Family Homes on Reserves and Matrimonial Interests or Rights Act (S.C. 2013, c. 20)

Provisional Federal Rules

Application

Marginal note:First Nations with reserve lands

• 12 (1) Sections 13 to 52 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.

• Marginal note:Framework Agreement on First Nation Land Management Act

  (2) Sections 13 to 52 apply to a First Nation, within the meaning of subsection 2(2) of the Framework Agreement on First Nation Land Management Act, only if

  • (a) on the day on which this subsection comes into force, the land code that the First Nation adopts under the Framework Agreement, as defined in subsection 2(1) of that Act, is not in force; and

  • (b) the First Nation laws that it enacts under section 7 of this Act or subclause 18.3 of that Framework Agreement are not in force.

• Marginal note:Self-governing First Nations that retain reserve land

  (3) Sections 13 to 52 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.

• Marginal note:Declaration

  (4) In the declaration referred to in paragraph (3)(a), the Minister must specify that sections 13 to 52 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.

• Marginal note:List

  (5) The Minister must maintain a list of First Nations in respect of which the Minister has made a declaration and must publish in any manner that the Minister considers appropriate the list and any amendments to the list.

• Marginal note: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 must notify the Minister in writing without delay.

Family Home

Occupation

Marginal note:During conjugal relationship

13 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.

Marginal note:After death

14 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.

Marginal note:Consent of spouse or common-law partner

• 15 (1) Subject to the Indian Act, a spouse or common-law partner who holds an interest or right in or to the family home must not 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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note:Order of designated judge

• 16 (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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Considerations

  (4) In making the order, the designated judge must 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;

  • (f) the period during which the applicant has habitually resided on the reserve; and

  • (g) 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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Service by peace officer

  (7) A peace officer must 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 must inform the applicant as soon as each service is effected.

• Marginal note:No personal liability

  (8) An action or other proceeding must not 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.

Marginal note:Order sent to court for review

• 17 (1) Immediately after making an order under section 16, a designated judge referred to in paragraph (a) or (c) of the definition designated judge in subsection 2(1) must forward a copy of the order and all supporting materials to the court in the province in which the designated judge has jurisdiction.

• Marginal note:Review by court

  (2) The court must 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.

• Marginal note:Decision

  (3) The court, on reviewing the order and the materials, must, 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.

• Marginal note:Notice

  (4) The court must 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.

• Marginal note:Confirmed order

  (5) An order that is confirmed is deemed to be an order of the court.

• Marginal note: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.

• Marginal note:Evidence at rehearing

  (7) The materials referred to in subsection (1) must 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.

• Marginal note:Order on rehearing

  (8) On a rehearing, the court may, by order, confirm, vary or revoke the order made under section 16, and may extend the duration of the order beyond the period of 90 days referred to in subsection 16(1).

• Marginal note:Section 18 application

  (9) If an application is made under section 18 and a rehearing has been ordered but has not begun, that application must be heard at the rehearing.