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

Marginal note:Improvident depletion

39 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 21 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 survivor in an order made under section 36.

Marginal note:Enforcement of agreements

40 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 36(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

Marginal note:Notice of application

• 41 (1) An applicant for an order under this Act, except under sections 16 and 19, must, 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.

• Marginal note:Representations by council

  (2) On the council’s request, the court that is seized of the application must, 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.

Marginal note:Notice of order

42 When the court makes an order under this Act, except under section 19, the person in whose favour the order is made must 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

• 43 (1) For the purposes of this section, application means an application made under any of sections 15, 20, 29 to 33, 48 or 52.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note:Proceedings on death

• 44 (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 21, 35, 36, 39 or 40 by the survivor, the executor of the will or the administrator of the estate.

• Marginal note: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.

• Marginal note: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.

Marginal note:Possibility of joinder

45 An application made under this Act, except under sections 16, 18 and 19, may be heard in the same proceeding as another application related to the consequences of the breakdown of the conjugal relationship or the death.

Marginal note:Right of appeal — divorce proceeding

• 46 (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.

• Marginal note:Right of appeal — other proceeding

  (2) Any other order made under this Act, except under any of sections 16 to 19, may be appealed to the court exercising appellate jurisdiction over the court that made the order.

Rules of Practice and Procedure

Marginal note:Definitions

• 47 (1) The following definitions apply in this section.

  appellate court

  appellate court, in respect of an appeal from a court, means the court exercising appellate jurisdiction with respect to that appeal. (cour d’appel)

  competent authority

  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. (autorité compétente)

• Marginal note: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 16 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.

• Marginal note:Exercise of power

  (3) The power to make rules conferred by subsection (2) on a competent authority must 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.

• Marginal note: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

Marginal note:Determination by court — interest or right

48 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.

Marginal note:Proceedings on death

• 49 (1) When a spouse or common-law partner makes an application under any of sections 29 to 33 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.

• Marginal note:Application by survivor

  (2) When a survivor makes an application under section 36, 39 or 40 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.

• Marginal note:Application by executor or administrator

  (3) When an executor of a will or an administrator of an estate makes an application under section 35 or 40 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.

Marginal note:Notice to Minister or council

50 When a court makes an order under this Act, except under section 19, the applicant must, 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 within the meaning of subsection 2(2) of the Framework Agreement on First Nation Land Management Act;

• (b) a reserve of a First Nation that is on the list referred to in subsection 12(5); or

• (c) the Kanesatake Mohawk interim land base as defined in subsection 2(1) of the Kanesatake Interim Land Base Governance Act.

Marginal note:Provincial laws of evidence

51 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.

Marginal note:Enforcement of orders

• 52 (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 30(1), section 33, subsection 36(1) or section 40, 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.

• Marginal note: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

Marginal note:Governor in Council

• 53 (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.

• Marginal note:Regulations prevail

  (2) Any regulations that may be made under subsection (1) to provide for uniformity in the rules made under section 47 prevail over those rules.

Transitional Provisions

Marginal note:Commencement of application

• 54 (1) If, under section 12, sections 13 to 52 begin to apply to a First Nation,

  • (a) sections 28 to 33 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 14, 21 and 34 to 40 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.

• Marginal note:Cessation of application

  (2) If, under section 12, sections 13 to 52 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 must be completed as if those sections had not ceased to apply;

  • (b) section 15 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 41 to 51 continue to apply in respect of proceedings taken by those spouses or common-law partners under section 15;

  • (c) sections 28 to 33 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 41 to 52 continue to apply in respect of proceedings taken by those spouses or common-law partners under any of sections 29 to 33; and

  • (d) sections 14, 21 and 34 to 40 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 23, 25 to 27 and 41 to 52 continue to apply in respect of proceedings involving those survivors taken under section 21, 35, 36, 39 or 40.