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.

Marginal note:Application to vary or revoke order

• 18. (1) Any person in whose favour or against whom an order is made under section 16 or 17 or any person specified in the order may apply to the court in the province in which the designated judge has jurisdiction to have the order varied or revoked

  • (a) within 21 days after the day on which notice of the order made under section 16 is received, or within any further time that the court allows; and

  • (b) at any time if there has been a material change in circumstances.

• Marginal note:Confirm, vary or revoke order

  (2) The court may, by order, confirm, vary or revoke the order, and may extend the duration of the order beyond the period of 90 days referred to in subsection 16(1).

• Marginal note:Evidence at hearing

  (3) The supporting materials for the order made by the designated judge must be considered as evidence at the hearing, in addition to any evidence presented at the hearing, 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:Confidentiality

• 19. (1) Subject to subsection (2), on application by the parties or on its own motion, the court in the province in which the designated judge has jurisdiction may make an order that contains one or more of the following provisions and that is subject to any conditions that the court specifies:

  • (a) a provision excluding members of the public, other than the parties, from all or part of a rehearing referred to in section 17 or a hearing referred to in section 18;

  • (b) a provision prohibiting the publication or broadcasting of any information from the rehearing or hearing, including the name of a party, witness or child in the charge of either party or any information likely to identify any of those persons; and

  • (c) a provision prohibiting disclosure to the public of any information in a court document or record related to a proceeding under section 17 or 18.

• Marginal note:Conditions

  (2) The court may only make the order if it is satisfied that

  • (a) the order is necessary for the safety of a party or witness or the safety or physical or emotional well-being of a child; or

  • (b) protecting a party, witness or child from an undue hardship or adverse effect that could be caused by making the information public outweighs the public’s right to the information.

Exclusive Occupation Order

Marginal note:Court order

• 20. (1) A court may, on application by a spouse or common-law partner whether or not that person is a First Nation member or an Indian, order that the applicant be granted exclusive occupation of the family home and reasonable access to that home, subject to any conditions and for the period that the court specifies.

• Marginal note:Interim order

  (2) The court may make, on application by either spouse or common-law partner, an interim order to the same effect, pending the determination of the application under subsection (1).

• Marginal note:Considerations

  (3) In making an order under this section, the court must consider, among other things,

  • (a) the best interests of any children who habitually reside in the family home, including the interest of any child who is a First Nation member to maintain a connection with that First Nation;

  • (b) the terms of any agreement between the spouses or common-law partners;

  • (c) the collective interests of First Nation members in their reserve lands and the representations made by the council of the First Nation on whose reserve the family home is situated with respect to the cultural, social and legal context that pertains to the application;

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

  • (e) the financial situation and the medical condition of the spouses or common-law partners;

  • (f) the availability of other suitable accommodation that is situated on the reserve;

  • (g) any existing order made on a matter related to the consequences of the breakdown of the conjugal relationship;

  • (h) any family violence;

  • (i) any acts or omissions by one of the spouses or common-law partners that reasonably constitute psychological abuse against the other spouse or common-law partner, any child in the charge of either spouse or common-law partner, or any other family member who habitually resides in the family home;

  • (j) 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 that constitute family violence, or reasonably constitute psychological abuse, against the applicant, any child in the charge of either spouse or common-law partner, or any other family member who habitually resides in the family home;

  • (k) 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;

  • (l) the fact that a person, other than the spouses or common-law partners, holds an interest or right in or to the family home; and

  • (m) the views of any person who received a copy of the application, presented to the court in any form that the court allows.

• Marginal note:Content of order

  (4) An order made under this section may contain provisions such as

  • (a) a provision requiring the applicant’s spouse or common-law partner and any specified person — 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;

  • (b) a provision requiring the applicant’s spouse or common-law partner to preserve the condition of the family home until that person vacates it;

  • (c) a provision directing the applicant to make payments to the other spouse or common-law partner toward the cost of other accommodation; and

  • (d) a provision requiring either spouse or common-law partner to pay for all or part of the repair and maintenance of the family home and of other liabilities arising in respect of the family home, or to make payments to the other spouse or common-law partner for those purposes.

• Marginal note:Emergency protection order revoked

  (5) An existing order made under any of sections 16 to 18 in favour of or against one of the spouses or common-law partners is revoked when the court makes an order under this section, except to the extent specified in that order.

• Marginal note:Application to vary or revoke order

  (6) Any person in whose favour or against whom an order is made under subsection (1), any person specified in the order, or the holder of an interest or right in or to the family home may apply to the court to have the order varied or revoked if there has been a material change in circumstances. The court may, by order, confirm, vary or revoke the order.

• Marginal note:Notice to affected persons

  (7) An applicant for an order under this section must, without delay, send a copy of the application to any person who is of the age of majority or over, whom the applicant is seeking to have the court order to vacate the family home, to any person who holds an interest or right in or to the family home and to any other person specified in the rules regulating the practice and procedure in the court.

Marginal note:Order after death

• 21. (1) A court may, on application by a survivor whether or not that person is a First Nation member or an Indian, order that the survivor be granted exclusive occupation of the family home and reasonable access to that home, subject to any conditions and for the period that the court specifies.

• Marginal note:Interim order

  (2) The court may make, on application by the survivor, an interim order to the same effect, pending the determination of the application under subsection (1).

• Marginal note:Considerations

  (3) In making an order under this section, the court must consider, among other things,

  • (a) the best interests of any children who habitually reside in the family home, including the interest of any child who is a First Nation member to maintain a connection with that First Nation;

  • (b) the terms of the will;

  • (c) the terms of any agreement between the spouses or common-law partners;

  • (d) the collective interests of First Nation members in their reserve lands and the representations made by the council of the First Nation on whose reserve the family home is situated with respect to the cultural, social and legal context that pertains to the application;

  • (e) the medical condition of the survivor;

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

  • (g) the fact that the family home is the only property of significant value in the estate;

  • (h) the interests of any person who holds or will hold an interest or right in or to the family home;

  • (i) the interests of any elderly person or person with a disability who habitually resides in the family home and for whom the survivor is the caregiver;

  • (j) the existence of exceptional circumstances that necessitate the removal of a person from the family home in order to give effect to the granting to the survivor of exclusive occupation of that home, including the fact that the person has committed acts or omissions that constitute family violence, or reasonably constitute psychological abuse, against the survivor, any child in the charge of the survivor, or any other family member who habitually resides in the family home; and

  • (k) the views of any person who received a copy of the application, presented to the court in any form that the court allows.

• Marginal note:Content of order

  (4) An order made under this section may contain provisions such as

  • (a) a provision requiring the survivor to preserve the condition of the family home;

  • (b) a provision requiring any specified person, whether or not that person holds an interest or right in or to the family home, to vacate it immediately or within a specified period, and prohibiting them from re-entering the home; and

  • (c) a provision requiring the executor of the will, the administrator of the estate or the holder of an interest or right in or to the family home to pay for all or part of the repair and maintenance of the family home and of other liabilities arising in respect of it.

• Marginal note:Notice of order

  (5) The survivor must, without delay, give notice of an order made under this section to those who received a copy of the application. However, a peace officer must serve a copy of the order on those persons if the court so directs.

• Marginal note:Application to vary or revoke order

  (6) The survivor, the executor of the will or the administrator of the estate, any person specified in an order made under subsection (1) or the holder of an interest or right in or to the family home may apply to the court to have that order varied or revoked if there has been a material change in circumstances. The court may, by order, confirm, vary or revoke the order.

• Marginal note:Notice to affected persons

  (7) An applicant for an order under this section must, without delay, send a copy of the application to the executor of the will or the administrator of the estate, if the applicant knows who those persons are, to the Minister, to any person who is of the age of majority or over, whom the applicant is seeking to have the court order to vacate the family home, to any person who holds an interest or right in or to the family home and to any other person specified in the rules regulating the practice and procedure in the court.