Assented to 2013-06-19
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
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.
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:
Marginal note:Short title
1. This Act may be cited as the Family Homes on Reserves and Matrimonial Interests or Rights Act.
2. (1) The following definitions apply in this Act.
« 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.
« 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.
« 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.
« 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.
« 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 48.
“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.
« ministre »
“Minister” means the Minister of Indian Affairs and Northern Development.
« 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.
« époux »
“spouse” includes either of two persons who have entered in good faith into a marriage that is voidable or void.
Marginal note: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.
Marginal note:Agreement between spouses or common-law partners
(3) 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.
Marginal note:Former spouse or common-law partner
(4) For the purposes of the definition “matrimonial interests or rights” in subsection (1), subsection (3), section 6, subsections 15(2), (4) and (5) and sections 16, 20, 26, 28 to 33, 43, 45, 48, 49 and 54, a spouse or common-law partner includes a former spouse or common-law partner.
Marginal note:Term not restrictive
(5) The use of the term “application” to describe a proceeding in a court under this Act must 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 are those that are provided for by the rules regulating the practice and procedure in that court.
(6) 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.
Marginal note:Binding on Her Majesty
3. This Act is binding on Her Majesty in right of Canada or a province.
PURPOSE AND APPLICATION
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.
Marginal note: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.
Marginal note: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
Marginal note: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.
(2) The laws must 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.
Marginal note:Notice to provincial Attorney General
(3) When a First Nation intends to enact laws, the council must so notify the Attorney General of any province in which a reserve of the First Nation is situated.
Marginal note:Non-application of Statutory Instruments Act
(4) The Statutory Instruments Act does not apply in respect of the laws.
Marginal note:Submission to members
8. (1) If a First Nation intends to enact First Nation laws under section 7, the council of the First Nation must submit the proposed First Nation laws to the First Nation members for their approval.
Marginal note: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.
Marginal note:Information to be provided
(3) The council must, 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.
Marginal note:Publication of notice
(4) The council must publish a notice of the date, time and place of a vote.
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