Matrimonial Real Property Legislation

The Family Homes on Reserves and Matrimonial Interests or Rights Act

The Family Homes on Reserves and Matrimonial Interests or Rights Act is referred to informally as the Matrimonial Real Property on Reserve or MRP law or MRP legislation. As of January 2014 the MRP law had been passed but was not yet “in force”.

The Family Homes on Reserves and Matrimonial Interests or Rights Act – MRP law – has been heavily criticized by organizations across Canada, including the Native Women’s Association of Canada and the Assembly of First Nations, for numerous reasons including failure to:

  • respect inherent Indigenous rights of self-governance
  • follow a process of meaningful consultation with Aboriginal peoples
  • address the causes of violence, including crisis shortages of housing
  • fund legal representation to ensure access to justice for women
  • support First Nations communities in developing their own MRP laws and regimes.

This resource explains the content of the law as it was passed and provides information on how it can potentially be used by Aboriginal women experiencing violence, including:

  • Why MRP legislation could be important to women experiencing violence who are living on reserve
  • What is the MRP legislation?
  • Steps to Obtain a Protection Order Under the MRP legislation
  • Key Information on the MRP legislation for women experiencing violence

Why MRP Legislation is Important to Women Experiencing Violence who are Living on Reserve

Since 1986, provincial family and domestic violence laws which protected abused women by giving them rights to their homes or land did not apply on reserve.

Aboriginal women living on reserve could not get a Court to make any orders with respect to “real” property – that is, land and things, like houses, that are attached to land – on reserve.

This meant that a Court could not make an order with respect to:

  • Division of real property on reserve on relationship breakdown
  • Rights to possess or occupy the family home.

The MRP legislation gives women on reserve a legal right to seek an order for exclusive occupation of the family home when they are experiencing violence.

The MRP law also provides for other protection orders for women on reserve.

Some First Nations have enacted their own laws that relate to real property on reserve on relationship breakdown and violence. Where these laws have been enacted by First Nations, they may govern rather than the MRP law.

What Is The MRP Legislation?

The MRP legislation applies to married and common law spouses who have cohabited for at least one year. One of the spouses must be a First Nations member or an Indian under the Indian Act for the MRP law to apply.

The MRP includes a number of provisions which may protect women:

  • Emergency Protection Orders
  • Exclusive Occupation Orders
  • Equal right to occupancy of the family home during the relationship
  • Entitlement of surviving spouses to occupy home
  • Preventing the spouse whose name is on the land or home from taking steps like selling it or “encumbering it” (with something like a mortgage) without the spouse’s consent
  • Rights to Property and to Share in the Value of Property at Relationship Breakdown.

Emergency Protection Orders

Emergency Protection Orders

Sample Fact Scenario:

emergency_protection_orders

Sample Fact Scenario 3 (from AANDC):

A mother and her children are homeless in the city after living for 15 years in their First Nation community. Before leaving for the city they had endured ongoing abuse by the father and husband. Because he is the only one who holds the right to the family home, they are now living in a shelter miles away from their friends, family and support system, leaving behind a comfortable home, prosperous business, clothing and toys. Without access to applications for emergency protection orders or orders for temporary exclusive occupation of the family home, this woman was not able to protect herself or her children while remaining in the community. With the … federal rules … she could make either or both of those types of application order to stay in the home, while she determines the next steps in continuing to keeping her family safe, without having to uproot her children.

Source: Aboriginal Affairs and Northern Development Canada

Aboriginal women and non-Aboriginal women who live on reserve and who experience family violence can seek an Emergency Protection Order (EPO) under the MRP law.

An EPO will be granted where:

  • family violence has occurred; and
  • 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.

The abused woman can make the application without notice to the abusive man (“ex parte”).

A peace officer or other person can also apply for an EPO on the woman’s behalf.

A woman experiencing violence can make the application for the EPO whether or not she is presently in the home.

Family violence is defined as any of the following acts or omissions against a spouse, a child under the care of either spouse, or any other person “habitually” – usually – resident in the home:

  • An intentional application of force without lawful authority or consent, excluding acts done in self-defence.
  • An intentional or reckless omission that causes physical harm or property damage.
  • An intentional or reckless act or omission that causes a reasonable fear of bodily harm or property damage.
  • Sexual assault, sexual abuse, or the threat of either.
  • Forcible confinement without lawful consent.
  • Criminal harassment.

If a judge is satisfied family violence has occurred and the situation is urgent, the judge may grant an EPO that lasts up to 90 days. This may be extended beyond 90 days on further application.

A judge may make a finding that family violence has occurred whether or not charges have been laid, dismissed, or withdrawn, or whether a conviction has or could be obtained.

The EPO may contain any of the following provisions:

  • Granting the woman applicant exclusive occupation and reasonable access to the home.
  • Requiring the man and any other specified person who lives in the home, whether First Nations or not, to vacate – leave – the home.
  • Directing a peace officer to remove the abusive man or other specified residents, whether First Nations members or not, from the home.
  • Prohibiting vacated parties from being near the home.
  • Directing a peace officer or other person to accompany the abused man or any specified person to the home or another location to remove personal belongings.
  • Any other provision the judge considers necessary for the immediate protection of person or property.

In making the EPO, the judge must consider among other things:

  • History and nature of family violence
  • Existence of immediate danger to person or property
  • The best interests of any child in the charge of either spouse, including the interest of a First Nations child to maintain a connection with that First Nation.
  • The interests of any elderly person who habitually resides in the home, and for whom either spouse is a caregiver.
  • The fact that a person other than the spouses holds an interest in the home.
  • The period during which the applicant woman has lived on the reserve.
  • The existence of exceptional circumstances that necessitate the removal of another person from the home to give effect to the order, including where the other person has been involved in family violence.

Violation of an EPO is a criminal offence and can also result in heavy fines. EPOs can give women a temporary right to exclusive occupation of the home, but they do not change who holds an interest or right in the home.

Exclusive Occupation Orders

For women who are experiencing violence, EPOs are a shorter term remedy.

If a woman wants an order which gives her possession of the home to the exclusion of the abusive man for a longer period of time, she needs to apply for an Exclusive Occupation Order (EOO).

As with EPOs, EOOs do not change who has an interest in the home, thus ensuring that non-Aboriginal spouses who are granted exclusive occupation do not gain an interest in First Nation lands.

When deciding whether to grant an EOO, the court must consider among other things:

  • The best interests of any children who live in the home, including the interest of First Nations children in maintaining a connection with that First Nation.
  • Terms of any agreement between the spouses.
  • Collective interest of First Nations members in reserve lands and any representations made by the council of the First Nation as to the social, cultural, or legal context of the application.
  • The period during which the applicant has lived on the reserve.
  • The medical condition and financial situation of each spouse.
  • The availability of other suitable housing on the reserve.
  • The terms of any existing order dealing with relationship breakdown.
  • Family violence.
  • Any acts or omissions that constitute psychological abuse against the spouse, a child in charge of either spouse, or any other family member habitually resident in the home.
  • The interests of any elderly person habitually resident in the home for whom either spouse is a caregiver.
  • The fact that another person holds an interest in the home.
  • The views of anyone who received a copy of the application presented to the court in any form the court allows.

An EOO may contain any of the following provisions:

  • Requiring the abusive man and any other person, whether First Nations or not, to leave the home and not to re-enter within a specified period.
  • Requiring the abusive man to preserve the condition of the home until he leaves it.
  • A provision directing the woman to make payments toward the cost of accommodation for the other spouse.
  • Requiring either spouse to pay for all or part of the repair or liabilities associated with the family home.

Either party can apply to the court to have the EOO varied if there’s a material change in circumstances.

Exclusive Occupation Orders

Sample Fact Scenario:

exclusive_occupation_orders

Sample Fact Scenario 5 (from AANDC):

After five years of marriage, a couple began experiencing problems and has decided to separate. Both of them want to stay in the family home they built together in the community. The wife feels she is more entitled to remain in the home as she has lived in the community all her life while the husband only returned to the community when they married. Two years into their marriage the husband’s grandmother and his niece, whom the grandmother was raising in the community, came to live with the couple as the grandmother was finding it harder to manage on her own. The husband is the primary caregiver, as the wife’s job involves frequent travel. Should the couple not be able to resolve the issue on their own, the federal … legislation would allow each of them to apply for exclusive occupation of the family home. When deciding on the order, the judge would consider, among other factors, the period of time each individual has lived on the reserve, the best interest of any child and the interests of any elderly person or person with a disability who habitually resides in the family home.

Source: Aboriginal Affairs and Northern Development Canada

Both spouses may occupy the home during the relationship:

Under s.13 of the MRP law, each spouse (whether a First Nations member or not) has the right to occupy the family home.

This is important because, before the MRP law, where there was a certificate of possession (“CP”) or other leasehold interest in the home or land, only the spouse who had the legal right to possession was protected. Now, each spouse has the right to occupy the house for as long as they are spouses, regardless of who holds the CP or lease. An abusive man cannot legally threaten to evict or actually kick out his spouse.

Entitlement of surviving spouses to occupy home

The right of occupancy of both spouses also protects women when their spouses die. Prior to the MRP law, a woman (and her children) could be immediately evicted by the husband’s family or others if her name was not on the lease or she otherwise had no right or interest in the home (for example, . her name was not on the Certificate of Possession) in the home.

Under the MRP law, a judge can order that the woman (even if she 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 and the collective interests of the First Nation members.

Consent Required to Sell or “Encumber” the Family Home

During the spousal relationships, the spouse who holds an interest or right in the family home cannot sell or otherwise “encumber” (meaning take out a loan against the home or land or otherwise give someone else a legal right to the home or land) the home without the other spouse’s free and informed written consent. This is true whether or not the other spouse is a First Nations member or has status. If a transaction occurs without consent, a court may set it aside; however, if the transaction was made in good faith and for value, it must stand. The spouse who did not consent to the transaction can seek damages. The spouse who disposed of or encumbered the interest has the burden of proving that the other spouse consented.

Rights of Surviving Spouses

Sample Fact Scenario:

rights_of_surviving_spouses

Without this provision, the holder of a right in the home would be able to do whatever he wanted with his interest in the home, because his spouse (if she was not named on, for example, the CP or lease) would have no right or interest in the home. This provision prevents the holder of an interest from selling, giving, or borrowing against the home without the consent of the other spouse.

Division of Property on Relationship Breakdown

Division of Property

Sample Fact Scenario 4 (from AANDC):

A woman lived in a common-law relationship in her First Nation community for 18 years and is now separating. She contributed to building the family home and made payments on the housing loan, but her name is not on the Certificate of Possession. Upon separation she was asked to leave the home she helped build for 18 years. Under the … federal rules…she would be entitled to half of the value of the interest in the family home.

Source: Aboriginal Affairs and Northern Development Canada

The last set of entitlements under the MRP all relate to preservation or division of property.

The key information is that:

  • Spouses (formerly married or common law) are entitled to half the value of the interest in the family home and other property on relationship breakdown, similar to provincial family laws. In some provinces only married couples are required to share the value of property at relationship breakdown. In other provinces, sharing of property is required whether you are married or common law. Under the MRP legislation, both married and common law couples are required to share property at relationship breakdown.
  • The courts can enforce this right by transferring the interest in real property between spouses, but such transfers can only be made to members of the First Nations community in question. In other words, using the Certificate of Possession as an example, the Court can Order that the CP be put in the name of the woman if she is a member of the First Nation where the CP is held.
  • The Court can also make an order that a spouse cannot sell or give away or otherwise “deplete” (reduce the value of) the property and assets of the couple.

The Steps To Obtain An EPO Or EOO

Because the MRP law is not yet in force, the application forms and processes are not yet in place. However, in general, the steps to obtain these two orders are expected to include the following, based on the MRP legislation.

Emergency Protection Order

  1. Go to the courthouse or a police station [or perhaps a community location once the law is in force] to complete an application for the EPO.
  2. The courthouses where that application will be filed are:
    1. For the Province of Ontario, the Superior Court of Justice,
    2. For the Province of Prince Edward Island or Newfoundland, the trial division of the Supreme Court of the Province,
    3. For the Province of Quebec, the Superior Court,
    4. For the Provinces of Nova Scotia and British Columbia, the Supreme Court of the Province,
    5. For the Province of New Brunswick, Manitoba, Saskatchewan or Alberta, the Court of Queen’s Bench for the Province, and
    6. For Yukon or the Northwest Territories, the Supreme Court, and in Nunavut, the Nunavut Court of Justice.
  3. Since the courts which have jurisdiction are a higher level court, it may be judges (and not justices of the peace, like in EPOs under provincial domestic violence legislation) who will hear the application.
  4. If the order is granted, the order can last for up to 90 days, but it can be shorter.
  5. A peace officer will serve the order on the abusive man and is required to inform the woman when the order has been served.
  6. As soon as the order is served, it is binding on the man. He must comply with the conditions in the order, including leaving the house within the time frame specified in the order (immediately or at a later specified date).
  7. The woman is required to immediately send a copy of the order to the First Nation on whose reserve the house is situated. It may also be necessary to send a copy to the Minister if the reserve is subject to a land code as described in the First Nations Land Management Act, the First Nation is on the Minister’s list of self-governing First Nations to which Bill S-2 applies, or is part of the Kanestake Mohawk interim land base.
  8. The order will be reviewed by a separate judge within 3 days of the order being issued. If the reviewing court is concerned and orders a re-hearing, the order stays in effect until it is reheard. At the rehearing, the court can extend the order beyond 90 days.
  9. Either spouse can apply to have the order varied or revoked within 21 days of notice being received, or later if the court allows it or there has been a material change in circumstances.
  10. In some circumstances the First Nation on whose reserve the family home is situated can make representations at this hearing.

Exclusive Occupation Order

  1. A peace officer cannot file this application for the woman. She or her lawyer must file it. The courts where the application must be filed are:
    1. For the Province of Ontario, the Superior Court of Justice,
    2. For the Province of Prince Edward Island or Newfoundland, the trial division of the Supreme Court of the Province,
    3. For the Province of Quebec, the Superior Court,
    4. For the Provinces of Nova Scotia and British Columbia, the Supreme Court of the Province,
    5. For the Province of New Brunswick, Manitoba, Saskatchewan or Alberta, the Court of Queen’s Bench for the Province, and
    6. For Yukon or the Northwest Territories, the Supreme Court, and in Nunavut, the Nunavut Court of Justice.
  2. This application will take longer than an EPO.
  3. When the application is filed, the woman must then send a copy to everyone over the age of 18 that will be required to leave the house, to everyone who has an interest or right to the house, and to anyone the court’s rules specify.
  4. This is not an ex parte application, so both the woman and the abusive spouse will be able to make submissions and representations to the court. The First Nation on whose reserve the land is situated may also choose to make representations on the cultural, social, and legal context of the application.
  5. The judge will decide, based on a list of factors, whether the Exclusive Occupation Order will be granted.
  6. If the Exclusive Occupation Order is granted. If the man is ordered to leave, it will either be immediately or within a specific time frame. The order is not permanent. It can be many years long, but it will eventually expire.
    1. Unless the Exclusive Occupation Order says otherwise, any Emergency Protection Order is revoked. Accordingly, an abused woman seeking an EOO should consider whether she needs to request similar protective conditions as were contained in the EPO.
    2. If the EOO application is successful, the woman may be required to pay toward accommodations for her spouse and may also receive less in the eventual division of assets.
  7. Anyone for or against whom the order is made can apply to have it changed or revoked.

Key Information for Women about the MRP Law

In the Building Service Capacity training sessions we found that:

  • In some locations or jurisdictions women were not aware of the MRP legislation at all
  • In other locations or jurisdictions, women were very aware of the political controversy surrounding the law but not about the actual content of the law and how it might be used by abused women.

The key information for women living on reserve, therefore includes that:

  • If their First Nations band has not enacted its own MRP law, the federal MRP law and rules will apply.
  • The MRP law contains provisions for Emergency Protection Orders and Exclusive Occupation Orders
  • The law contains provision for division of property on relationship breakdown, which is a right which has not been available to women living on reserve since 1986
  • As of January 2014, the law is not yet in force and so is not yet available for them to use
  • Their First Nation may have already enacted its own MRP law
  • Unlike EPOs and family law orders under provincial domestic violence or family law:
    • Judges are required to consider the rights and interests of the collective First Nation in making any order, including maintaining the connection of children with their First Nations communities
    • The First Nation will receive notice of all EPO orders granted (except those subject to confidentiality orders) and of any EOO applications. The First Nation also has the right to make representations on EOO applications
    • There may be significant barriers in accessing these rights and remedies. A legal battle over division of property would likely require legal representation and would be expensive. It is not clear yet what legal aid or other financial resources and supports will be available to support women seeking Emergency Protection Orders and Exclusive Occupation Orders

Current as of January 2014.

Useful Resources

Understanding Family Property Rights on Reserves

Legislation

Federal