canadian government to address this problem for many years.6 In response, the government finally passed the Family Homes on Reserves and Matrimonial Rights or Interests Act on June 19, 2013 to try and fill the gap in the law. 7
What Does the New Law Say?
The first part of the Act allows for First Nations to make their own laws about Matrimonial Real Property on reserves. The second part of the Act states that if First Nations do not make their own laws or until they make their own laws, the Federal Government’s provisional rules will apply.
First Nations have up to one year, from June 16, 2014 to December 16, 2014 to make their own laws on reserves. December 16, 2014 is the date when the Federal provisional rules come into force. If by then, the communities have not made their own laws, then the government’s rules will apply on reserves. But, even after this one year period, the government’s rules will stop applying whenever a First Nation decides to make its own rules.
There are a few exceptions and the rules will not apply to every First Nation. To find out whether the rules apply to your community, you can visit the government’s website.
The new law applies to married couples and common-law couples, if at least one of them is a First Nation member or an Indian.8 The Indian Act definition of “common-law” applies in this Act and means the partners have lived together in a marriage-like relationship for at least one year.9
The new law includes rules that cover three main issues:
- Emergency protection orders:
A judge can order an emergency protection order for a person who has been abused by her or his partner. The order can allow one partner to stay in the home and make the other person leave or stay away. This order is granted based on the best interests of the family. It can last up to 90 days and it can be renewed.
Occupation refers to the right to stay in a place, usually the home. Both partners have the right to be in the home during the relationship, even if one of the partners is not Aboriginal. If one partner dies, the other partner (even if non-Aboriginal) who does not own the home can live in it for up to 180 days. After separation, a judge can order that a partner who does not own the house (even if the person is non-Aboriginal) can live in it for up to 180 days. A judge has to make this decision taking into account many factors, including the best interests of the children, the situation of the partner, collective interests of the First Nation members etc.
Possession refers to the right to access the value of the property. Each partner in the relationship is entitled to half of the value of the family property. If one partner is not Aboriginal, and the property is on a reserve, the Aboriginal partner will have to pay the other partner to compensate her or him for half of the property’s value.
The provisional rules do not allow non-Aboriginal people to own property on a reserve or to sell property on reserve. All of the rules are enforced by provincial courts.10
Once the law takes effect, if you separate from your spouse or common law partner, any property you have on a reserve will be divided according to either your Band’s property laws, or the federal provisional rules outlined above. Rules about emergency protection orders and occupation will also come into force at that time, depending on whether or not your Band has created its own laws.
After 8 years of marriage, Jake and Beverley are getting divorced. Jake owns the land and only his name is on the Certificate of Possession. He wants to sell the home, but if he does, Beverley will have nowhere to live. Before Bill S-2, a court could not give an order to stop Jake from selling the land without Beverley’s permission or to allow her to have temporary or permanent possession of the family home. If Jake did not agree to compensate her for her share in the value of the property, she did not have legal options to pressure him.
In the same situation, under Bill S-2, Beverley will be covered by either the federal provisional rules, or the Band’s own rules about the division of property. Under the federal provisional rules, Jake could not sell the land without her consent and would have to compensate her if he continued to possess the family home. A court could also grant an order allowing Beverley to have temporary or permanent possession of the home, depending on the situation.
Bill S-2 Does Not Do Enough
Although Bill S-2 is an attempt to fill the gap in the law, the specific content of the law has received a lot of criticism from many Aboriginal organizations. The government has been criticized for failing to do proper consultations and for ignoring many of the recommendations from Aboriginal groups regarding these issues. Groups like the Native Women’s Association of Canada are not convinced that the law will solve the problems associated with matrimonial property on reserves because, among other things, it does not address the complex socio-economic issues impacting families.11 The legislation has also been criticized for:
- Not providing enough time or resources for Bands to create and implement their own laws
- Not providing an effective way for Band members in remote areas to access the courts to enforce the new rules
- Not addressing the inadequacy of policing or access to justice on many reserves
There are major concerns that Bill S-2 does not offer the comprehensive solutions or supports needed to address the complexities of family disputes and issues that contribute to family violence. While the new law may offer women on reserves some legal protection, resources are not provided to First Nations’ communities for policing, shelters, increased family supports, training or capacity building needed to effectively implement the laws. Non-legislative action like funding for legal aid and access to alternative dispute resolution mechanisms are also missing.
Furthermore, to enforce these rights a woman must have access to the justice system. Many reserves are in areas where there is limited access to courts and lawyers, and also limited or no access to emergency shelters and counselling services.12 For a woman trying to leave an abusive situation, any delay or barrier in accessing supports may increase her risk of family violence or force her to leave the reserve.13 Without accommodation or support, she may find herself in essentially the same position as she was in before Bill S-2 was passed. As the Executive Director of the Native Women’s Association of Canada (NWAC), Michèle Audette, asks:
“In all the violent situations we have or are facing in our communities, what are the protections going to be for our women? And who’s going to reinforce that? First Nations probably don’t have the capacity financially or humanly to give those services.” 14
To adequately address the issues of matrimonial real property on reserves, any remedy needs to incorporate a comprehensive approach driven by First Nations, one that includes the voices of Aboriginal women.
Laws to address relationship breakdown and the division of property on reserve are necessary, but Bill S-2 does not address many of the problems that Aboriginal organizations, women’s organizations, and international organizations raised in consultations with the Canadian government. It addresses the need to have laws about relationship breakdown on reserves, but it fails to address complex underlying issues that contribute to making Aboriginal women particularly vulnerable.
- The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11, s. 92(13).
- Family Law Act, RSO 1990, c. F.3, ss. 4-16.
- Derrickson v. Derrickson,  1 S.C.R. 285; Paul v. Paul  1 S.C.R. 306 at para.12.
- Indian Act, RSC 1985, c. I-5, s. 88.
- Standing Senate Committee on Human Rights, A Hard Bed to Lie in: Matrimonial Real Property on Reserve (Interim Report) (Ottawa: Standing Senate Committee on Human Rights, 2003).
- See UN Committee on Economic, Social, and Cultural Rights, “UN Committee on Economic, Social, and Cultural Rights: Concluding Observations: Canada” (1998), online: http://www.refworld.org/publisher,CESCR,,CAN,3f6cb5d37,0.html; and Wendy Grant-John, “Report of the Ministerial Representative Matrimonial Real Property on Reserves” (2007) at 47-52, online: http://www.nwac.ca/files/download/rmr_e.pdf.
- Bill S-2, An Act respecting family homes situated on First Nations reserves and matrimonial interests or rights in or to structures and lands situated on those reserves, 1st Sess, 41st Parl, 2013 (assented to June 2013).
- Supra note 4, s.2(1).
- Native Women’s Association of Canada, “Bill S-2: Family Homes on Reserves and Matrimonial Interests or Rights Act” (2011), online: http://www.nwac.ca/sites/default/files/imce/Final%20NWAC%20Press%20Release%20on%20Bill%20S-2%20November%2025%202011.pdf.
- Ibid. at 1.
- Jennifer Ashawasegei, “Suspicions raised as bill takes odd route to become law” (2012) 30:9 Windspeaker, online: http://www.ammsa.com/publications/windspeaker/suspicions-raised-bill-takes-odd-route-become-law